Legal News You Can Use: A Victory for Fantasy Sports

On Monday, the U.S. Supreme Court denied review of the Eighth Circuit case Major League Baseball Advanced Media v. CBC Distributing (Docket No. 07-1099). In that case, Major Leauge Baseball, the Players Association, as well as the NFL, NBA, NHL, NASCAR, WNBA, and PGA argued that they have the sole right to control the use of player (driver, golfer) likenesses and statistics for fantasy sports games. MLB-AM had lost twice: in the District Court for the Eastern District of Missouri and at the Eighth Circuit.

MLB-AM had argued that, under Missouri law, players had a right to managed how their likenesses are used, a right to managed their publicity. CBC argued that it had a First Amendment right to use this widely-available information, and that the First Amendment right trumped whatever claim the players had under Missouri state law.

The Eighth Circuit agreed, holding that the First Amendment right, when balanced against the state law claim, was more important. Important, I think, for the development of this law, the Eight Circuit said that MLB-AM's state law claim barely implicated that which Missouri had sought to protect: the right of an individual to protect his or her livelihood where the individual's likeness is central to the individual's ability to earn a living. It was telling, in my opinion, when the Eighth Circuit noted that ballplayers are "handsomely" reward for their work, can secure a living through endorsement deals, and that there is no chance inclusion in a fantasy sports game can be viewed as an endorsement of the game itself.

By not granting review, the Supreme Court let the Eighth Circuit's decision stand as an important statement of law on the issue of the First Amendment right to use information in the public domain, such as players' likenesses, statistics, and nicknames. It's a win for fantasy sports owners, but I think also a win for those of us who are concerned that the law of intellectual property is becoming too artist-, player-, and company-friendly.

That said, anyone interested in getting an MLB second-half league together?

My Woefully Unproductive Day

Today has been probably my worst day at work in months. I'm hoping that I can snap out of this right quick, but I'm not going to hold my breath. So, with that, some things that caught my eye today.

First, in case you missed it, the Celtics jumped out to a 1-0 in the Eastern Conference Finals against Detroit, winning 88-79. The C's looked really good, and at one point Van Gundy noted that if you just watched the way the C's played and paid no attention to the score, you'd think they blew Detroit out of the New Garden. Pierce was on point again, KG completely out-played Rasheed Wallace, and Rajon Rondo actually outdueled Chauncy Billups. Still, the Celtics never ran away with it, even with the Pistons playing a sub-par game. Scary.

Next, it doesn't take a rocket scientist to realize that Obama and American Jews have a very uneasy relationship. But, as Thomas Friedman pointed out a few days ago, which would be better for Israel? Competent U.S. foreign policy leadership, even if it is critical of Israel, or four more years of an American president squandering this nation's political capital abroad?

Among the things I'm glad I'm not doing this week: sitting on the R. Kelly child pornography case's jury.

Obama's going to win. What's the next stop for HRC? Some say the Supreme Court. That would give us a second woman justice, and it would give HRC's supporters a reason to vote Obama. But...really? Senate confirmation could be a breeze, but how quickly do you think that Republicans would abandon their "no fillibuster" mantra if she was nominated? She may be a first-rate legal mind, but Justice Clinton might be a stretch. Still, I'd love to see her and Scalia mix it up, majority and dissent style.

DC Handguns Case: Justices Ready to Find an Individual Right?

Several commentators have had a chance to review the transcripts in today's oral argument (found here) in DC v. Heller. All seem to be saying the same thing: the majority of the Supreme Court seemed ready to recognize an individual right to bear arms, a right not constrained by belonging to a militia.

I've not had an opportunity to read all 110 pages of the transcripts yet today, but as some of the folks at SCOTUSBlog pointed out during their "live" blog session today, what the Justices said at argument today may not mean much. That isn't to say that the collectivist view will win the day, but the opinions will certainly have a lively discussion over how strong an individual right to guns might be. How strong must a government interest be to limit an individual's right to bear arms, if that is at all possible?

That's probably the best place to start the discussion. What kind of government interest do you think warrants intrusion on the individual right to bear arms? Is there any government interest at all? Or are you out in left field, still banging the drum for a collectivist right?

To the comment thread!

Tomorrow at the Supreme Court; John McCain in Iraq

Tomorrow, March 18, the U.S. Supreme Court will hear oral arguments in District of Columbia v. Heller, the DC guns case. There's a lot to write about here, but instead of offering my own analysis, I thought I'd throw out a few resources and kick things down to the comment thread.

First, there's been some dissention in the Republican ranks regarding Solicitor General Paul Clement's handling and argument in the case so far. The reason is that he's strayed from the Administration line on the reasons that the DC gun law might be unconstitutional. Seems that the Administration wants to jump straight from the idea that there is an inviolate right to guns, and the Solicitor General has taken a more circuitous route, arguing that the DC gun law is unconstitutional on other grounds and that the per se unconstitutionality of gun laws plainly ignores the history of the Second Amendment.

Second, there will be a 75 minute tomorrow. The New York Times tends to put up audio arguments soon after the arguments conclude. SCOTUS Blog will provide thorough analysis, good for both the casual reader and those who want a starting point for a more substantial inquiry. Also be sure to check out Above the Law, the legal tabloid. I find it annoying, but its fun to watch the "big law" types try and show off, which usually fails. But, ATL is usually good for a laugh as it doesn't take itself all that seriously. It also links to a number of other law blogs of note. And last, but not least, the Supreme Court itself will be making transcripts available soon after the arguments for those of you (like me) that don't have speakers on your work computer.

Now, on to some other things.

Republican presidential nominee John McCain made a stop in Iraq as part of Congressional tour, but, let's face it, this was more of a picture opportunity and campaign stop than anything (even included a fundraising dinner in London). So, there went McCain, confidently striding through Iraq in a flak jacket, getting his picture taken. Meanwhile, the Iraqis weren't exactly lining up to get McCain's autograph.

Another Samarra shop owner, 52-year-old Hamid Saleh, said he wanted the Republicans to lose the election. “All I want is someone who works to fix my country, and not destroy it,” he said.

Well said, Hamid, well said.

SCOTUS and Hillary: The Movie

Just in time to coincide with what's turn into our weeklong critique on the theatre of the absurd known as the 2008 U.S. Presidential Election, there's news out of the Supreme Court that Citizen's United, a conservative advocacy group, is seeking an expidited review of a recent D.C. Court of Appeals decision in the Supreme Court. The group has put together a film called Hillary: The Movie, which tries to explain all the reasons why Hillary Clinton is not fit for President. Rumor is that if Obama wins the nomination, another film is in production.

The legal question here is whether campaign finance laws apply to promotional ads for this kind of film. Clearly, if the race comes down to Hillary versus the Republican nominee, that nominee will benefit from the film. Of course, there have been a lot of subtle and not-so-subtle political movies in the last few years, from SiCKO (never sure how to spell that), to Bowling for Columbine, and even an Inconvenient Truth, so how the Supreme Court decides this case could have broad ramifications. But, aside from that, this kind of film raise some pretty serious questions about our electoral process. As others have said on this blog in more artful ways, we've reached a point where ideas and policy don't matter.

What seems to matter is which candidate is willing cut deepest in Slanderfest '08, both now during the primaries and later in the general election. You've got Clinton and Obama slugging it out over who has the most experience while our boy John Edwards is actually putting some ideas forward. On the other side, there's a race to see who would kick out the most illegals, kill the most terrorists, and cut the most taxes. And all of it boils down to a growing cabal of personality cults. It's no longer what we believe in so much as who's side we're on.

And that's the deal with this movie. It's about hatred of a person, not the person's ideas. All legal questions aside, it represents an approach to politics that we must reject. The best possible outcome with Hillary: The Movie? Total box office flop, with terrible critical reviews.

Friday Morning Blog-o-rama

Good morning everyone. I'm seriously wishing I hadn't gone out with my roommates last night. It's making sitting in my office kind of unbearable right now. Someone has the heat set way too high.

Two things to get your Friday going right. First, it's not really news when a man kills a dog. It may be news however when 1) the man is allegedly suicidal 2) he asks the dog to shoot him and 3) the dog is a cockapoo. Just another case of southerners polluting the north if you ask this Yankee.

Second, and more importantly, the Supreme Court recently heard oral arguments on Indiana's voter ID law. The law, so far as I can tell, requires voters to present a state issued photo ID before they can vote. That, in a sense, seems like a very prudent requirement, but as with any law, the devil is in the details, or as the law kids can tell you, the innane hypotheticals.

The problem here boils down like this. First, as you can imagine, voting is a very important right, a fundamental right. In order for the state to infringe upon it, the state must have a very, very good reason. And there seems to be some infringement upon the right to vote, especially for poor people who can't afford to get a photo ID, or those who might be denied an ID for reasons that would have nothing to do with voting or voting fraud. Liberal folks get that argument.

For the conservative folks, the idea is law and order and keeping fraud at bay. That's an easy one to understand. But, as the folks over at SCOTUSBlog point out, this issue a political football, with both liberals and conservatives accusing each other of voting shenanigans.

On a side note, I just took a fantastic poop. I'm feeling much better now. I love the restorative power of a simple poop.

Legal News You Can Use

Good morning, folks. Two things on the agenda this fine morning.

First, I have an interesting article from a fellow blogger (and my former law school classmate) Jon Dodson at Down With Tyranny. Jon, writing about the pending D.C. handgun case in the Supreme Court, has an interesting analysis of how judicial philosophy might collide with political philosophy for some of the conservative justices.

The issue for some of the conservative justices is their adherence to so-called "conservative" interpretive principles. These principles, which I personally find rational, suggest that when a judge considers the issues in case, she ought to try to give effect to the intent of the framers of the law (usually a legislature) by first focusing on the actual language of the law. That extends to constitutional construction. The problem in the D.C. handguns case, D.C. v. Heller, is that a fair reading of the Second Amendment's language doesn't really support an individual right to bear arms so much as a collective right. Political conservatives are sold on the individual right, so, in order to secure an individual right, those that have also bought into conservative judicial philosophies might have to betray their "strict constructionist" values in order to secure it.

Jon gives what I think is an excellent parallel: Roe v. Wade. The D.C. handguns case has the potential to be one of those decisions where the Court goes out of its way to protect a right that might not be protected by the Constitution (something you might not want to tell your new co-workers, Dews). So, depending upon how the Roberts Court approaches this case, we liberals may have our own "Roe v. Wade" type case to rail against for decades to come. This just makes the next few months all the more exciting.

On another note, California has sued the EPA over the EPA's decision to block implementation of tougher vehicle emissions standards, and Vermont has joined the suit. A few months ago, Vermont was the first state to win the right to impose tougher vehicle emissions standards, winning a case in Vermont federal District Court (actually, the environmental law clinic at my law school participated and argued in the case). Several states, including California, won similar cases after the Vermont decision. You know what happens next: the Bush EPA does whatever it can to prevent the states from enforcing their new authority. It did this by not granting a necessary waiver. But it did so without giving solid reasons, so there's hope that Vermont and California will be able to enforce their new authority in the near future.

More than anything, this goes to show the (unlawful) lengths that this administration will go to in order to protect favored industries and constituencies. This exposes perhaps the scariest face of this administration: the one that is willing to eschew the rule of law to get what it wants. All the more reason why this election season is one of the most important in a long time.

Happy Thursday folks!

Kicking off your Wednesday before Thanksgiving

First, the New York Times has a great article on District of Columbia v. Heller, the Second Amendment case that the Supreme Court agreed to hear yesterday. One of the finer and more interesting points that my Constitutional Law professors in law school would have loved: the question of whether the Second Amendment applies to the States. As you may or may not know, until after the Civil War, the Constitution (up to the Tenth Amendment) was considered to apply just to the Federal government, not State governments. The theory seemed to be that States should decide for themselves to what extent they wanted to provide rights, which is why you have some states, like Vermont, that to this day have very expansive rights language in their State constitutions. The Fourteenth Amendment changed that, mostly as a means to stop Southern State governments from depriving newly freed slaves of basic civil rights.

However, the Second Amendment has rarely seen much action in a court room. So, there have not been many opinions interpreting whatever right it actually secures. As the NYT article suggests, Heller may be the opening salvo in a new string of cases interpreting the Second Amendment. How this debate is framed and eventually decided will be very interesting for those who are interested in the gun debate and constitutional law.

On a less serious (or more, depending on your take) note, scientists have discovered the fossil of an ancient, giant sea scorpion. This sucker was 8 FREAKIN' FEET LONG. That's 50's B-movie size. Giant sea scorpions. That's enough to make me hope the S.C. protects individual gun rights.

Supreme Court to hear gun case

The Supreme Court has granted certiorari on the Second Amendment case, District of Columbia v. Heller. This case arises out of the D.C. handgun ban. The precise issue to be decided has been framed as "Whether the following provisions — D.C. Code secs. 7-2502.02(a)(4), 22-4504(a), and 7-2507.02 — violate the Second Amendment rights of individuals who are not affiliated with any state-regulated militia, but who wish to keep handguns and other firearms for private use in their homes?” More here.

The way this question is phrased would seem to require the Court to decide whether we have an individual right to bear arms. Very big, and the various justices' approaches to deciding this case will say a lot about their judicial philosophies. More as the news rolls out.

Strike!

Hollywood writers are set to strike, possibly by the end of today. For you, that means Conan, the Daily Show, and whatever else you watch in order to escape the doldrums of your daily life past 11 p.m. are about to suck, a lot. But, you know what, good for them. Since the early 1980's, the nation has been de-unionizing in a big way. I don't know if it's a direct consequence of de-unionization, but I'm sure that the reduced number of union workers in the U.S. has something to do with the increased number of uninsured Americans and rising corporate salaries. After all, if people aren't working together to get better benefits, what chance does any one of them really have? In short, I'll just play my new copy of Guitar Hero III and skip the Daily Show for a while and be happy to do it.

The Supreme Court has gotten into the business of staying executions lately ahead of an anticipated ruling on the constitutionality of thre-drug lethal injections. As a result, Harris County, Texas, has temporarily stopped pursuing the death penalty. Harris County alone executes more people than most states. As a person generally opposed to the death penalty, I think this is good news.

Lastly, I read this about the Dodgers hiring Joe Torre. I was shocked, shocked I tell you, to find out that the Dodgers drew 3.8 million last year. But, does it really count if they arrive in the 4th and leave in the 7th? I vote that the Dodgers go back to Brooklyn and the Mets are moved to Las Vegas. You think I'm joking, but I'm not. I think it'd be best for everyone. Or you can throw the Mets into the Arctic Ocean. That works with me too.

Tuesday Blog Round Up

Handy tips for anyone who comes across the Faux News Gestapo from our buddy KO. I would love to be ambushed by these jackoffs, it would be a promo the likes that hasn't been seen since The Rock threw the IC Title off a bridge.

Perhaps Clarence Thomas just fills the one nut job spot on the Supreme Court that has been in place since Chief Justice Rehnquist. Gotta love a man who wishes to send us all back in time seventy years and is afraid of progress.

The Right Wing Blogs have chosen their five favorite people in the world. I am shocked that BillO wasn't higher, but then again fifty and sixty year olds tend not to be on the intertubez.

This is the kind of shit that wakes me up in the middle of the night. Perhaps I over react, but there is no way this should be allowed in this country.

Great, isn't this the kind of news you love waking up to? If you don't believe that corporations are pulling strings in Congress then you must have your eyes welded shut.

We have some Phillies fans here so here is special top ten list for them to say to a Mets fan, if there are any.

Just continuing proof that "Yankees fans" will buy anything with the logo on it. I can't wait to watch them lose in the first round when A-Purse chokes once again.