Monday, February 28, 2011

Prof. Molly S. Van Houweling presents at Loyola's IP Theory Colloquium

Professor Molly S. Van Houweling of the UC Berkeley School of Law presented "Touching and Concerning Intellectual Property" at Loyola's IP Theory Colloquium.

The Preclusive Effect of a Federal Court Denial of Class Certification

By Professor Georgene Vairo

My colleagues, Michael Waterstone and David Horton have already weighed in on two of the big three class action cases before the Supreme Court this term. I will talk about the third.

Provocatively but aptly titled "Will arbitration kill the consumer class action?", David's article noted that in AT&T v. Concepcion, the Supreme Court will decide whether the Federal Arbitration Act (FAA) preempts state courts from striking down class arbitration waivers under the unconscionability doctrine. As he put it, "contract procedure" enthusiasts are on the edge of their seats anxiously awaiting the Court's ruling. The Court will have to balance its general trend in favor of favoring arbitration against it's the ideals of federalism which should enable state's to provide their citizens with greater protections than those afforded by federal law.

Michael talked about Wal-Mart v. Dukes, which is likely to have huge implications for both employment discrimination and class action law. Plaintiffs are a class of female Wal-Mart employees alleging sex discrimination. The Ninth Circuit whittled down a class of about 1.5 million employees to 500,000. Yet, the class still may be the largest-ever gender bias class action case. The Supreme Court's order granting certiorari looks at two important questions: 1) whether claims for monetary relief can be certified under Federal Rule of Civil Procedure 23(b)(2)--which by its terms is limited to injunctive or corresponding declaratory relief--and, if so, under, what circumstances?

The answer to this question will resolve a circuit split on the issue of to what extent monetary damage claims are allowable in a 23(b)(2) class action; and 2) whether, when determining whether a Rule 23(b)(2) class may be certified when the plaintiffs' evidence--including statistical proof of disparities between men and women, anecdotal evidence, and expert proof on social framework analysis showing susceptibility to gender bias in the management structure--arguably establishes a common issue, as required under Rule 23(a), of a corporate-wide policy of discrimination? Attorneys who practice discrimination law of any type as well as all class action lawyers await the Court's answers to these questions because they will go a long way in determining the contours, in terms of size and remedies, that will be available to plaintiff classes in the future.

Thursday, February 24, 2011

Prof. Anthony V. Alfieri presents on Big Law and diversity

Anthony V. Alfieri, professor of law and director of the Center for Ethics & Public Service, at the University of Miami School of Law, presented "Big Law, Risk Governance, and Diversity" during Loyola's Faculty Workshop Series.

Loyola to host paparazzi law forum

By Jacqueline Lechtholz-Zey, JD '11 and Gregory Strausberg, JD '09, LLM '11

On Feb. 25, the Loyola of Los Angeles Entertainment Law Review will present a day-long, three panel event entitled "Paparazzi Law in a Flash: Examining California's Past, Present and Future." This symposium aims to educate its law student, media professional, and attorney audiences on the legal discourse surrounding the modern day paparazzi in the context of the recent enactment of AB 2479 ("the anti-stalking law"). This newly enacted law makes it a misdemeanor to tailgate or drive recklessly to capture a photo or tape recording of an individual for commercial purposes. It represents California's most recent attempt at addressing the storied problem of striking the proper Constitutional balance between the First Amendment's protections for newsgatherers and an individual's right to privacy. With the passage of AB 2479, it is clear that states are again starting (as they did with the rise of "yellow journalism" over a hundred years ago) to recognize a growing problem in the way this segment of the media interacts with its subjects. However, the lack of enforcement of past laws aimed at curbing abusive practices--as indicated by the relative absence of lawsuits under California Civil Code § 1708.8--demonstrates the immense power of the First Amendment and the difficulty in crafting laws that do strike this proper balance. More information about the event is available on its website.

The legal dialogue regarding the paparazzi--including its dynamic interplay of state and federal law--is a field that has intrigued scholars (legal and non-legal alike) since the beginnings of America's media and entertainment industry, as exemplified by the axiomatic writings of Louis Brandeis and Samuel Warren in The Right To Privacy at 4 Harvard Law Review 193 (1890). While no point in American history clearly establishes the origin of an aggressive media force in need of legal regulation, many attribute the identification of this problem as coinciding with the rise of "yellow journalism" in the late nineteenth century. Such "journalism" is no better typified than by the infamous publication of an article in the New York Journal in 1898 that exclaimed, "DESTRUCTION OF THE WAR SHIP MAINE WAS THE WORK OF AN ENEMY"--a title that does not seem to sound so far flung from the typical grocery store tabloid reads of 2011. Such dramatic, seemingly simple proclamations had the power of catching the attention of the average nineteenth century reader and were therefore crucial to the fortunes of the rapidly expanding media companies of the time. However, behind such "simple" statements and their accompanying images (which often depicted famous individuals or sensationalized events) laid an extremely complex legal dilemma, which forced legal scholars such as Louis Brandeis and Samuel Warren, along with the American courts, to properly consider the point at which the First Amendment shield ended and where the right to privacy sword began.

Paparazzi Law in a Flash: Examining California's Past, Present and Future will include discussions of the past, present and future legal developments on this topic in a way that is understandable to legal and non-legal professionals. Loyola Law School has assembled leading practitioners, scholars, as well as recently admitted entertainment lawyers who have all played a central role in the on-going debate of what is permissible, constitutionally protected activity versus activity giving rise to criminal and civil liability. Loyola Professor Karl Manheim will speak about parallel efforts and international privacy law. And Professor Jay Dougherty will serve as a moderator. Loyola of Los Angeles Entertainment Law Review is also proud to include the discussions and articles of its own students Patrick Alach JD '09 and Gary Wax JD '09, which should be of use to those who seek to enforce or defend against the instantiation of this new statutory scheme.

This event is open to all who wish to attend. For media relations, please contact Brian Costello, deputy director of commujnications. We thank you for your support of this event and other future Loyola Law School entertainment and media law productions.

Monday, February 21, 2011

Who 'snitching' really betrays

By Professor Alexandra Natapoff

In 1998, I was a community lawyer in inner-city Baltimore and taught an after-school law class for neighborhood kids. One evening, a boy of about 12 said something that would change my thinking forever.

"I got a question," he said, leaning forward intently. "Police let dealers stay on the corner 'cuz they snitching. Is that legal? I mean, can the police do that?" When I explained that they could, he and his friends slumped down in disgust. "That ain't right!" and "The police ain't doing their jobs!" they exclaimed. "So all you gotta do is snitch," another concluded, "and you can keep on dealing."

Fifty years ago, "snitching" had a very different meaning. Last fall, it was claimed that Ernest Withers -- nicknamed the "original civil rights photographer" -- was working as a paid FBI informant even as he snapped iconic pictures of the Rev. Martin Luther King Jr., the Little Rock Nine and striking sanitation workers.

Read the complete posting at

Thursday, February 17, 2011

Informational privacy in 2011

By Associate Professor Aaron Caplan

Two cases on this year's U.S. Supreme Court docket examine informational privacy under the Constitution. Although definitions vary, informational privacy is ordinarily used to mean the ability of individuals to control the gathering, use, and distribution of information about them by others. The first case, NASA v. Nelson, has already been decided. It extends a long-standing stalemate on whether a person has a due process right to keep certain information private from the government. The second case, Sorrell v. IMS Health Inc., will be argued later this year. It asks whether data brokers and drug companies have a constitutional right to buy and sell information about doctors' drug prescription records for commercial purposes.

The prevailing wisdom has been that the Constitution provides little, if any, direct protection for informational privacy. As a result, privacy gets legal protection in the United States primarily through statutes. Among the most common statutes are those protecting information about medical care and prescription drug use. NASA leaves this general system basically intact, not expanding any direct constitutional source for privacy but not restricting the government's ability to enact privacy laws. Sorrell, however, has the potential to call many of our privacy-protecting statutes into question. [DISCLOSURE: I have provided some advice to the Vermont attorney general's office in Sorrell.]


Both of the 2011 cases can trace their roots to Whalen v. Roe, 429 U. S. 589 (1977), which marks the last time the Supreme Court gave extended consideration to what it called the "interest in avoiding disclosure of personal matters." The plaintiffs in Whalen were patients challenging a New York statute that created a computerized database of all persons who had filled prescriptions for certain drugs. A difficulty for the patients was that the Constitution does not in so many words set forth an individual right to keep information away from other private parties or from the government. (It does, however, provide explicit protection against certain types of information-gathering by the government. Most important are the Fourth Amendment limits on government searches of people's "persons, houses, papers and effects," and the Fifth Amendment right against testifying as a witness against oneself in criminal cases.)

Professor Julie E. Cohen presents in Loyola's Faculty Workshop Series

Professor Julie E. Cohen of the Georgetown University Law Center, will be presenting her paper, "Copyright as Post-Industrial Property," as part of Loyola's Faculty Workshop Series.

Tuesday, February 15, 2011

Ninth Circuit Oral Arguments Today in Keller v. Electronic Arts: A Challenge to EA's Popular College Football Video Game

By Professor Jennifer Rothman

Today the Ninth Circuit will consider a First Amendment defense to Electronic Arts' (EA) use of former and current college players' identities in a popular video game. The case once again raises the issue of a conflict between the First Amendment and the right of publicity - a state law that protects the name, likeness and other indicia of identity of a person from being used without consent. Because this right limits what others can say, or put in a comic book, or a commercial or even a news broadcast, it raises a host of First Amendment issues. In particular, the district court held that EA had no First Amendment defense because the use of the players' identities was not transformative. The district court adopted a very narrow reading of transformativeness - one that appears to limit a First Amendment defense to circumstances in which a player's appearance and information is significantly altered, such as turning a player into a "half-human, half-worm," as one comic book did with the identities of two well-known musicians.

It is no surprise that such a narrow reading of transformativeness in the right of publicity context has caused uproar among major newspapers, television networks and movie studios. If courts do not consider the broader context of the use in a transformativeness analysis, then realistic portrayals and references to athletes, celebrities and anyone else may not receive First Amendment protection.

As a First Amendment matter, the transformativeness test seems ill-equipped to handle disputes between free speech and the right of publicity; the narrow gloss that the district court put on transformativeness sets a dangerous precedent that the Ninth Circuit will hopefully strike down. But whatever test the circuit ultimately adopts, it's not clear that EA has a great First Amendment defense. In contrast to the fantasy sports leagues, which are tied to the performance of actual players during a particular season, the EA video games do not need to be linked to particular players' identities. They may be more successful commercially if they are, but the functionality of the games does not depend on their realism.

This case on remand, however, may not ultimately turn on First Amendment protections. Although many of the briefs in the case focus on alternative First Amendment tests that could be used - other than transformativeness - to evaluate free speech limits on publicity rights, there are other significant conflicts in the case that have not yet been litigated. Related cases reveal that the college athletes signed their publicity rights over to the NCAA. Moreover, the NCAA owns the copyrights in the televised games. The NCAA therefore arguably had permission to license the use of the images and names of the college athletes. The legitimacy of the implicit and explicit assignments of publicity rights to the NCAA by college athletes will likely be the next chapter in this on-going and hotly contested dispute.

Monday, February 14, 2011

Loyola hosts joint committee meeting on biomedical ethics

On Thursday, Feb. 10, Loyola Law School hosted a meeting of the Joint Committee on Biomedical Ethics of the Los Angeles County Medical Association and Los Angeles County Bar Association (the "Joint Committee"). The Joint Committee has published guidelines for physicians on Forgoing Life-Sustaining Treatment for Adult Patients and on Decisions About Genetic Testing. Currently, the Joint Committee is considering the legal and ethical issues raised by pain management. Professor Brietta Clark, who writes the Health Care Justice Blog, has been a participant on the committee since 2006.

Professor Jeanne Fromer presents at Loyola's IP Theory Colloquium

Jeanne C. Fromer, associate professor of law, Fordham University School of Law, presented her paper, "Expressive Incentives in Intellectual Property," during Loyola Law School's IP Theory Colloquium.

Friday, February 11, 2011

In 2011, those serious about reducing the deficit will look to tax expenditures

By Professor Katherine Pratt

This is the year in which the president and the Congress should focus on reducing inefficient and out-of-control spending through the tax code, to reduce federal budget deficits without gutting worthwhile discretionary spending programs.

President Barack Obama deserves credit for speaking frankly in his recent State of the Union address about the critical need to cut "spending" in all parts of the federal budget, not just in the non-defense discretionary spending that makes up a relatively small part of the federal budget. Obama also deserves credit for suggesting that we eliminate tax "loopholes" - also known as "tax expenditures" (targeted tax subsidies that benefit a narrow group of taxpayers, reduce tax revenue and drive up tax rates for other taxpayers). However, the president missed an opportunity to call for reform of many of the loopholes in the individual income tax, to make the tax system more efficient and fair, and to contain the rapid growth of tax expenditures, currently estimated to total over $1 trillion a year.

Tax expenditures frequently are the economic equivalent of a federal spending program. Generally, in an income tax system, legitimate business expenses (e.g., the cost of renting an office) are deductible, but personal living expenses (e.g. the cost of renting an apartment) are not deductible. Our tax code provides generally that personal expenses are not deductible, but allows individual taxpayers to take certain types of itemized deductions (e.g., the home mortgage interest deduction) if the taxpayer's total itemized deductions exceed the "standard deduction" ($11,600 for married couples and $5,800 for individuals in 2011). The itemized deductions allowed by the tax code thus generally are the functional equivalent of a loophole-free income tax code plus a federal spending program. For example, the home mortgage interest deduction is a federal housing subsidy that disproportionately benefits upper-income homeowners. Our tax code also provides tax subsidies in the form of "exclusions," meaning that the excluded item is not treated as income and is not taxed. An example is the income tax exclusion for employer-sponsored health insurance ("ESI"), which drives up the cost of healthcare and disproportionately benefits taxpayers whose employers provide "Cadillac" health insurance.

Loyola hosts meeting of Society for Evolutionary Analysis in Law

Loyola Law School hosts the annual meeting of The Society for Evolutionary Analysis in Law (SEAL) on Friday, Feb. 11 and Saturday, Feb. 12. SEAL is a scholarly association dedicated to fostering interdisciplinary exploration of issues at the intersection of law, biology and evolutionary theory, improving the models of human behavior relevant to law and promoting the integration of life science and social science perspectives on law-relevant topics through scholarship, teaching, and empirical research. This annual meeting will be SEAL XII, and will include more than 15 presentations by scholars from various disciplines.

The keynote address at this year's SEAL annual meeting will be made by David Sloan Wilson, SUNY Distinguished Professor, Departments of Biology and Anthropology, Binghamton University. Professor Wilson is an evolutionist who studies all aspects of humanity in addition to the biological world. His books include: Evolution for Everyone: How Darwin's Theory Can Change the Way We Think About Our Lives; Darwin's Cathedral: Evolution, Religion and the Nature of Society; Unto Others: The Evolution and Psychology of Unselfish Behavior; and The Neighborhood Project: Using Evolution to Improve my City, One Block at a Time, which will be published by Little, Brown in July 2011.

Thursday, February 10, 2011

Professor Carol M. Rose to present at Faculty Workshop Series event

Today's Faculty Workshop Series speaker is Carol M. Rose, Gordon Bradford Tweedy Professor Emeritus of Law and Organization and Professorial Lecturer in Law, Yale Law School, Lohse Chair in Water and Natural Resources, University of Arizona James E. Rogers College of Law. She will be presenting "Racial Covenants and Housing Segregation, Yesterday and Today.

Monday, February 7, 2011

Surfing jurors: Judges' instructions attempt to curb panelists' technological distractions

By Professor Peter Tiersma

During the past decade or so I have been heavily involved in California's effort to draft more comprehensible jury instructions. We've made a lot of progress. Previously, the state's judges solemnly informed jurors that, when evaluating the testimony of a witness, "failure of recollection is common" and "innocent misrecollection is not uncommon." Today, judges simply tell them that "people often forget things or make mistakes in what they remember." In the past, civil jurors were instructed to decide an issue in favor of the party whose evidence "preponderates." The new instruction requires that the evidence be "more likely to be true than not true."

Of course, the law contains many complex concepts that may not be easy to explain in ordinary language. The committees on which I serve (both civil and criminal) sometimes have lengthy debates on how to formulate such instructions. Yet perhaps the thorniest issue that we currently face is not an arcane legal doctrine, but what ought to be a relatively straightforward concept relating to juror behavior. Specifically, it is the principle that jurors are to base their decisions only on the evidence admitted during trial and not do research on their own. In the electronic age, this rule is becoming increasingly difficult to enforce.

Part of the problem is that a trial is an extremely artificial environment. The legal system demands that jurors strictly follow the law that the judge reads to them, setting aside anything they themselves know about the law as well as their own sense of justice and morality. And they must ignore anything they might know about the case or the issues raised by it. If you're an engineer, and the case involves an engineering issue, you are expected to have temporary amnesia and decide the issue purely on the testimony of the engineering experts. If you're not an engineer, you commit misconduct if you walk across the street to the library and consult an engineering textbook. It's hard to believe you're reaching a just verdict when you're told to ignore what you believe to be relevant information.

Thursday, February 3, 2011

Loyola's Faculty Workshop Series hosts Prof. Ahmed White

Today, as part of Loyola's Faculty Workshop Series, Associate Professor Ahmed White of the University of Colorado Law School will be presenting his paper, The 'Little Steel' Strike of 1937: Class Violence, Law and the Limits of New Deal Liberalism.

Wednesday, February 2, 2011

Loyola earns top 50 spot in law school ranking

Loyola Law School, Los Angeles is ranked No. 44 out of 166 law schools on the "Omnibus Law School Rankings," a listing of law schools ranked on an amalgam of factors: the U.S. News & World Report peer evalutation score, Conglomerate's Crowdsourced ranking, all-time SSRN downloads and the Princeton Review. The ranking was created by Paul Caron, Charles Hartsock Professor of Law at the University of Cincinnati College of Law and Straus Distinguished Visiting Professor at Pepperdine University School of Law. The complete rankings are available at TaxProf Blog.