Tuesday, December 5, 2017

Finding a Bright Line on Expression in Masterpiece Cake Case

Loyola Law School, Los Angeles Professor Kimberly West-Faulcon is following the U.S. Supreme Court case Masterpiece Cakeshop v. Colorado Civil Rights Commission. The case stems from baker Jack Phillips’ refusal to make a wedding cake for a safe-sex couple, which challenged the refusal based on the Colorado Anti-Discrimination Act.

Professor West-Faulcon, Loyola’s James P. Bradley Chair in Constitutional Law, observes:
This is a case that tries to pit our constitutional right to be free from government censorship of our expression against civil rights protections for same-sex couples. I think finding a sensible place to draw the line on what constitutes artistic expression would mean people who run store-front bakeries must serve all of their products to all of the public because a bakeshop is a public accommodation. If you are more “artist” than baker, I’d think the Court would expect you to have a private studio with more exclusivity than a place where the general public goes to buy cookies.

Wednesday, November 8, 2017

Contempt at the Military Commissions: A Legal History

By: Professor David Glazier
This piece originally appeared on Lawfare

Does a military commission judge have the power to cite a senior U.S. military officer for contempt as if these tribunals were courts-martial or regular federal courts?

This question came to the fore last week when Guantanamo experienced its most bizarre detention to date. On Nov. 1, Col. Vance Spath held in contempt the military commissions’ chief defense counsel, Marine Corps Brig. Gen. John Baker in the trial of Abd al Rahim al Nashiri. (Al Nashiri is accused of planning the 2000 bombing of the USS Cole.) Although it might be widely assumed that the Guantanamo tribunals should enjoy similar core authority to that inherent in other U.S. courts—including the power to punish for contempt—the reality is that their authority is limited by their governing statute, the Military Commissions Act of 2009 (MCA).

Spath summarily convicted Baker for contempt of court for refusing to testify before the commission or revoke his unilateral excusal of three civilian counsel assigned to represent al Nashiri due to purported ethical conflicts. Spath imposed on Baker twenty-one days confinement and a $1,000 fine. Although Baker’s actions might be punishable by a judge in a regular civilian court, or even a court-martial conducted under the recently amended Uniform Code of Military Justice (UCMJ), they fall outside the scope of contempt as Congress defined it in the MCA.

Monday, November 6, 2017

2017 Tax Reform: We Hate Employees

By Professor Theodore Seto
This post originally appeared on Understanding Tax

Current tax law is moderately unfriendly to employees, more friendly to folks who can structure their businesses as sole proprietorship or partnerships. Sole proprietor expenses are deductible above-the-line, reduce adjusted gross income, and are deductible for AMT purposes. Employee expenses are only deductible below-the-line, are subject to the 2-percent floor and the overall limitation on itemized deductions, and are not deductible at all for AMT purposes.

Under the House Republican bill, things are about to get much worse.

Friday, November 3, 2017

Loyola Project for the Innocent Ushers in Rule on Prosecutorial Ethics

Loyola Project for the Innocent smooths way for passage of Rule 5-110 by the California Supreme Court. The rule, Special Responsibilities of a Prosecutor, defines their obligations to the defense.  "This will have a lasting imprint on the entire profession, and we played a leadership role in it," said Professor Laurie Levenson, LPI founder.

Read Rule 5-110 in full below.

Friday, October 27, 2017

Federal Circuit Adopts Professors' Theories on Veterans' Courts Hearing Class Actions

Update: Following the Federal Circuit's path-breaking decision permitting veterans to bring class actions in April, an en banc panel of the Veteran's Court has just set down a schedule for briefing and oral argument to consider certifying a class action in that case. 

Relying, in part, on an amicus brief filed by Professor Adam Zimmerman and others, the Federal Circuit this week agreed that veterans can bring class actions in veterans court in the case Monk v. Shulkin.

"By adopting our theory that this veteran's court could hear class actions under its statute, the Federal Circuit not only creates a meaningful path for veterans to pursue desperately needed institutional reform, but it has essentially paved the way for almost all other agencies with similarly worded authority to do the same," said Zimmerman.

The Wall Street Journal reported: "Adam Zimmerman, a class-action expert at Loyola Law School who filed an amicus brief in the case along with other academics, said the Federal Circuit ruling has the power to help more than the veterans. It also could pave the way for other agencies granted similar authority to the veterans court to hear collective actions, he said.

Relevant excerpt of opinion:

Under 38 U.S.C. § 7264(a), “[t]he proceedings of the [Veterans Court] shall be conducted in accordance with such rules of practice and procedure as the Court prescribes.” This express grant authorizes the Veterans Court to create the procedures it needs to exercise its jurisdiction.

Other tribunals have relied on statutes with similar language as 38 U.S.C. § 7264 to aggregate claims and create class action procedures, including the Equal Employment Opportunity Commission (“EEOC”). See Amicus Br. of 15 Admin. Law, Civil Procedure, and Fed. Courts Professors at 10–11 (noting that the EEOC was granted authority to “issue such rules, regulations, orders and instructions as it deems necessary and appropriate to carry out its responsibilities” pursuant to 42 U.S.C. § 2000e-16(b)). Under this authority, the EEOC adopted a class action resolution procedure. 29 C.F.R. § 1614.204; see, e.g., 57 Fed. Reg. 12,634 (Apr. 10, 1992); Wade v. Donahoe, No. CIV.A. 11-3795, 2012 WL 3844380, at *13 (E.D. Pa. Sept. 4, 2012) (“Pursuant to [its 42 U.S.C. § 2000e-16(b)] authority, the EEOC has promulgated regulations for class actions.”).

On the basis of the express statutory authority of the Veterans Court to prescribe “rules of practice and procedure,” the Veterans Court may prescribe procedures for class actions or other methods of aggregation.




Thursday, October 12, 2017

Company that Owns Muhammad Ali sues Fox over Tribute to Late Boxer

By Professor Jennifer E. Rothman

This post originally appeared on Rothman's Roadmap to the Right of Publicity.

The company that owns and manages former boxing great Muhammad Ali's right of publicity and trademarks has sued Fox Broadcasting in federal district court in Illinois. The complaint filed today claims that Fox's broadcast of a memorial to Muhammad Ali leading up to the broadcast of the 2017 Super Bowl violated Ali's right of publicity under Illinois law and the federal Lanham Act. The Lanham Act claim is that the broadcast falsely suggested that Muhammad Ali Enterprises (the plaintiff company) endorsed the short film.

The edited spot runs approximately 3 minutes in length and uses newsreel and sports footage of Ali, combined with footage of football greats, like Joe Montana and Tom Brady, to celebrate the spirit of legendary athletes and to honor the deceased Ali. Although some journalists have characterized the short as an advertisement, and one could see it as promoting the feel-good-spirit of the Super Bowl and Fox's upcoming broadcast, it is clearly styled as a tribute to Muhammad Ali who had died the year before. As such, I think there are strong arguments that it is not an advertisement and is not commercial speech. It therefore should receive full First Amendment protection.

Muhammad Ali Enterprises, now reportedly owned by Authentic Brands, was no doubt emboldened by Michael Jordan's victory against two supermarkets that used his name and jersey number in an issue of Sports Illustrated to celebrate his induction into the Basketball Hall of Fame. Jordan won more than $9 million in those cases. But those cases are quite different than this one. There was little dispute that the use of Jordan's name promoted the markets, and one of the one-page spreads included a coupon for a steak underneath the message about Jordan. It is not clear that this longer form celebration of Ali and athletics is so clearly directed at selling a product or show. (I also note, as I have written elsewhere, that greater latitude should have been given to the supermarkets to simply congratulate Jordan, though perhaps not to sell steaks with his name above them.)

Wednesday, October 11, 2017

Major Victory for Fantasy Sports against College Athletes

By Professor Jennifer E. Rothman

This post originally appeared on Rothman's Roadmap to the Right of Publicity.

Last week while a California trial court let the right of publicity run roughshod over the First Amendment in a case involving a docudrama, an Indiana district court in Daniels v. Fanduel rejected the right of publicity claims brought by former NCAA football players, Akeem Daniels, Cameron Stingily, and Nicolas Stoner against fantasy sports leagues run by FanDuel and DraftKings.

The former student-athletes complained about both websites using their names, statistics and likenesses to operate and promote the fantasy sports games. The players claimed the uses violated Indiana’s right of publicity law. The defendants asserted a number of defenses, including that the uses fell under Indiana’s statutory exemptions, were allowed by (and protected by) the First Amendment, and were barred by federal copyright law.

There was no challenge to the fact that the use of the players’ identities was for a commercial purpose as required by Indiana law. The websites are pay sites and the court noted that in 2015 the fantasy sports industry generated $3 billion in “customer entry fees.”