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Who Watches the Watchers?
Who Watches the Watchers?
by Jay Marshall Wolman
On May 25, 2020, George Floyd was killed by then-Minneapolis police officer Derek Chauvin during an arrest of Floyd for allegedly using a counterfeit $20 bill to purchase a pack of cigarettes.
A 17-year old filmed the arrest and murder, which was then shared and resulted in protests against system racism and police brutality in all 50 states. But, according to the
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Building a Slippery Slope to Code
Building a Slippery Slope to Code
by Jay Marshall Wolman
I’ve been following the efforts of Carl Malamud and Public.Resource.Org to free the law. In short, and inadequately summarized, sometimes lawmakers incorporate by reference or otherwise make part of the law works that are subject to copyright. Thus, for example, a state may require electricians to comply with the NFPA National Electrical Code. And, for the low low price…
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Hungry Like the Wolf
Hungry Like the Wolf
by Jay Marshall Wolman
In the wake of Super Bowl XLIV, Katy Pery’s backup dancer “Left Shark”, disputes among intellectual property lawyers arose as to what kind, if any, protection was available to the owners/designers of the costume. Recently, our friend, the Boozy Barrister, over at Lawyers and Liquor, became embroiled with the world of furries, which got me thinking again about the…
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Now Her Children Gather Round Her
Now Her Children Gather Round Her
by Jay Marshall Wolman
Georgetown University has decided to violate Title VI of the Civil Rights Act of 1964, 42 U.S.C. 2000d et seq. In a grand gesture that has alternately received praise or been derided as empty, the descendants of some 272 slaves sold by the Jesuits in 1838 to keep the ship afloat will now receive an admission preference.
Missing from the discussion is a conversation about…
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Pirate Appreticeships
by Jay Marshall Wolman
How quaint the ways of Paradox! At common sense she gaily mocks! Though counting in the usual way, Years twenty-one I’ve been alive. Yet, reckoning by my natal day, Yet, reckoning by my natal day, I am a little boy of five!
-The Pirates of Penzance, “When You had Left Our Pirate Fold”
In Gilbert & Sullivan’s The Pirates of Penzance, Frederic was apprenticed to a pirate (his…
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Shouldn't I get CLE for watching?
Shouldn’t I get CLE for watching?
by Jay Marshall Wolman
As a lawyer admitted in multiple jurisdictions, I find myself having to ensure I keep up with Continuing Legal Education (CLE) requirements. With my CIPP/US certification, I also have continuing education requirements. Doctors have CME requirements, and other certifications and professions have their own continuing education requirements. And some don’t.
For example, I’m…
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Two Issues with the FBI & Apple
Two Issues with the FBI & Apple
by Jay Marshall Wolman, CIPP/US
By now, practically everyone who cares has heard that Magistrate Pym has ordered Apple to help the FBI crack open an iPhone related to the San Bernadino shooting. The order is pursuant to the All Writs Act, codified at 28 U.S.C. sec. 1651. In short, it is a catch-all that lets courts issue whatever orders they feel like. In response, Apple CEO Tim Cook sent a le…
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Justice Scalia Pardoned
by Jay Marshall Wolman
From time to time, I read the blog “A Public Defender” by the pseudonymous Gideon. Today, in the wake of Justice Scalia’s death, he decided to post a dyslogy highlighting the concurrence in Herrera v. Collins. Gideon summarizes it as follows:
In other words, in Scalia’s opinion, our Constitution would let stand the execution of an innocent man who has received all the due…
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That's It! You're Fired! And no, this isn't retaliation. Is it?
That’s It! You’re Fired! And no, this isn’t retaliation. Is it?
by Jay Marshall Wolman
The law and business are never as neat and clean as you might hope. One of the toughest problems is when two things are happening around the same time and they start to implicate each other.
In law, we have the maxim “post hoc ergo propter hoc” (after this, therefore because of this) as a known logical fallacy; correlation does not imply causation. The Fifth Circuit…
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Super Bowling for Dollars
Super Bowling for Dollars
by Jay Marshall Wolman
Yesterday, on Twitter (yes, I’m on Twitter @wolmanj), I shared an article by Mike Masnick from 2012 regarding the myth of the Big Game/Super Bowl nomenclature. It seems the issue is still a popular one on Techdirt.
Here’s the thing–the 9th Circuit laid out a nice test for nominative fair use:
First, the product or service in question must be one not readily identifiable…
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Why Are You Giving Fired Employees 21 Days to Consider Severance?
Why Are You Giving Fired Employees 21 Days to Consider Severance?
by Jay Marshall Wolman
Plenty of employers let go of an employee and give them some prefabricated separation/severance agreement, hoping to pay the now disgruntled former employee to go gentle into that goodnight. They go online and download a model or ask their payroll company or just use what they used last time, without considering what’s in it.
From time to time, it is good to review and…
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Sen. Cruz is an Unnaturally Born Citizen
Sen. Cruz is an Unnaturally Born Citizen
by Jay Marshall Wolman
Despair thy charm, And let the angel whom thou still hast served Tell thee, Macduff was from his mother’s womb Untimely ripped. -Macbeth, Act V, Scene 8 There’s been a lot of talk lately over whether Senator Cruz is eligible to the office of President. The Constitution requires that the President be a “natural born” citizen. Article II, Sec. 1, Cl. 5. Folks have made a
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The Establishment Claus
by Jay Marshall Wolman
Five years ago, Josh Blackman asked whether the NORAD tracking of St. Nick violated the Establishment Clause. After all, he is sort of a religious icon. I would suggest it doesn’t.
This year, the Consumerist delved a bit more into the history. It seems that a kid was concerned about that right jolly old elf, and he asked CONAD (predecessor to NORAD) about Santa. This…
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Free Speech and Discrimination Redux
Free Speech and Discrimination Redux
by Jay Marshall Wolman
Last week, I wrote about a potential implication from In re: Tam, based upon the hypothetical from a dissenting judge about a business calling itself “Spics Not Welcome”. There is a significant tension in the law between freedom of speech, which includes the right to offend, and anti-discrimination laws.
The fine folks at the New York City Commission on Human Rights have…
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Lawyer Mind Tricks
by Jay Marshall Wolman, CIPP/US
Like many of you, I saw Star Wars Episode VII: The Force Awakens. I’m a lawyer and had law-oriented thoughts. This post contains spoilers, so scroll past this image:
OK, that should be far enough.
Cyber Security. Star Wars exists in a galaxy where they have some form of holographic Skype/Facetime/etc. The Jedi Council used in the prequels, and Lord Vader…
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Spics Not Welcome
by Jay Marshall Wolman
By now, you have probably heard that Simon Tam won his case before the Federal Circuit regarding his attempt to register a trademark for his band “The Slants”. (Disclosure: Randazza Legal Group represented the First Amendment Lawyers’ Association as amicus curiaein that case and was recently co-counsel with Mr. Tam’s lawyer, Ron Coleman, on another matter.) In short, the…
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Revisiting Prostitution
by Jay Marshall Wolman
My recent post on the Ninth Amendment got me thinking about Griswold v. Connecticut, and its progeny, including Lawrence v. Texas. Although the latter explicitly stated it wasn’t ruling on prostitution, it didn’t say it wasn’t protected.
Assuming a logical thread from Griswold, the case law is that, basically, whatever two consenting adults choose to do in private is…
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