Wednesday, July 5, 2017

Trump Can Make 'Buy American' More Than A Slogan. Just Enforce A 1980 Law

By Professor Justin Hughes
Hon. William Matthew Byrne, Jr. Chair

This op-ed originally appeared in the July 3, 2017 edition of USA Today

China is not manipulating its currency to our detriment, and NAFTA is a good thing for the U.S. economy. But Donald Trump has been right in his basic observation — as both candidate and president — that we need to do more to address our country’s trade deficit, how other countries "game" international trade, and how American jobs move offshore. Trump may not realize it but he could advance his “Buy American and Hire American” goals by activating a policy tool already buried in U.S. patent law.

Year in and year out, the federal government has spent tens of billions of dollars supporting scientific and technological research —­ for example, more than $131 billion in 2015 alone. Before 1980, federal agencies had different policies on inventions resulting from this federally funded research, with most of them reserving any patent rights to the federal government. That meant there was a vast trove of inventions collecting dust in government files: As of 1980, there were 28,000 patents held by the government this way — and fewer than 4% had been licensed for commercial use. While many of those were patents on military technology — and shouldn’t be licensed — there was clearly underutilization of a vast technological portfolio.

Read the full op-ed here >>

Monday, July 3, 2017

On Independence Day, Professor Sees Hope in Constitution

By Professor Gary C. Williams
Johnnie L. Cochran, Jr. Chair in Civil Rights

As Independence Day approaches I am apprehensive. Terms such as “Muslim ban” and “fake news” are bandied about with impunity. The concepts of “extreme vetting” and building a wall alarm me. At the same time I am grateful. Three essential building blocks in the foundation of this nation - freedom of the press, the right to petition the government for redress of grievances, and the right of free speech - are at the forefront as we confront today’s challenges.

The press has been courageous in fulfilling its role under the first block. It has reported truthfully the actions of politicians of all stripes. It is reporting on, and investigating, Russian interference with our elections. And despite presidential claims that the press is “the enemy of the people,”[1] it has persisted in reporting on the actions and misrepresentations of our government and its leaders.

Our profession has seen some of its finest moments helping the defenseless utilize the second building block – the right to petition the courts for redress of grievances. Lawyers volunteered to represent people caught in the dragnet cast by the “Muslim ban.” Lawyers toiled from dawn to midnight crafting briefs challenging the worst aspects of that ban. And our courts have, thus far, remained steadfast in enforcing the principles of equal protection and freedom of religion - holding that a ban based upon religious affiliation violates the basic tenets of the Bill of Rights.

Dr. Martin Luther King once declared: “Every person of humane convictions must decide on the protest that best suits his [and her] convictions, but we must all protest.”[2] The ability to protest is protected by the third building block, the right of free speech. Americans have exercised that right by showing up at airports to protest the “Muslim ban.” And Americans poured out in unprecedented numbers to protest the political acceptance of sexist language and behavior.[3]

Our nation is not perfect. The Constitution that contains those building blocks at one time condoned slavery and denied women the right to vote. During World War II it allowed American citizens of Japanese descent to be imprisoned solely because of their race. But those building blocks made it possible to correct those errors. Today I see hope for our future.

[1] Trump Embraces ‘Enemy of the People,’ a Phrase With a Fraught History, New York Times, ANDREW HIGGINS, February 26, 2017
[2] Dr. Martin Luther King, 1967
[3] More than 500,000 in Washington D.C., and 400,00 in New York city alone. Women’s March Highlights as Huge Crowds Protest Trump: ‘We’re Not Going Away,’ ANEMONA HARTOCOLLIS and YAMICHE ALCINDOR, New York Times, January 21, 2017

Monday, June 19, 2017

Loyola Professors Commenting on SCOTUS News

Loyola Law School, Los Angeles professors are commenting on the news arising out of the U.S. Supreme Court today:

GRANT OF CERT

Gill v. Whitford (Wisconsin gerrymandering case)
OPINIONS

Bristol-Myers Squibb Co. v. Superior Court of California, San Francisco County (civil procedure/personal jurisdiction)
  • Professor Adam Zimmerman: “In terms of impact, I think this case is kind of the sleeper case of the term,” says the complex litigation expert and Gerald Rosen Fellow. “It's going to impact thousands of cases in state MDLs, class actions and, I think, federal MDL litigation (which comprises nearly 40% of all cases in our federal courts.)” Zimmerman’s immediate reaction to the opinion is available online via @Adam_Zimmerman
  • Professors Allan Ides & Simona Grossi: The civil procedure experts filed an amicus brief in the case (below). 
Matal v. Tam (The Slants case; disparagement clause in trademark approval/First Amendment)
  • Professor Justin Levitt: This case decides that the Federal Trademark Office can't refuse to register a trademark that may ‘disparage’ or ‘bring ... into contemp[t] or disrepute’ individuals or groups,” writes the constitutional law expert. “The case follows a line of recent cases looking very skeptically at government laws or policies that burden speech -- and an even longer line of recent cases looking even more skeptically at government laws or policies that treat some private speech worse than others based on its content or viewpoint. The Court divided 4-4 on the precise legal framework, but all 8 Justices hearing the case (Justice Gorsuch wasn't yet on the Court when this was heard) agreed that the statute prohibiting registration of disparaging marks was out of bounds, and that the question wasn't particularly close. This impacts not only The Slants (which will be able to get their name trademarked), but also some other prominent and very controversial brands, like the Washington Redskins, whose trademark had been canceled as ‘disparaging’ in June 2014.” 
  • Professor Jennifer Rothman: “The decision is no surprise. The 8-0 decision -- that Gorsuch did not participate in -- holds that the bar to registering trademarks that are deemed ‘disparaging’ or offensive is struck down. This means that The Slants can register their mark for their band, even if some view it as disparaging or insulting to Asian people, and it also means that the Washington Redskins marks which were cancelled for the same reason will be reinstated. The decision also likely eliminates the bar on registering marks that are scandalous or immoral."

Tuesday, June 13, 2017

Some Thoughts on Microsoft v. Baker

By Professor Adam Zimmerman

The big story in Microsoft v. Baker -- the Supreme Court's latest decision involving class actions -- is the question it did not reach today: Do lead plaintiffs have standing to continue pursuing a class action after their individual claims go away?

By way of background, there were two issues in Microsoft v. Baker. The one most people are familiar with is a highly technical question. Whether the plaintiff's strategy in the case--which was to voluntarily dismiss the case with prejudice in order to appeal the denial of class certification--is an impermissible end-run around Rule 23(f)? Rule 23(f) was created nearly two decades ago to permit appellate courts to review whether or not a district court properly certified a class action. Because the decision to certify a class action -- or not -- was so momentous, before Rule 23(f), a grant often would result in a quick settlement, while a denial would often spell the "death knell" of the case. The class action rules were amended in 1998 to give the appellate courts power to hear class action cases in their discretion, even though the appellate courts usually won't hear a case until after the lower court issues a final judgment. Microsoft involved what the Court felt was an improper workaround that process. Rather than rely on 23(f), plaintiffs could voluntary dismiss their claims, receive a final judgment and then appeal the denial of class certification.

Wednesday, June 7, 2017

New York Once Again Floats Right of Publicity Law

By Professor Jennifer E. Rothman

The New York Assembly introduced yet another right of publicity bill last week, Assembly Bill A08155. Such legislation is introduced almost every year in New York―focused on trying to add a post-mortem right which currently does not exist under New York law. Thus far, these bills have all failed to proceed. This time may be different.

The stars are aligning for passage of some bill―even if it hopefully is not this one. One reason for this is that the media companies, that usually strongly oppose such bills, are more willing to compromise this year if the bill provides them with an explicit exemption to avoid liability, particularly in the context of expressive works and news. This sea-change has been brought by a decision earlier this Spring in which a New York appellate court, in Porco v. Lifetime Entertainment, allowed a right of privacy claim to proceed against a television network for its fictionalized drama about a real-life murder. The plaintiff was convicted of having committed the murder, but objected under New York’s privacy statute to the airing of the 2013 Lifetime movie, "Romeo Killer: The Christopher Porco Story."

The proposed bill does provide exemptions that should make media companies happy―including an exemption that would protect Lifetime from Porco’s lawsuit. But in the process a lot of other changes to New York’s laws on privacy are included, and very few of them are wise.\

Tuesday, June 6, 2017

Intellectual Property – Ethiopia’s Experience (continued)

Professor Justin Hughes recently completed a State Department trip to Ethiopia to conduct talks on intellectual property. The U.S. embassy in Addis Ababa's official blog is publishing a series of his posts on the topic. The first was published on June 1, 2017.

In my last blog post, I focused on Ethiopia’s coffee industry; now let’s talk more broadly about Ethiopian’s intellectual property (IP) laws and how those laws potentially impacts the country’s growth.

Ethiopia is almost unique among African countries for its lack of participation in the multilateral treaties that govern the international IP system. There are two main multilateral conventions for IP: the Paris Convention (for patents and trademarks) and the Berne Convention (for copyright law). Today, those treaties have 195 and 183 members, respectively. Ethiopia is the largest economy not participating in the Paris Convention and perhaps the second largest economy not participating in the Berne Convention (after Iran).

Monday, May 29, 2017

Intellectual Property – Ethiopia’s Experience

Professor Justin Hughes recently completed a State Department trip to Ethiopia to conduct talks on intellectual property. The U.S. embassy in Addis Ababa's official blog is publishing a series of his posts on the topic. The first was published on May 19. 

It’s been a pleasure to come to Ethiopia as part of the U.S. State Department’s public speaker series; the State Department invited me here to talk about intellectual property (IP) laws as well as international trade, the two subjects I teach at Loyola Law School at Loyola Marymount University in Los Angeles. During my trip, I’ve spoken before audiences from Addis Ababa and Hawassa universities; conducted a 1.5 day workshop for the Ethiopian Intellectual Property Office (EIPO), and had many smaller meetings and site visits, including the Ethiopian Agricultural Research Institute in Addis, the Oromia Coffee Farmers’ Cooperative Union in Oromia, and rural health centers and health posts in Amhara.