Loyola Law School Hosts Commemoration of Nuremberg Trials

The Center for the Study of Law & Genocide at Loyola Law School, Los Angeles will hold a symposium commemorating the 70th anniversary of the start of the Nuremberg International Military Tribunal on Friday, Nov. 20 from 9 a.m.-3 p.m. It is the only U.S. event to livestream the commemoration proceedings from Nuremberg, Germany and will include remarks from noted genocide authorities and Benjamin B. Ferencz, the last-living Nuremberg prosecutor.

PROGRAM

• Opening Remarks: Hon. Stefan Biedermann, Deputy Consul General, Consulate General of the Federal Republic of Germany
•  “Nuremberg: How the Impossible Trial Was Made Possible”: Prof. Michael Bazyler, Professor of Law and The 1939 Society Scholar in Holocaust and Human Rights Studies, Dale E. Fowler School of Law Chapman University 
• "Nuremberg and History: Discovering the Six Million": Prof. Michael Berenbaum, Professor of Jewish Studies and Director, Sigi Ziering Institute: Exploring the Ethical and Religious Implications of the Holocaust American Jewish University  
• "The Propaganda Defendants at Nuremberg": Prof. Gregory Gordon, Associate Dean (Development/External Relations) Director, PhD-MPhil Programme, The Chinese University of Hong Kong, Faculty of Law 
• "Nuremberg and Guantanamo: Shaming the Legacy of Nuremberg": Prof. David Glazier, Loyola Law School, Former U.S. Navy Warfare Officer and Renowned Law of War Expert 
• "The Nuremberg Trials and Civil Justice for Survivors": Rabbi Stan Levy, Founding National Director, Bet Tzedek Holocaust Survivors Justice Network 
• "Nuremberg: One Judge’s Perspective": Judge Rolf Treu ’74: California Superior Court, Los Angeles County 
• Moderator: Prof. Stan Goldman ’75, Director, Center for the Study of Law and Genocide, Loyola Law School

The cost of ‘quality of life’ policing: Thousands of young black men coerced to plead guilty to crimes they didn’t commit

By Professor Alexandra Natapoff

This commentary originally appeared on The Washington Post

At their inaugural debate, the Democratic presidential candidates finally agreed that black lives matter. If they mean it, they should take a stand against a common but overlooked way that our criminal system devalues black lives: convicting African American men of minor crimes that they did not commit.

These wrongful convictions are largely byproducts of “order maintenance” or “quality-of-life” policing, in which police arrest large numbers of young black men on baseless charges. Baltimore police, for example, are under court-ordered monitoring for making baseless quality-of-life arrests. As described by one former officer, police tell young men to move along, then arrest them for loitering when they don’t. Maryland courts have already explained that this police practice is illegal: people who are merely standing on the street, even those ordered to move along, are not actually “loitering,” which the city ordinance defines as “to interfere with, impede or hinder the free passage of pedestrian or vehicular traffic” after having been warned to desist.

Read the full article here.

 

Loyola Law School to Host Symposium On Corporate Rights and Political Spending

Loyola Law School, Los Angeles and Free Speech for People will host the symposium “Corporations, the Constitution, and Democracy” featuring a slate of prominent corporate, constitutional and election-law scholars and a keynote address by the Hon. Leo E. Strine, Jr., chief justice of the Delaware Supreme Court. The event will be held on Friday, Nov. 20 from 12-4:30 p.m. on Loyola’s downtown LA campus.

The panel “The Future of Corporate Constitutional Rights Litigation and Theory,” will feature Margaret M. Blair, Vanderbilt Law School; Erwin Cherminsky, UC Irvine School of Law; Sarah Haan, University of Idaho College of Law; James D. Nelson, University of Houston Law Center; Anne Tucker, Georgia State University College of Law; and Adam Winkler, UCLA School of Law. The panel “Democracy, Corporations and Money in Politics” will include Jeff Clements, Free Speech for People; Richard L. Hasen, UC Irvine School of Law; Michael S. Kang, Emory University School of Law; Jessica Levinson, Loyola Law School; and Michele Sutter, Money Out Voters In.

Chief Justice Strine, a preeminent corporate law jurist, will deliver the keynote address, “Corporate Power Ratchet: The Courts’ Role in Eroding ‘We the People’s’ Ability to Constrain Our Corporate Creations.” Closing remarks will come from John Bonifaz, Free Speech for People, and Elizabeth Pollman, Loyola Law School. The afternoon will conclude with a reception.

“The event brings together top scholars and legal activists to discuss two of the biggest controversies of our time: corporate personhood and money in politics,” said Pollman, conference organizer. “Speakers will address these topics from practical and theoretical perspectives and offer ways to rethink both campaign finance and the constitutional rights of corporations.”

8th Circuit Appears Divided in Dryer v. NFL Oral Arguments

By Professor Jennifer Rothman

This commentary originally appeared on the website, Rothman's Roadmap to the Right of Publicity.

The oral arguments from last Thursday’s hearing before the 8th Circuit in Dryer highlight a host of flashpoints in right of publicity law. The arguments focused on whether the use of historical film clips constituted commercial speech.  The plaintiffs’ attorney claimed that the use by the NFL was clearly commercial speech and therefore not entitled to First Amendment protections, citing the 7th Circuit decision in Jordan v. Jewel Food Stores (2014). In Jordan, however, the parties had conceded that the commercial speech question decided whether there was any First Amendment protection in the context of a Lanham Act claim and the appellate court expressed rightful skepticism of that conclusion.  The oral arguments here highlight the confusion over how to categorize and distinguish commercial speech from for-profit commercial uses, like films, news, and sports broadcasts, as well as marketing for the same.  The plaintiff is correct that the broadcasts in Dryer undoubtedly drive good feelings and income to the NFL through game attendance, merchandise, and its entertainment and broadcast programming, and related advertising revenue. This, however, does not make the broadcasts commercial speech, nor does it remove First Amendment protection even if it is commercial speech.

The second right of publicity flashpoint addressed was copyright preemption and whether the players’ agreement to appear in the underlying sporting events prevented subsequent right of publicity claims arising out of a derivative work using those broadcasts. The defense attorney distinguished the uses at issue from using a player’s image on a coffee mug, because in such an instance the likeness of the player would be extracted from the underlying copyrighted work and repurposed.  Under copyright law this is a difference without meaning, although the argument may otherwise seem appealing and perhaps has more traction in a conflict preemption analysis then a section 301 analysis.

The final right of publicity conundrum addressed in oral arguments was the scope of the newsworthiness defense and what counts as newsworthy under the various state laws at issue.  One judge on the panel questioned whether an old football game counted as “newsworthy.”  Such a narrow interpretation of what is newsworthy would be catastrophic for documentarians, journalists, and other creators who often delve into past events.  The arguments also touched upon the question of whether the demonstration via survey evidence of some possible confusion was enough to overcome judgment as a matter of law on the false endorsement Lanham Act claim.  The full arguments can be heard here – Oral Arguments, Dryer v. NFL, Oct. 22, 2015 (8th Cir.)

Beyonce, Pharrell, Rihanna, Jay-Z, and Kanye West Sue Over Use of their Images and Names on Merchandise

By Professor Jennifer Rothman

This commentary originally appeared on the website, Rothman's Roadmap to the Right of Publicity.

These megastars sued Eleven LLC for using their names and images in a variety of merchandise, including t-shirts, hats, and cell phone covers. Some of the images evoked Hitler and some of the items used lyrics from the artists’ songs...Look for a settlement in this one.
Looks like promising claims as to false endorsement and right of publicity.  Somewhat less convincing is the defamation claim from adult-oriented models that association with the strip club would subject them to “hatred, shame, . . .ridicule, aversion, ostracism, degradation . . . and/or could induce an evil opinion of Plaintiffs in the minds of right-thinking persons, and/or could deprive each Plaintiff of confidence and friendly intercourse in society.”  Perhaps the complaint itself defames adult entertainers.

Greene was featured in convicted felon Jordan Belfort's memoir upon which the Martin Scorsese movie was based. The movie, however, did not use the plaintiff's name or likeness, but instead created an amalgamated character derived from several real individuals, including the plaintiff. The court therefore rejected Greene's claim because under New York’s privacy statute, N.Y. Civil Rights Law § 51, such claims are limited to uses of the actual name or likeness of an individual. Merely evoking the person’s identity is not sufficient to state a claim.  This treatment of the privacy-based right under New York law differs from the interpretation of right of publicity laws in some other states, notably under California's common law.

Justice Illuminates Criminal Discovery

By Professor Laurie L. Levenson
This book review originally appeared in the Oct. 9, 2015 edition of the Daily Journal.

Who knew that someone could make California discovery law easy to follow? But Justice Brian Hoffstadt has done just that. In his recent book, “California Criminal Discovery” (5th ed., Matthew Bender, 2015), Hoffstadt has provided a comprehensive guide to California’s discovery laws. It is an amazing guide to the statutory and case law obligations of both prosecutors and defense counsel in California.

The book could not have come at a better time. Despite the fact that judges have noted the epidemic of discovery violations in the land, California prosecutors continue to fight against reforming California’s ethical rules to comport with the standards set forth by the American Bar Association in its rules of professional conduct. There is a desperate need for guidance on discovery obligations for both prosecutors and defense lawyers. Hoffstadt seeks to tackle that challenge.

Doctors Without Borders Strike a Tragedy, Likely Not a War Crime

By Professor David Glazier

As tragic as the strike on the Médecins Sans Frontières (MSF) hospital was, it is extremely unlikely to constitute a war crime -- at least under the definitions found in the Rome Statute of the ICC -- regardless of whether the conflict is characterized as an International Armed Conflict (IAC) or Non-International Armed Conflict (NIAC). It is important to note upfront that in the "real world" (and by that I mean everywhere in the world except the Guantanamo military commissions) it is recognized that the law, and more specifically the conduct which falls within the scope of recognized war crimes, differs, by conflict type and thus conflict classification is a required element of proof. The Rome Statute, for example, defines 34 war crimes recognized in IAC (Art 8, sections 2(a) and (b)), but only 19 for NIAC (Art 8, sections 2(c) and (e)).

Deliberately attacking civilians, or a protected facility such as a hospital, is a war crime in both IAC and NIAC. But conviction requires demonstrating both knowledge of the protected status and a deliberate decision to attack it nevertheless. What is more likely to be the case here is that either (1) through some sort of procedural error or negligence, in the heat of the moment of the attacks, either or both the folks on the ground calling in air support, and the aircrew, failed to note the protected status of the facility; or, (2) the folks on the ground were receiving sufficient incoming fire from the hospital grounds that they (and/or the aircrew) decided that it had been converted into a legitimate military object by this misuse and lost its protected status.

In either of these cases, the U.S. participants would lack the requisite mens rea to be convicted of a deliberate attack on protected objects or persons.