First Amendment - Anti-SLAPP - California Constitution - grpub.net

First Amendment

DRM Puts the Brakes on Innovation - January 16, 2018 - Elliot Harmon
We're taking part in Copyright Week, a series of actions and discussions supporting key principles that should guide copyright policy. Every day this week, various groups are taking on different elements of copyright law and policy, and addressing what's at stake, and what we need to do to make sure that copyright promotes creativity and innovation. Copyright law is slow. Whenever you hear about a case of alleged copyright infringement and you think, “What was illegal about this?” consider that the law probably came many, many years before anyone conceived of the activity it’s being used to target. Then it starts to make a little bit more sense. Look at how U.S. copyright law treats DRM, the annoying array of methods that digital content providers use to restrict their customers’ behavior. Passed in 1998, Section 1201 of the Digital Millennium Copyright Act made it illegal to bypass DRM or give others the means of doing so. When Congress passed…
Please enjoy the latest edition of Short Circuit, a weekly feature from the Institute for Justice. Over at the estimable EconTalk podcast, IJ's own Dick Carpenter discusses bottleneckers, who agitate for occupational licensing and other regulations that make earning an honest living needlessly difficult. Click here to give it a listen. Five commercial truck drivers cited for safety violations sue the feds, whose trucker database includes the citations but not the subsequent acquittals and dismissals of the same. Truckers: The feds won't update the dated data, hurting our job prospects. District court: Cannae sue over that. D.C. Circuit: Two of the drivers can, as their records were shared with potential employers. The other three have not been harmed because the feds haven't shared their data. Baltimore officials pass ordinance requiring clinics that provide free pregnancy-related services—but not abortions or abortion referrals—to post signs in their…
Real ‘Fake News’ and Fake ‘Fake News’ - January 16, 2018 - Joe Hodnicki
Here’s the abstract for Lili Levi’s Real “Fake News” and Fake “Fake News,” 16 First Amend. L. Rev., Forthcoming: “Fake news” has become the central inflammatory charge in media discourse in the United States since the 2016 presidential contest. In the political realm, both intentionally fabricated information and the “fake news” defense by politicians confronted with negative press reports can potentially influence public beliefs and possibly even skew electoral results. Perhaps even more insidiously, as evidenced by President Trump’s dismissal of the traditional press as the “enemy of the American people,” the “fake news” accusation can serve as a power-shifting governance mechanism to delegitimize the institutional press as a whole. Both these strategic uses of “fake news”—to achieve specific political results and to destabilize the press as an institution—are…
A “membership requirements” survey emailed to the state’s lawyers last week by the Chief Justice of the Arizona Supreme Court features an unprecedented argument. Acknowledging that “some lawyers argue there should be an exception” to mandatory membership in the State Bar of Arizona, the introduction to the survey asserts “One argument is that some lawyers hold a ‘firm, fixed and sincere ethical, religious or moral objection’ to being required to be a member of the State Bar and should be able to opt out as a non-member attorney (NMA).”¹ As proposed, lawyers opting out of joining the Bar and funding its full freight of regulatory and non-regulatory trade association services would be required to personally swear or affirm in writing to “a firm, fixed, and sincere ethical, religious or moral objection” to Bar membership. It’s not clear who would determine the adequacy of the affidavits or how often…
Dr. King, Trump, and Dignity - January 15, 2018
by Michael DorfIn past years, I have marked the birthday of the Rev. Dr. Martin Luther King Jr. by discussing his oratory or noting the importance of the recognition of the day as an official holiday. This year I want to reflect on what an official celebration of King's anti-racist legacy means when we have a racist president. I'll use Trump's description of Haiti, El Salvador, and African nations as "shithole countries" as my jumping-off point, turning back to Dr. King at the end of this essay.Here is what we did not learn from this latest outrage:** Donald Trump is a racist. We didn't learn that, because it was already clear from so much of Trump's past words and deeds that he is a racist. Not clear to everyone, mind you, but as a friend of mine put it on Facebook, if you still don't think Trump is a racist, that's because you are a racist yourself.** Donald Trump is a liar. Trump has sort of denied using the language in…
When to Raise Your Rates - January 15, 2018 - Ruth Carter
How do you make more money? The two obvious ways are work more hours or charge more money. Toward the end of last year, I was debating whether I should raise my rates and, if so, by how much. I had not raised my rates for client work in three years. My goals were to stay relatively affordable and to select a rate that reflected the value I brought to my clients. What Does My Competition Charge? I started by attempting to take a look at my competition’s rates. Lawyers’ rates generally are not public knowledge. We don’t post them on our websites. Prospective clients can’t compare prices like they would with products in a store or on Amazon. However, every three years, my state bar does a survey on what lawyers charge and asks respondents for their practice areas, hourly rate, firm size, and the county where they practice. The results of this survey were particularly helpful when I was first starting out. Unfortunately, the most recent results left much to…

Anti-SLAPP

Despite its name, a statute designed to deter strategic lawsuits against public participation (SLAPP) has been applied to a variety of private disputes, including probate proceedings, as a recent decision illustrates. Under the so-called anti-SLAPP statute (CC §425.16(b)(1)), a cause of action “arising from any act in furtherance of a person’s right to petition in connection with a public issue” is subject to a special motion to strike. In Urick v Urick (2017) 15 CA5th 1182, the trustee filed a petition to reform the trust to eliminate distributions to a beneficiary. The trustee claimed that the trust document didn’t reflect the settlor’s intent. The beneficiary in turn petitioned for instructions that the trustee’s petition for reformation violated the trust’s no contest clause. The trial court granted the trustee’s motion to strike the beneficiary’s petition under the anti-SLAPP statute. But the appellate court…
Despite its name, a statute designed to deter strategic lawsuits against public participation (SLAPP) has been applied to a variety of private disputes, including probate proceedings, as a recent decision illustrates. Under the so-called anti-SLAPP statute (CC §425.16(b)(1)), a cause of action “arising from any act in furtherance of a person’s right to petition in connection with a public issue” is subject to a special motion to strike. In Urick v Urick (2017) 15 CA5th 1182, the trustee filed a petition to reform the trust to eliminate distributions to a beneficiary. The trustee claimed that the trust document didn’t reflect the settlor’s intent. The beneficiary in turn petitioned for instructions that the trustee’s petition for reformation violated the trust’s no contest clause. The trial court granted the trustee’s motion to strike the beneficiary’s petition under the anti-SLAPP statute. But the appellate court…
December 2017 Law Faculty Publications & News - January 8, 2018 - Matthew Scott Johnson
Throughout December, the Law Library received alerts for full-time TTU Law Faculty publications and news. Below is a compilation of those daily alerts for December 1 to December 31, 2017. Books: 1. Gerry W. Beyer, PROBATE AND DECEDENT’S ESTATES (17 & 18 Tex. Prac. 2017-2018 Supp.). 2. Gerry W. Beyer, MARITAL PROPERTY AND HOMESTEADS (38 & 39 Tex. Prac. 2017-2018 Supp.). Op-Ed: 1. Arnold Loewy & Charles Moster, It’s Debatable: Are college football coaches overpaid?, LUBBOCK AVALANCHE-J. (Dec. 1, 2017 08:15 pm), http://lubbockonline.com/opinion/opinion-columnists/2017-12-01/it-s-debatable-should-mueller-be-fired-special-counsel. 2. Arnold Loewy & Charles Moster, It’s Debatable: Should death penalty be used more often?, LUBBOCK AVALANCHE-J. (Dec. 15, 2017 09:12 pm), http://lubbockonline.com/opinion/opinion-columnists/2017-12-15/it-s-debatable-should-death-penalty-be-used-more-often. 3. Arnold Loewy & Charles Moster, It’s Debatable: Should…
*New Case Law A Strategic Lawsuit Against Public Participation (or “SLAPP”) is a lawsuit brought to prevent or punish someone for exercising their First Amendment right to speak about public issues or to petition the government. In response to this abuse of the court system, California enacted Code of Civil Procedure Section 425.16, known as the “anti-SLAPP” statute. It allows a defendant against whom a SLAPP is brought to file a special motion to strike and, if granted, have the case dismissed and also recover his attorney’s fees. In recent years we have seen situations where the anti-SLAPP statute has been triggered in homeowners association (“HOA”) disputes (i.e., statements made in connection with HOA Board elections).  The 2017 case of Colyear v. Rolling Hills Community Association of Rancho Palos Verdes (9 Cal.App.5th 119) (Rolling Hills) is another example. In Rolling Hills, the defendant homeowner, Liu, submitted an…
It's been over ten years since Alan v. American Honda (2007) 40 Cal.4th 894, but many lawyers still haven't gotten the message that a "notice of ruling" does not equate with a "notice of entry" under rule 8.104 (to trigger the time to appeal). Examples abound, with two in a row last week, here (pp. 5-6) and here (p. 3, fn.1).Also of note from last week, this 9th Cir. opinion here about anti-SLAPP appealability.And see The Great Reshaping: How Trump is Changing the Game on Judicial Nominations: With 148 judicial vacancies as of Jan. 2 and an increasingly aging federal bench, President Donald Trump could remake the federal judiciary on a scale that hasn’t been possible in decades.
Year In Review, 2017. - December 29, 2017
Books Read (in order)1. Influence: The Psychology of Persuasion by Robert B. Cialdini, Ph.D. (2007 rev ed.)2. A Life in Parts by Bryan Cranston (2016)3. The Small Big: Small Changes That Spark Big Influence by Steve J. Martin, Noah J. Goldstein and Robert B. Cialdini (2014)4. Thinking, Fast and Slow by Daniel Kahneman (2011) [cd unabridged]5. The Subtle Art of Not Giving A #%[email protected]: A Counterintuitive Approach to Living a Good Life by Mark Manson (2016)6. Blood Meridian by Cormac McCarthy (1985) [cd unabridged]7. The Kingdom of Speech by Tom Wolfe (2016)8. Life Is a Series of Presentations by Tony Jeary with Kim Dower and J.E. Fishman (2003) [cd unabridged]9. The Magnolia Story by Chip and Joanna Gaines with Mark Dagostino (2016)10. Survival in the Killing Fields by Haing S. Ngor with Roger Warner (1987)11. Filthy Rich: - The Shocking True Story of Jeffrey Epstein by James Patterson and John Connolly with Tim Malloy (2016) [cd unabridged]12. A Perfect Union of Contrary…

California Constitution

On my recent trip to Oakland, CA—where the temperatures were much more pleasant than in freezing Washington, D.C.—I took a walk around the beautiful Lake Merritt. Protected under the California Wildlife Act of 1870, Lake Merritt is the oldest designated wildlife refuge in the United States. Across the water, you can see the Alameda County Courthouse, which is one of the fifty-eight superior courts (trial courts) in California. Alameda County Courthouse as seen from across Lake Merritt. Photo by Jenny Gesley Prior to June 1998, California’s trial courts consisted of superior courts and municipal courts as provided for in the California Constitution. Municipal courts handled misdemeanors and infractions and most civil lawsuits involving disputes of $25,000 or less, whereas superior courts were in charge of all other matters. In June 1998, California voters approved Proposition 220, which amended the California Constitution to…
First District, Division TwoJudge Alison Tucher, of the Superior Court of California, County of  Alameda, will be sitting Pro Tem in Division Two through March 30, 2018.Also, fyi, the Supremes are seeking a Court of Appeal Justice to serve on the CJP:The Supreme Court is requesting nominations for appointment of a Court of Appeal justice to the Commission on Judicial Performance for a four-year term commencing April 1, 2018. Pursuant to California Constitution, article VI, section 8, the Supreme Court of California appoints the three judicial members of the Commission on Judicial Performance for four-year terms. Members can be reappointed but cannot serve more than ten years.The 2d District has changed the hours for its Clinic:Change of Hours for the Free Self-Help Clinic for Indigent Civil LitigantsWednesday, January 24, 1:00 – 4:30 p.m.Wednesday, January 31, Closed.Thursday, February 1, 9:00 a.m. – 12:00 noon and 1:30 – 4:30…
Medical Privacy Under Attack: 2017 in Review - December 24, 2017 - Jamie Williams
If you care about maintaining privacy over medical records and prescriptions, this was not a good year. Both the California Supreme Court and the U.S. Ninth Circuit Court of Appeals issued disappointing decisions that declined to recognize a significant privacy interest in prescription records. In California, the state’s high court ruled that the Medical Board of California can rifle through records of prescriptions for controlled substances—used to treat anxiety, depression, pain, and insomnia—without notifying patients, obtaining a court order, or showing any suspicion of wrongdoing. The Ninth Circuit reversed on procedural grounds a good ruling out of Oregon, which found that the Drug Enforcement Administration (DEA) couldn’t access sensitive prescription records without a warrant. Both courts punted to another day the question of whether the Fourth Amendment’s warrant requirement protects prescription records. This precedent is concerning,…
V.A., a high school senior who plays football and basketball on the San Pasqual Valley High School teams, decided to kneel during the National Anthem at two recent high school games. The School District responded a policy stating, Students and coaches shall stand and remove hats/helmets and remain standing during the playing or singing of the national anthem. Kneeling, sitting or similar forms of political protest are not permitted during athletic events at any home or away games. Violations may result in removal from the team and subsequent teams during the school year. V.A. sought a temporary restraining order to bar the policy from being enforced at two basketball games, Tuesday night and today; and on Tuesday the court granted the order, which will last until the preliminary injunction hearing next Tuesday. The school defendants declined to file papers or appear at the oral argument opposing the TRO (though they will presumably respond as to the longer-term preliminary…
Yesterday, the 274th day since Justice Kathryn Werdegar announced her retirement, the Supreme Court released its January calendar.  There will be eight more pro tem justices, necessitated by Governor Jerry Brown not having appointed Werdegar’s replacement yet.  (Using a mostly alphabetical selection system, only half of the January pro tem justices have been assigned at this point.) It will be the fifth month in a row that the court has had to call on Court of Appeal justices to fill in.  By comparison, there were seven calendars with pro tems before Governor Brown named Justice Leondra Kruger in 2014 to fill retiring Justice Joyce Kennard’s seat, although Justice Kennard gave shorter notice of her retirement than did Justice Werdegar. On January 3 and 4, in San Francisco, the court will hear the following cases (with the issue presented as stated on the court’s website): Regents of the University of California v. Superior Court:  Do…
After a long (and happy) holiday break, it's sometimes nice to come back to unanimous decisions by the California Supreme Court that don't require you to do anything more than read the first paragraph of the opinion.  What's easier than that?So, sure, you could read the subsequent twenty pages.  As I did.  But why bother?  There's no dissent, and all you'd get is the Court's reasoning.  Which is important, to be sure.  And worthwhile.But as for just knowing the rule, yeah, you can stop after a single paragraph:"Section 632 of the Code of Civil Procedure1 provides that “upon the trial of a question of fact by the court,” the court “shall issue a statement of decision explaining the factual and legal basis for its decision as to each of the principal controverted issues at trial upon the request of any party appearing at the trial.” We granted review in this case to decide whether a…