• I’m a big fan of Lawrence Lessig — especially his generally excellent work on copyright and technology policy — but many of his public statements of the last few years seem to betray an increasing naïveté. His credulous 2008 endorsement of Obama could have been written by a particularly enthusiastic high-school junior and this weepy finger wagging is downright embarrassing. Lessig is too smart not to realize that arguments might matter and that there are consistent philosophies not motivated by political considerations that might regularly lead to outcomes that he doesn’t prefer.


Churches, branding, and identity

October 24th, 2011  |  Tags:  |  Leave a comment

Via Alan Jacobs, a megachurch sends cease-and-desist letters to other churches that have the same name, with predictably tragicomic results:

When cases like this arise in the business world, it’s customary for a law office to send a notice asking the other organization to adjust their branding to differentiate it. This is commonly referred to as a cease and desist letter. On September 27, 2011, our legal counsel sent such a letter to these three Mars Hill churches requesting that they change their logo and name. In hindsight, we realize now that the way we went about raising our concerns, while acceptable in the business world, is not the way we should deal with fellow Christians.

Jacobs points out that this response reveals something pretty terrible about “the state of contemporary megachurch Christianity,” and I agree. But beyond the total impropriety of Mars Hill’s response, the thing that strikes me most is that the legal claim is surely indefensible: Mars Hill is not a particularly novel name for a church. Can you imagine any of the following scenarios leading to legal remedies?

  • “Dear Sir, We are the intellectual property counsel for First Baptist Church of Lake City. It has come to our attention that your church is also named ‘First Baptist,’ which creates confusion in the ecclesiastical marketplace and uses our famous name and trademark to attract parishioners who mistakenly believe they are receiving our services….”
  • “Dear Sir, Our firm represents Sts. Peter and Paul Catholic Church of Rockwell City. We understand that your parish enterprise has been operating using the names of St. Peter and/or St. Paul without our express authorization. This damages our brand, since worshippers have come to expect a particular experience only available from our parish enterprise, which is widely known as a halo atop the golden buckle on the corn belt, and its licensed affiliates….”
  • “Dear Sir, We serve as counsel for Trinity Lutheran Church of Webster City, the owner and/or exclusive licensee of the ‘Trinity Lutheran’ mark as applied to places of worship (cf. Flacius v. Karlstadt), schools, and buffet restaurants, among many other uses. Your organization’s use of the ‘Trinity Lutheran’ name and a logo that uses serifed type much as ours does is in violation of multiple civil laws governing trademark infringement….”

I can’t, either.

“Does not provide protection”

June 1st, 2011  |  Tags:  |  1 Comment

I’m having trouble figuring out exactly what kind of liability the toy manufacturer is limiting exposure to with this disclaimer.

No protection

Drafting and discrimination

April 27th, 2010  |  Tags: ,  |  Leave a comment

I wonder sometimes the extent to which NFL front offices are subject to federal labor laws when choosing to draft or not to draft players, specifically because of stories like this:

Just before the draft, we heard the most offensive job interview question we can imagine. Dez Bryant was asked if his mom was a prostitute.

Such a question is unbelievably gauche, but asking about the occupation of an applicant’s parents is out of bounds no matter what that occupation happens to be. (See question #14 here.) Could a player sue for employment discrimination if they were asked an improper question by team X and then fell past that team on draft day?

(Since he’s a football journalist and a labor attorney, one would assume that Mike Florio would have an opinion on this matter.)


September 29th, 2009  |  Tags: , , ,  |  Leave a comment

I have mentioned Roman Polanski exactly once on this site before today; at the time, I referred to him with an anarthrous noun phrase, as “Convicted child rapist and Academy Award-winning director Roman Polanski.” In the days since his arrest in Switzerland, I have been baffled and saddened by the myriad commentators who seek to excuse the former because of the latter; who seemingly forget that Polanski is a convicted child rapist who admitted to drugging a young girl, forcing intercourse upon her in spite of her repeated objections, and then, after an apparent change of heart, sodomizing her instead of running the risk of knocking her up.

Kate Harding in Salon provides an uncompromising and polemical rebuttal to the current Polanski whitewash festival, including this digression on the nature of justice — a concept that is ignored by the legions of petition-happy celebrities:

[Justice] works on behalf of the people, in fact — the people whose laws in every state make it clear that both child rape and fleeing prosecution are serious crimes. The point is not to keep 76-year-old Polanski off the streets or help his victim feel safe. The point is that drugging and raping a child, then leaving the country before you can be sentenced for it, is behavior our society should not — and at least in theory, does not — tolerate, no matter how famous, wealthy or well-connected you are, no matter how old you were when you finally got caught, no matter what your victim says about it now, no matter how mature she looked at 13, no matter how pushy her mother was, and no matter how many really swell movies you’ve made.

The difference between what our society tolerates “in theory” and in practice, especially when celebrities of means are the unrepentant perpetrators (ahem), is one of the saddest indictments of the narrowly-targeted injustice that passes for “justice” in this country. One wonders whether the commentators tripping over one another to excuse Polanski’s apparent belief in droit de seigneur are also concerned about the fates of criminals who can’t afford to flee the law and live in luxury in countries without extradition treaties. I suppose poor people don’t make really great movies, but it is still shocking that none of Polanski’s defenders seem able to comprehend the horrific turpitude of his crime. Have any of these people ever had children? Have they ever been children?

Immutability and truth

July 17th, 2009  |  Tags: ,  |  4 Comments

Judicial confirmation hearings are generally tedious affairs full of legislative bombast and free of substance. This is doubly the case for those of Supreme Court nominees, in which the most dimwitted senators recognize a wider-than-usual platform for public bloviation and steal the stage as often as possible. The nominees themselves, in light of the greater public attention paid to their hearings, are typically overcoached to the point of near-terminal blandness. Still worse, potential SCOTUS justices cannot comment on almost any controversial topic, since so doing might require a justice to recuse himself or herself if a similar case made its way to the high court. Given these factors, even the most attentive and informed citizen could be forgiven for tuning out such a content-free display.

However, even for bit players in a content-free C-SPAN telenovela, as is the lot of the nominee forced to endure interminable senatorial speechifying, there is a difference between declining to answer questions (whether at all or precisely) and engaging in active mendacity. I am afraid that Judge Sotomayor’s assertion that the meaning of the Constitution is “immutable” except through the amendment process falls in the latter category. Does anyone — including Sotomayor — actually believe that she holds a philosophical position regarded as hopelessly retrograde by vast swaths of legal academia and by the president who appointed her?

Unless the judge is advocating a concept of immutability that is in line with the Tridentine concept of authoritative tradition1 — namely, that the truths have all been there from the beginning, but some haven’t been expressed or clarified yet, and some to-be-expressed truths might just abrogate earlier truths — this strikes me as an absurd position to take given her record and prior public statements, and especially so when expressed in such stark terms. Does Judge Sotomayor believe that Miranda v. Arizona was wrongly decided, since the fifth and sixth amendments had never before been construed to require notifying arrestees of their rights? Or does she believe that everyone simply got it wrong before 1966, and that no one was clever enough to notice the immutable meaning of the amendments until a special revelation to Earl Warren cleared everything up?

I think Georgetown law professor Mike Seidman (quoted earlier in the linked piece), who essentially said that Sotomayor was either perjuring herself or irredeemably stupid, might go too far in his assessment. But I wonder why so many commentators have worked so hard to justify or ignore such obvious temerity. (Imagine the reaction if Justice Thomas had given a lengthy speech in favor of judicial empathy, the penumbras around the Constitution, and the emerging standards implied by foreign court rulings in his confirmation hearings!) This display is only stranger given the sympathetic audience she had in a Senate chamber overwhelmingly inclined to respect the president’s prerogative.

1 Perhaps I should say “in line with a mildly polemical confessional Lutheran reading of the Tridentine concept of authoritative tradition,” but I should also note that the Tridentine concept of authoritative tradition proved untenable in the long run. See Heiko Oberman’s article “Quo Vadis, Petre? Tradition from Irenaeus to Humani Generis,” which was published both in the Scottish Journal of Theology, 16/3 (1963) and in Dawn of the Reformation (amazon link).