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January|February 2005
Time Bomb at Mauna Loa By Bill McKibben
Pharma Furor By Richard A. Epstein
Elsewhere
Not So Free Speech By Rod Smolla
Touting Thomas By Stephen B. Presser

Elsewhere

A law professor watches too much TV, trademark law treats Americans like idiots, the First Amendment protects coarse college cheers, and other happenings in the nation's law reviews.


SIRENS AND SOPRANOS

Before he sailed to Ithaca, Odysseus was warned by the goddess Circe to beware the Sirens, who lured sailors to wreck on their craggy-shored island with beautiful, hypnotic singing. Odysseus, wishing to hear the Sirens without falling prey to their temptation, ordered his men to tie him to the ship's mast, plug their ears with wax, and ignore his cries to untie him once he was under the power of the song.

According to Robert Blecker in a recent issue of the New York Law School Law Review, "Then, constitutionalism was born." His article is one of a pair recently published there that rely on extended cultural comparisons to pad out fairly mundane legal analysis. To Blecker the story of Odysseus and the Sirens illustrates the prudence of government structures that provide advance protections against rash changes of heart. Our framers made the Constitution difficult to amend, he believes, to keep the siren song of popular opinion from sweeping over the law's basic guarantees. Blecker invokes the story to applaud the electoral college, the life tenure of judges, the long terms of senators, and, curiously, the term limit on the presidency.

A more contemporary metaphor is at the heart of "Innocence and The Sopranos," which uses "America's favorite TV mob family" to assess the Supreme Court's jurisprudence of . . . workplace discrimination claims. The court has long rejected the idea of retroactively taking pay or benefits from nonminority workers, writes Seth D. Harris, even when the discrimination claims of their minority co-workers prevail. The court has justified this reluctance by describing the lucky workers as "innocents" who were not responsible for the discriminatory system that helped them.

To Harris, these decisions smack of gross injustice, and he uses the fictional family of mob boss Tony Soprano to illustrate just how un-innocent the court's "innocent" workers really are. He argues that like Tony's children, who benefit from illegal dealings though they haven't colluded with their father, nonminority workers should share culpability with their employers.

Recognizing that his metaphor may not work quite as well as he'd like, Harris apologizes on the last page of the article: "In its pure form, the Sopranos metaphor is an imperfect tool for understanding the workplace discrimination cases." But that's no reason to discard it, he says: "If a confrontation over language and metaphors results in full disclosure of the policy choices underlying judicial decision making . . . then this endeavor is well worth the effort." Or perhaps it's time for the editors at New York Law School to put wax in their ears the next time a professor with a half-baked cultural comparison comes calling. New York Law School Law Review, Volume 49, Number 2

THE EMPTY 8TH AMENDMENT

Recent years have seen a revolution in the Supreme Court's thinking about sentencing. In 2000, its Apprendi v. New Jersey ruling invalidated a statute that allowed judges to tack on additions to sentences for hate crimes. In 2002, Ring v. Arizona held that only juries, not judges, could impose a death sentence. Last year's blockbuster Blakely v. Washington overturned a Washington state sentencing scheme that allowed judges to boost convicts' sentences if the judges identified aggravating factors. The federal sentencing guidelines are next on the block, in U.S. v. Booker and U.S. v. Fanfan, a pair of cases argued in October.

The recent decisions may have affirmed the jury's power over the penalty phase, but that's not necessarily a good thing for defendants. On the contrary, many scholars and jurists believe that the court's new requirements may mean harsher, not more lenient, sentences. In his Blakely dissent, Justice Stephen Breyer predicted that the court's tack would likely force legislatures to codify "astronomically high sentences" to ensure that serious criminals still get the old maximum penalties. The first batch of post-Blakely law review literature echoes this view. Michael Goldsmith, a former member of the U.S. Sentencing Commission, which is responsible for shaping federal sentencing policy, writes in one article that the new schemes will have us wishing for "the good old days."

In such a world, defense advocates may need to turn to a different amendment for some relief. The Eighth Amendment, which prohibits "cruel and unusual punishment," may seem like the natural bulwark against truly "astronomical" sentences. But according to a forthcoming article by Youngjae Lee, defendants who invoke the Eighth Amendment may be surprised at what they find. In "The Constitutional Right Against Excessive Punishment," Lee explains that the court has lost its way in devising rules that evaluate when a punishment is fair and when it's excessive. "The answer that the Court has given us on this question over the past few decades is, to put it charitably, highly unsatisfactory and disappointing," she writes. "A body of law that is messy and complex, yet largely meaningless as a constraint."

Lee's primary example is the Supreme Court's recent ruling in Ewing v. California on that state's "three strikes" law. In upholding the life sentence of a man whose third strike was a conviction for shoplifting, Justice Sandra Day O'Connor wrote that the sentence was not excessive so long as the state believed that the punishment "advance[d] the goals of [its] criminal justice system." Lee argues that this vague caveat essentially permits states to justify their sentencing schemes with just about any rationale they please. If any theory of justice passes muster, then the court has essentially robbed itself of its ability to determine that one is out of line. Brigham Young University Law Review, Volume 2004, Number 3; Virginia Law Review, Volume 91, Number 3

CONFUSED CONSUMERS

Trademark law prohibits companies from using marks similar to existing ones because the similarities might confuse consumers. But the "likelihood to confuse" test has given trademark holders an incentive to argue that consumers are easily duped. As a result, trademark disputes often turn on the plaintiff's ability to convince a judge of the widespread stupidity of the American public.

Since no evidence of actual consumer confusion is required, those making the case for idiocy are often the victors. "What is it about trademark law that seems to elicit from courts such offensive and humiliating views of the citizenry?" asks Ann Bartow in a forthcoming article in the San Diego Law Review. Bartow has more faith in the hoi polloi. She proposes that the standard of proof in trademark disputes be changed so that all consumers are presumed to be "reasonably prudent."

Bartow points to several instances where judges have underestimated consumer savvy to the benefit of trademark holders. In one case, a judge decided it was better not to trust consumers to distinguish between "Toys-R-Us" and "Phones-R-Us."

Bartow is convincing when she argues that judges in trademark cases too often make their determinations based on little more than "gut reactions." She's less persuasive when it comes to proving that her "reasonably careful purchaser" standard is the answer. A presumption of prudence might make judges work harder to justify their findings, but it doesn't get at the root of the problem Bartow has identified: the lack of evidentiary requirements in trademark disputes. Consumers should be presumed to be reasonably careful—and anyone wishing to argue otherwise should be prepared to prove it. San Diego Law Review, Volume 41, Number 2

THE RIGHT TO ROOT

Last basketball season, University of Maryland students showed up at their January home matchup against Duke sporting T-shirts with the rude imperative "Fuck Duke." Administrators were aghast. The university rushed to develop a plan to "encourage students to cheer in nonoffensive ways." Though it was reserved as a "last resort," the plan allowed for formal punishment, including ejection from games, for students whose cheers strayed too far from traditionally nonoffensive ones like "Defense!" The policy relied heavily on a historical First Amendment argument that protects "captive auditors"—people who have no choice but to experience the offensive speech. Since not all Terrapin fans, to say nothing of any Blue Devils present, wanted to be privy to such foulmouthed sloganeering—whether on a T-shirt or shouted across the arena—the policy claimed to protect their right to avoid the profanity.

If enacted, argues law professor Howard M. Wasserman, such restrictions on "cheering speech" won't withstand First Amendment scrutiny. Whether the cheers are blatantly vulgar or not, they inherently constitute protected speech. In Cohen v. California (1971), the Supreme Court found that a jacket bearing the similar, if slightly weightier, directive "Fuck the Draft" was both in "message and manner" protected speech. Given this legacy, Wasserman argues that it is "inconceivable" that "'Fuck Duke' is

Maryland's best route, Wasserman suggests, is to skirt a constitutional crisis by advocating "creative witty cheers" and encouraging students to trade offensive T-shirts for less controversial garb, something students have already done. Adhering to the letter, if not the spirit, of the university's constitutionally questionable concerns, students printed up new shirts. Offensive speech? Nothing a little spoonerism can't solve: "Duck Fuke!" Journal of College and University Law, Volume 31, Number 2

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