The Blutarsky/Feingold Philosophy.

John Belushi as Blutarski in "Animal House":



Russ Feingold at the Wisconsin Capitol last Sunday:



And a few weeks ago, here at the Capitol:



"It's not over until we say it's over." That's the political theory. Meanwhile....

Unions representing public workers in Wisconsin filed a lawsuit in federal court on Wednesday to block the state's new curbs on collective bargaining... [claiming] the controversial measure is unconstitutional because it creates two classes of public workers in the state -- those covered by the new rules and those exempt from them.

What? Treating police differently from teachers is supposed to be an invidious discrimination under the Equal Protection Clause?! There's no suspect or quasi-suspect classification, so the courts will give this minimal scrutiny. How is this anything but a frivolous lawsuit?

Blutarsky/Feingold marches on.

NOTE: The "Animal House" epilogue tells us what ultimately happens to each character, and the biggest joke is that Blutarsky becomes a U.S. Senator! (Thanks to Bruce Hayden, in the comments, for reminding me of that.)

Model Caroline Louise Forsling sues Estée Lauder for branding her as old.

She wants $2 million after a test picture of her was used in an ad campaign that she didn't know about (for a product she didn't use). It's one of those before and after pictures, where the before and after sides were shot at the same time.

Obviously, she signed a contract. What did it say? Is there some understanding that the test shot photo will not be used, that she retained some control over which products her image could be used to promote, or that her image could only represent youth and beauty? What went on before the lawsuit was filed? She's damaging both herself and the product by going public with the dispute, because we're all invited to stare at her aged face, in the unflattering photograph we might otherwise never have seen or noticed. Meanwhile, the company suffers from having their ad revealed as a fraud. I'm thinking Forsling tried to get more money when she saw how the photo was used, and threatened to file the lawsuit, which we're seeing now, because the company called her bluff. So, great, everybody loses. Except us, the consumers who might have believed a little too much in Plantscription serum by Origins.

(Personally, I never buy a product called "serum." It sounds spookily medical.)

"When I arrived back in 2001 I found 10,000 lawyers in the Department of Defense."

Says Donald Rumsfeld:

They're there at every level. We live in an enormously litigious society and the Congress contributes to that. As a result, there's practically no step that's made by anyone in the Pentagon and in the Department of Defense where they do not take into account the legal implications and consult lawyers about it....

There's a pattern in the department, at the top level, the chairman and the chief and the Joint Chiefs will recommend some rules of engagement for a certain circumstance. It will then be sent down the chain of command and it will get to the next command level, maybe the Combatant Commander, and the Combatant Commander will look at it, and then he will not want to violate it. So he might take a little tuck in it. And then it goes down to the next level. And it's got now it's in a country commander. And he looks at it and he doesn't want to break the rule so he takes a little tuck in it. You end up with four or five layers down there taking tucks and you end up with some rules of engagement that don't look like what the chairman of the Joint Chiefs or the Joint Chiefs of Staff or even the Combatant Commander intended. Now why is that? Well, it's fear. It's because of our litigious society. It's because of Congress overseeing things and having hearings.

Erstwhile Yale Law students Heide Iravani and Brittan Heller settle the lawsuit they brought against Cheese Eating Surrender Monkey, Pauliewalnuts and Sleazy Z, etc. — the AutoAdmit commenters who wrote those nasty things.

I've written about this lawsuit many times, and now, because the terms of the settlement are being kept secret, it's hard to comment. I would like to know if the real goal of the lawsuit was to destroy the various individuals who had written under pseudonyms. Did the claims have much chance of success? Not knowing how much if any money Heller and Iravani extracted from the men they sued, it's hard to say. That dollar amount is an important fact — kept secret — that has to do with whether the legal process was used mainly (or only) to inflict public exposure on people who took advantage of the ability to write pseudonymously on the internet. That is an important free speech issue, and I would like all the relevant information about it. Heller and Iravani got the names they wanted. I want the numbers.

Al Sharpton is threatening to sue Rush Limbaugh for defamation? But that's what Rush wants, isn't it?

Let me explain my theory, which I based on: 1. my understanding of litigation and 2. my familiarity with the way Rush Limbaugh's mind works. Note: 1. I'm a law professor, and 2. I listen to Rush all the time, and I pay particularly close attention when he contrasts what people say and what they are really trying to do.

So Rush writes this op-ed in the WSJ. Go over there and read the details about his thwarted investment in the St. Louis Rams. I just want to focus on what he said about Al Sharpton, who was one of the key people who made a conspicuous fuss about Limbaugh:

In 1998 Mr. Sharpton was found guilty of defamation and ordered to pay $65,000 for falsely accusing a New York prosecutor of rape in the 1987 Tawana Brawley case. He also played a leading role in the 1991 Crown Heights riot (he called neighborhood Jews "diamond merchants") and 1995 Freddie's Fashion Mart riot.

Sharpton threatens to sue because of that, reports CNN, which adds:

The Crown Heights riot began after a Hasidic Rabbi accidently struck and killed an African American boy with his car. The boy died from the injuries–sparking four nights of riots. The Rabbi was not charged, but Sharpton played a large role in rallying on behalf of the young boy’s family and the African American community.

According to a statement put out by Sharpton’s media consultant, a study New York Governor Mario Cuomo commissioned showed Sharpton was not involved in the Crown Heights incident until after the rioting concluded.

"Mr. Limbaugh's blatant and defamatory statements regarding the Crown Heights Riots falsely give the impression that Rev. Sharpton was present during the violence that occurred when in reality he had been called in by the family after the violence," Sharpton’s statement says.

"In terms of Freddie's Fashion Mart, Rev. Al Sharpton, along with local elected officials supported the protests. However, a lone gunman who disagreed with the nonviolent nature of the protests entered the store and killed seven people and himself… For Mr. Limbaugh to imply that Rev. Sharpton has anything to do with someone that killed people and himself is blatantly wrong," the statement continues.

CNN doesn't bother to fact check either Limbaugh's assertions or Sharpton's. What did Sharpton really do in relation to those old incidents?

I think Limbaugh was baiting Sharpton. Sharpton now has to talk about those old riots and the way he acted back then. If he sues, it will draw intense attention to the details of what happened, and we'll have to debate about the precise language Limbaugh used and how close to accurate it was. The question of the damage to Sharpton's reputation will be put in issue, and there will be discovery and factfinding relating to Sharpton's reputation and how much money it is worth. That's pretty risky for Sharpton, who likes to pose as an elder statesman nowadays. Meanwhile, Limbaugh, who may not want to begin any litigation, will have the opportunity to counterclaim, accusing Sharpton of defamation.

Look out, Reverend Al, it's a trap!

ADDED: This whole NFL controversy is a gift to Rush. I don't think Rush cared much about being one of the investors in the Rams. He wouldn't have had any serious power running things, and the group of investors came to him about it. Now, he's the center of attention, everyone's talking about him, and plenty of them are embarrassing themselves with careless, stupid, and nasty racial pandering — producing audio clips which he will play on his show, accompanied by scathing mockery and insistence that the mainstream media air his side of the story. If they do not, that's more fuel for Rush's red-hot critique of media. If they do, then he's on mainstream media, telling it his way at last.

"ACORN Sues Hidden-Camera Filmmakers, Breitbart.com. It should be fun to do discovery on this one."

Glenn Reynolds is pretty sure ACORN is falling into a trap.

Yes, it's almost as if the real point of the videos was to provoke a lawsuit that would open ACORN to the legal intrusions of discovery. And of course, Giles and O'Keefe will get even more publicity, and it shouldn't be hard for them to attract aggressive legal counsel and a hefty litigation fund.

And here's Barney Frank on O'Reilly today:

Challenging the line between art and commerce is cute until it's not cute.

"The point of installing a boutique inside the 'Copyright Murakami' exhibition at MOCA's Geffen Contemporary building was to highlight the Japanese pop artist's trademark blurring of the lines between art and commerce, MOCA officials said at the time of the 2007-08 show. But [Clint] Arthur contends that selling repurposed handbag material as 500 collectible art prints priced at $6,000 and $10,000 crossed the line from commerce to fraud because Louis Vuitton allegedly hid the fact that the prints were made from the same fabric sheets as the Murakami-designed bags and accessories selling nearby for almost $1,000."

Now, try keeping the line between art and law. It's very hard!

About that AutoAdmit litigation.

The latest.

... Anthony Ciolli, a University of Pennsylvania Law School graduate and former chief education director at AutoAdmit, can press ahead with his lawsuit against Stanford Law School professor Mark Lemley, who worked as counsel at San Francisco-based Keker & Van Nest, two Yale Law School students and others.

Ciolli's lawsuit claims that he was wrongly included as a defendant in a case brought in June 2007 by the two law students, who alleged that AutoAdmit defamed them on its discussion board. He also claims that Boston-based Edwards Angell Palmer & Dodge rescinded its offer of full-time employment because of the alleged connection between him and the statements about the women.....

Named as defendants in his suit are Heide Iravani and Brittan Heller, the former Yale law students; and ReputationDefender, a public relations firm that represented the students. Also named are Lemley; Keker & Van Nest; the Los Angeles-based law firm Rosen & Associates; and attorney David Rosen. Lemley and Rosen were attorneys for the students.

Ciolli's lawsuit alleges wrongful initiation of civil proceedings, abuse of process, libel, slander, false-light invasion of privacy, tortious interference with contract and unauthorized use of name or likeness.

A huge reason not to sue someone: He'll sue you back. How awful!

There isn't too much litigation in Wisconsin.

Says the University of Wisconsin Law School.

"The notion that somehow civil justice is hurting business in the state is just totally unfounded," said UW law professor emeritus Marc Galanter....

Galanter said one intent of the report was to look at what he called the "consistent drumbeat" put forth by Wisconsin Manufacturers and Commerce... that claimed excessive litigation was hurting the state's business climate.

A Wisconsin Manufacturers and Commerce spokesman responds:

"It should come as a surprise to no one that the UW Law School is trying to say that we don't have enough litigation in Wisconsin... They have a vested interest in trying to graduate as many future lawyers as they can accommodate. So they have an interest in expressing that point of view."

Christmas decorations, the Freedom from Religion Foundation, and a radio alert.

I'll be on WORT radio today at noon Central Time, talking about Christmas decorations and the Constitution with Annie Laurie Gaylor of the Freedom from Religion Foundation. (She's a co-president of the organization, which is based in Madison.)

You have to be in a 50 mile radius of Madison to listen on the radio (at 89.9 FM), but you can listen on line here. We'll be in the studio and taking questions by phone. At (608)-256-2001 or (toll free) at (866) 899-WORT. After the show, go to the archive to listen.

If you want to bone up on the law beforehand, read Lynch v. Donnelly — the case where a creche was held constitutional — and County of Allegheny v. ACLU — the case where the creche was not constitutional (but a Christmas + menorah was). For extra credit, read Capitol Square Review Bd. v. Pinette — which held that Ohio violated the KKK's free speech rights by not letting it put up a cross on the statehouse square. There are also the two cases about Ten Commandments displays that were decided on the same day in 2005 Van Orden v. Perry (constitutional) and McCreary County v. ACLU (unconstitutional).

The Freedom from Religion Foundation just filed suit against mayor and City Council president of Green Bay, Wisconsin, over a creche outside city hall:

Mayor [Jim] Schmitt says Christmas is a nationally-recognized holiday, and city leaders have every right to adorn city hall with Christmas flair.

"I'm saddened by what has all transpired here. I'm saddened by the lawsuit, by some of the divisiveness it's caused, but it's Christmas and I'm going to celebrate it," Schmitt said....

"They're sending a message of endorsement of christianity over other religions and they're sending a message of exclusion to everybody else," said Annie Laurie Gaylor....

"In my opinion, it was a very expensive for taxpayers publicity stunt by a right-wing politician," Gaylor said.

Expensive? The expense is the litigation.

Here's an opinion piece by Dan Barker (who is the foundation's other co-president):

[S]ome of us do find the anti-humanistic nativity scene offensive since it assumes we are all sinners in need of salvation and slaves who need to humbly bow to a dictator — in a country that is supposedly proudly rebellious, having fought a Revolutionary War to expel the king, sovereign and lord.

And here's my 2004 post about the Christmas decorations in the Wisconsin Capitol building, including a photograph of a sign the state allowed the Freedom from Religion Foundation to display, which tells us "Religion is but myth and superstition that hardens the heart and enslaves the mind."

ADDED: Here's some background on the Green Bay creche. Don't miss the time line:

Wednesday, Dec. 12 – Schmitt is bombarded with e-mails, phone calls and criticism and praise for the display. He says the city likely will have to honor all requests for display space until the City Council can draw up guidelines and limits.

Thursday, Dec. 13 – City receives six formal requests to display symbols on the roof.

Friday, Dec. 15 – Practitioners of Wicca, a religion associated with witchcraft, drop off a wreath containing a pentacle, a five-pointed star used as a Wiccan symbol for the elements of nature. The wreath is installed on the entrance roof.

Saturday, Dec. 16 – City receives a request to display a plain aluminum pole, said to be a symbol of Festivus, a religion promoted by the TV show "Seinfeld."

Monday, shortly after midnight – Police receive a report someone removed the Wiccan display. Schmitt announces no displays other than the nativity scene will go on the roof until the City Council meets and decides a policy....

Ironically, trying to make the public recognition of Christmas more serious ends up making it more of a joke. There is a symbiotic relationship between litigious atheists and pandering politicians. They serve each other's interests, but does anyone else benefit?

ADDED: I corrected mischaracterization of the creche in Lynch.

UPDATE: Gaylor ended up phoning in and only making herself available for 5 minutes. She had her points ready and reeled them out on cue. But when she took at gratuitous swipe at George Bush for closing the federal government on the day before Christmas, and I disrupted the presentation by asking if she thought the Christmas holiday violated the Establishment Clause. She refused to answer and rushed off the phone. I got the impression that she was unnerved at the idea of going off script and exposing her ideas to scrutiny. I noticed that she continually asserted that the Establishment Clause law is very clear — which is laughably wrong and therefore best to done as a monologue or when — excuse the expression — preaching to the choir.

NYC morning.

Yesterday was the "Writing About the Law" conference and the first deadline for the NYT column, and now, it's Saturday in New York. Time for a little blogging. I've got my tiny tray from room service, a small carafe of coffee and an orange juice, for which I signed the bill for $18 without joy or regret. I want to be in my room, I need coffee, and that's what it costs. I'll do some NY things today, and at 5 I'm doing the meet-up with readers of this blog. (Email me if you want to be included.)

I still have some notes from the conference which I'm going to use in a few posts. You'll have to wait! (Unbloggy, I know.) I'll do a pretty substantial post on the lunch talk from John Jay Osborn (the author of "The Paper Chase"). For now -- because I want to get to the morning news -- let me post some photos from the dinner the night before the conference. We were in a cool basement room at the City Hall Restaurant... honoring Jethro K. Lieberman's book "The Litigious Society":



At my table, the glamorous and charming Nadine Strossen (of ACLU fame):



Also at the table, two very nice New York Law School students, John Indeck (left) and George Esposito (right):



I expect big things of these guys.

The "litigious Orthodox rabbi" and the "overzealous, politically correct officials terrified" of everything religion-related.

The Seattle Christmas tree incident. It's an American holiday tradition: arguing about religion and threatening litigation. What would the season be without it?

Now we know it's a publicity stunt.

Oprah's suing him for running an Oprah for President website, and Patrick Crowe continues to push for Oprah for President. And don't give me that oh, he's a retired math teacher crap. He's selling a book.

Patrick Crowe says he is having a blast promoting talk-show icon Oprah Winfrey for president. Winfrey's lawyers are not.

Crowe has been unofficially campaigning for the first lady of daytime TV for years. The Kansas City man's Web site comes complete with a campaign song and volunteer sign-up. He also sells "Oprah for President" T-shirts.

Please note. I'm not saying Oprah should win. (Her claims are based on copyright and trademark law.) I think there should be plenty of room for people to make websites and write books about public figures. I'm just saying that the guy is obviously not just some character who wants Oprah Winfrey to be President:

"It has become increasingly serious to me," Crowe, who opposes the Bush administration and its foreign policy, told The Kansas City Star for a story Friday. "I know Oprah can do better than that."

Mmm-hmmm. You figured out a way to get attention for your anti-Bush opinions in this noisy world of opinion.

Anyway, would Oprah be a good President? I think she's too litigious.

"Just because he was inspired by the sea does not mean that no one else can use the sea to make glass art."

Says Bryan Rubino, a glass-blowing artist who is being sued by the glass-blowing artist, Dale Chihuly. (Rubino worked for Chihuly for 14 years.) "If anything, Mother Nature should be suing Dale Chihuly."

The suit, rare in art circles, offers a sometimes unflattering glimpse at how high-powered commercial artists like Mr. Chihuly work. The two glass blowers say that he has very little to do with much of the art, and that he sometimes buys objects and puts the Chihuly name on them, a contention that Mr. Chihuly strongly denies.

He acknowledges that he has not blown glass for 27 years, dating from a surfing accident that cost him the full range of shoulder motion, an injury that struck three years after he had lost sight in his left eye in a traffic accident.

Still, Mr. Chihuly said, he works with sketches, faxes and through exhortation. Nothing with his name on it ever came from anyone but himself, he said....

...Mr. Chihuly called Mr. Rubino a "gaffer," a term for a glassblower who labors around a furnace at the instruction of an artist. Asked to assess Mr. Rubino, Mr. Chihuly said, "He was an excellent craftsman" with little vision of his own.

"You think I would ever let Rubino decide what something looks like?" Mr. Chihuly asked.

Why is this a copyright case and not a contracts case? If Chihuly hired Rubino and kept him on for 14 years, why did he he never make Rubino sign a contract that would have limited Rubino from making similar shapes to sell on his own?

Bonus photo: a closeup of the big Chihuly sculpture at the Milwaukee Art Museum, taken last Saturday:



There is a signature look to the work. It's impossible for me to tell from the linked article how close to Chihuly's Rubino's designs are. This article gives some more context:

Chihuly sued Rubino and Redmond art entrepreneur Robert Kaindl in October, accusing them of copying his designs and selling "knockoffs" at several local galleries. Last week, Chihuly alleged in court documents that the two had pored over books of Chihuly's works and picked out designs that Rubino would make for Kaindl to sell....

...Rubino says he created or co-authored some of the works that Chihuly is suing to protect, and that some of the work he did for the artist was done "without any creative input whatsoever from (Chihuly Inc.) or Dale Chihuly."

As evidence, Rubino submitted a fax he says he received from Chihuly. The fax includes sticklike drawings and the following instructions: "Here's a little sketch but make whatever you want. We'll get everything up to Tacoma when you're done and I'll try to come down while you're blowing. Till then, Chihuly."...

Rubino is asking the court to declare him a co-author of some of Chihuly's more famous pieces, and award him profits associated with those works.

Chihuly acknowledged in his suit that "Rubino worked on virtually every series created by Chihuly." But he claimed that Rubino signed away any rights to the work when he was Chihuly's employee, and that as a contractor, all of the work Rubino made for Chihuly was done under Chihuly's direction and control.

So what do you think, copyright experts? I'm guessing that it's rather obvious that the "work for hire" Rubino did for Chihuly makes him not a co-author and that this claim is a bargaining chip in the litigation process. Rubino just wants to be able to sell his own work now, even though it's similar to the work he did with Chihuly. Should he win on that claim? Artists are always copying each other's styles. It's disturbing to think that they should have to worry about being sued by the more successful artists who came before them. The old could prey on the young mercilessly, and the development of artistic styles would be crippled by litigious artists.

Chihuly's designs are way too distinctive to make me buy Rubino's argument that they are nothing more than nature's design. Chihuly may like to say that he's inspired by the sea, but these swirls and curlicues don't look much like any sea I've ever gazed upon. But perhaps his designs come quite directly from the inherent limitations of glassblowing, the traditional techniques of the craft, and the decision to work very large. If so, Chihuly is trying to monopolize the field of art glass.

The nominee's wife -- and conservative feminism.

The NYT looks at Jane Sullivan Roberts, the wife of the new Supreme Court nominee. Ms. Roberts is a lawyer who does pro bono work for a group called Feminists for Life. Interestingly, Senator Kennedy himself has said that the wife's activities "ought to be out of bounds" as a subject of inquiry. But, obviously, people are going to think about anything that might give insight into the fairly inscrutable Judge Roberts. And the concept of "Feminists for Life" is quite intriguing. The Times quotes their mission statement:

"Abortion is a reflection that our society has failed to meet the needs of women. Women deserve better than abortion."

Notice that you don't have to want Roe v. Wade overturned in order to say that. Doesn't that statement align fairly well with what many pro-choice Democrats -- such as Hillary Clinton -- say about abortion? Feminists for Life, do, however, want to see Roe overturned:

In previous years, the group weighed in on litigation seeking further restrictions on abortion, but [Feminists for Life president Serrin] Foster said that was before Mrs. Roberts joined the board.

"We're not a litigious institution now," Ms. Foster said. "We decided we were not a legal group; we were going to go after parenting resources and pregnancy resources, and Jane was part of that redefinition. She came on at that time."

Sensing the highly charged atmosphere around the issue, longtime friends and colleagues of Mrs. Roberts declined to speak this week about her views on abortion. But they characterized her political and social views much as her husband's friends have portrayed his in recent days: expressly conservative, but not dogmatic.

"Jane has very strong personal convictions, politically and with regard to her faith," said Christine Kearns, a friend and colleague who has worked with Mrs. Roberts for 18 years at a law firm now called Pillsbury Winthrop Shaw Pittman. "But as long as I've known her, I've never known her to impose them on others or to be unwilling to listen to other people's points of view."

I hope that strong liberal feminists see the value of feminism within conservative thinking. Partisan Democrats sometimes think they own the allegiance of feminists, even to the point where they think their offenses against feminism won't matter. I lost my allegiance to the Democratic Party over one of those offenses. I put feminism above partisan politics, and I look for connections among those who are concerned about women's issues. Maybe you'll consider doing that too.

Bonus info: Ms. Roberts used to drive a VW Beetle, and now she drives a PT Cruiser. Analyze that.