Blawgletter®

Quote of the Day: Blawgletter

The wise thing for me to say . . . is that I don't have evidence to contradict it.

David Ingram, "Q&A: Plaintiffs' Lawyer Barry Barnett on the Comcast class action", Thomson Reuters News & Insight, May 13, 2013 (referring to "the academic study spotlighted in The New York Times that found that this Supreme Court is the most pro-business in modern history").

Bonus:    Lee Epstein, William M. Landes, and Richard A. Posner, "How Business Fares in the Supreme Court", 97 Minn. L. Rev. ___ (2013).

Second Bonus:    "It's not all skittles and beer."

Quote of the Day: Richard Clifton

Abraham Lincoln told a story about a lawyer who tried to establish that a calf had five legs by calling its tail a leg. But the calf had only four legs, Lincoln observed, because calling a tail a leg does not make it so. Before us is a case about a lawyer who tried to estalish that a company owned a copyright by drafting a contract calling the company the copyright owner, even though the company lacked the rights associated with copyright ownership. Heeding Lincoln's wisdom, and the requirements of the Copyright Act, we conclude that merely calling someone a copyright owner does not make it so.

Righthaven LLC v. Hoehn, No. 11-16751, slip op. at 34 (9th Cir. May 9, 2013) (Clifton, J.).

Quote of the Day: Matt Bai

[I]f people went around suing everyone who accepted a loan for less money than [he] actually needed, the courts wouldn't have time for anything else.

Matt Bai, "Thrown for a Curve", The New York Times, Apr. 21, 2013 (casting asparagus on Rhode Island's lawsuit against baseball great Curt Schilling and others for borrowing only about $54 million from the Ocean State when making a success of their start-up video game business required more than $75 million).

Quote of the Day: Randolph F. Treece

 In a review of Business and Commercial Litigation in Federal Courts (3d ed. 2012), U.S. Magistrate Judge Randolph F. Treece writes about a chapter that Blawgletter co-authored:

Two chapters I hope readers would not overlook are "Techniques for Expediting and Streamlining Litigation" and "Litigation Technology". The former chapter is replete with commonsensical practical approaches to litigation. Reflecting upon the complex litigation that has come before me, I have observed litigators twist themselves into knots with superfluous litigation machinations and strategies, and extravagant, unnecessary and, of course, expensive litigation approaches. These litigators and litigants forget or ignore the cardinal aspiration of litigation within the federal system: litigants should ―secure the just, speedy, and inexpensive determination of every action and proceeding. With well-considered, clear, concise, and cogent advice, these authors drive this very point home.59 Constrained by space and time, I cannot mine for you all of the abundant and invaluable nuggets of experience set forth in this chapter, but here is one to consider. Something that I constantly urge battling litigators when hearing obstreperous disagreements over sweeping discovery demands is succinctly and aphoristically stated by these two authors: when ―reduc[ing] expense without sacrificing . . . success, less discovery is better than more because excess discovery is often counterproductive, primarily because most complex cases generally involve only several hundred documents rather than thousands or millions. But, when it comes to disclosing documents, caution urges more production than parsimoniousness and recalcitrance.61 On another note, it is grueling for federal judges to convince parties to eschew deposing the world of witnesses on every detail or minutiae. Our authors plainly tell us that ―[y]ou don’t need to look under every stone. You just need to know where the boulders are. Or, that there is ―no such thing as a bad witness—only one who has been ill-prepared. What advice could be more simply stated, yet be incredibly indispensable, than this? This chapter should be a required text for any law school’s practical skills courses, because, right now, our law graduates, as many law firms exclaim, are devoid of such litigation insights and thus unprepared for the world of litigation.

 Randolph F. Treece, "Book Review: Business and Commercial Litigation in Federal Courts, Third Edition", 76 Alb. L. Rev. 253, 259-60 (2013) (without footnotes).

Quote of the Day: Stephen S. Trott

Charisma . . . is not copyrightable.

SOFA Entertainment, Inc. v. Dodger Productions, Inc., No. 10-56535, slip op. 10 (9th Cir. Mar. 11, 2013) (Trott, J.) (holding that fair use doctrine barred copyright claim for showing of seven-second clip from Ed Sullivan's really big show in musical play about Four Seasons, which launched Frankie Valli's singing and dancing career).

Bonus: The court upheld an award of attorneys' fees for SOFA, the producer of Jersey Boys, because Dodger had tried pretty much the same thing with clips involving Elvis Presley.

Quote of the Day: Jack Weinstein

Within a large area, we should depend upon the jury to bring to bear what happens and is happening in our culture because judges, more than anybody else, are cut off. We're generally old. Our children are grown up so we don't see what's going on in their world. Our friends are rich and successful. We don't have to worry about income. We're out of touch with what's going on. What is appropriate in the workplace? Can you, as an employee, put your arm around a woman and say how are your kids, how are you feeling? Squeeze her arm, squeeze a man's arm. Can you touch a child? Can you make an off-color joke and refer to something on TV? I don't know what's accepted anymore. You need a jury for that kind of stuff.

Jeffrey Cole & Robert Gettleman, "Judge Jack Weinstein on Life and Law", Litigation 18 ( Winter 2013).

Quote of the Day: Rick Perry

While "[l]aws [are] the only redoubt of secularism", "[t]he second amendment to the Constitution is a basic right of free people". Statement of Gov. Perry on President Obama's Executive Actions, Jan. 17, 2013.

Which implies that non-secularists have many redoubts, including laws.

Quote of the Day: Jon O. Newman

Perhaps there is a police officer somewhere who would interpret an automobile passenger’s giving him the finger as a signal of distress, creating a suspicion that something occurring in the automobile warranted investigation. And perhaps that interpretation is what prompted Insogna to act, as he claims. But the nearly universal recognition that this gesture is an insult deprives such an interpretation of reasonableness. This ancient gesture of insult is not the basis for a reasonable suspicion of a traffic violation or impending criminal activity. Surely no passenger planning some wrongful conduct toward another occupant of an automobile would call attention to himself by giving the finger to a police officer. And if there might be an automobile passenger somewhere who will give the finger to a police officer as an ill-advised signal for help, it is far more consistent with all citizens’ protection against improper police apprehension to leave that highly unlikely signal without a response than to lend judicial approval to the stopping of every vehicle from which a passenger makes that gesture.

Swartz v. Insogna, No. 11-2846-cv, slip op. 8-9 (2d Cir. Jan. 3, 2012) (Newman, J.) (reversing summary judgment for officer who confronted passenger who gave the finger to officer as he pointed radar gun at car moving at lawful speed).

 

Quote of the Day: Bruce Barcott

Ferdinand Magellan (1480-1521). Bold + stupid = ?

If there's a lesson to be learned from Magellan's life, it's that bold doesn't pair well with stupid.

Bruce Barcott, "They Get Around: A history of voyages around the world, starting in the 16th century", The New York Times Book Review, Dec. 30, 2012 (noting that "[w]hile stopping in the Phillipines, Magellan responded to a chieftain's insult with a rash show of force" and that he "died in the ensuing battle, run through with bamboo spears").

Bonus:    "Drake realized he could travel light and pick up provisions along the way. And by pick up I mean steal."

Quote of the Day: Miguel Cervantes

One time, to get home for Christmas, I caught a bus in Connecticut, boarded another one in a scary part of New York, rode across the nation's midsection before cutting south, and ended up in Henderson, Texas.  My dad picked me up there and carried me home. He did things like that all the time.

I passed the time on the Greyhound by reading a long paperback.  You know it, I bet. The writer, a Spaniard, Miguel de Cervantes, told the tale of a knight-errant, Don Quixote, and his faithful companion, Sancho Panza, in the early 1600s.

One of the most memorable (and funniest!) parts of the book springs to mind:

OF THE GOOD FORTUNE WHICH THE VALIANT DON QUIXOTE HAD IN THE
TERRIBLE AND UNDREAMT-OF ADVENTURE OF THE WINDMILLS, WITH OTHER
OCCURRENCES WORTHY TO BE FITLY RECORDED

At this point they came in sight of thirty forty windmills that
there are on plain, and as soon as Don Quixote saw them he said to his
squire, "Fortune is arranging matters for us better than we could have
shaped our desires ourselves, for look there, friend Sancho Panza,
where thirty or more . . . giants present themselves . . . ."

"What giants?" said Sancho Panza.

"Those thou seest there," answered his master, "with the long
arms, and some have them nearly two leagues long."

"Look, your worship," said Sancho; "what we see there are not giants
but windmills, and what seem to be their arms are the sails that
turned by the wind make the millstone go."

*  *  *  *

Like Cervantes, my dad, Don Barnett, made me smile.  A lot. This holiday season, I hope you, too, fondly remember people you loved and who loved you but have passed away. Also friends and neighbors and people you don't know, very well or at all, and those they have lost.

They may be giants.