Symposium Article Selected to Appear in Intellectual Property Law Review

An article published in volume 86 of the Tulane Law Review discussing the tension between trademark protections and licensing of the intellectual property of sports teams has been selected for publication in the annual Intellectual Property Law Review. In selecting From Dallas Cap to American Needleand Beyond: Antitrust Law's Limited Capacity to Stitch Consumer Harm from Professional Sports Club Trademark Monopolies by Professor Matthew J. Mitten, the Intellectual Property Law Review's Editor Karen B. Tripp noted that the article represented "one of the best law review articles related to intellectual property law published within the last year."

Professor Mitten wrote the article for the Review's symposium issue on sports and antitrust law issues. Specifically, Professor Mitten examined the United States Supreme Court decision of American Needle, Inc. v. NFL, and its impact on "increasing legal protection for sports team trademarks" and "collective exclusive licensing of professional sports team trademarks."[1. Matthew J. Mitten, From Dallas Cap to American Needle and Beyond: Antitrust Law's Limited Capacity to Stitch Consumer Harm from Professional Sports Club Trademark Monopolies, 86 Tul. L. Rev. 901 (2012).]

Ultimately, Professor Mitten concluded that extending trademark protection amounted to consumer harm, requiring "the collective granting of exclusive product category licenses . . . be invalidated under the quick-look rule of reason because this restraint has clear anticompetitive effects that are not necessary to achieve legitimate procompetitive justifications and/or which may be achieved by a substantially less restrictive alternative."[2. Id.]

The reprinting of Professor Mitten's Article will appear in the 2013 edition of the Intellectual Property Law Review. The full text is also available online via Westlaw, LexisNexis, and HeinOnline (links are available here.)

Article Published in the Review Selected for Professional Responsibility Award

An article published in Volume 86 of the Tulane Law Review analyzing the “boundary claim,” or the idea that lawyers must represent clients zealously but within the bounds of the law, was selected as the winner of the third annual Fred C. Zacharias Memorial Prize for Scholarship in Professional Responsibility. The Boundary Claim's Caveat: Lawyers and Confidentiality Exceptionalism, by University of Denver Professor Rebecca Aviel, centers on the asserted caveat to the "boundary claim": the legal profession's unwillingness to comply with the law if such compliance would result in a disclosure of client confidences. [1. Rebecca Aviel, The Boundary Claim's Caveat: Lawyers and Confidentiality Exceptionalism, 86 Tul. L. Rev. 1055 (2012 ).] The Fred C. Zacharias Memorial Prize for Scholarship in Professional Responsibility is a peer-reviewed competition, and the prize will be awarded at the 2013 annual meeting of the Association of American Law Schools.

Former Review Editor in Chief Cited in U.S. Supreme Court Writ

A Recent Development published in Volume 85 and penned by Kimberly Cheeseman, Editor in Chief of Volume 86 of the Tulane Law Review, was cited this month in a writ of certiorari to the United States Supreme Court. In the piece, Cheeseman analyzed the United States Court of Appeals for the Fifth Circuit's holding in Smith v. Xerox Corp. "that the mixed-motive framework applies to Title VII retaliation cases and a plaintiff can present circumstantial or direct evidence to obtain a mixed-motive jury instruction." [1. Kimberly Cheeseman, Recent Development, Smith v. Xerox Corp.: The Fifth Circuit Maintains Mixed-Motive Applicability in Title VII Retaliation Claims, 85 Tul. L. Rev. 1395, 1396 (2011).] The Fifth Circuit's analysis in Smith centered largely on whether the Supreme Court case Gross v. FBL Financial Services, Inc. applied to restrict the availability of a mixed-motive jury instruction in retaliation cases. [2. Smith v. Xerox Corp., 602 F.3d 320, 331-32 (5th Cir. 2010).] As noted by Cheeseman, the Fifth Circuit concluded that it did not because Gross dealt with the Age Discrimination in Employment Act. [3. Cheeseman, supra, note 1, at 1404-05.]

In the writ for certiorari in University of Texas Southwestern Medical Center v. Nassar, the question presented is whether the mixed-motive framework applies to Title VII retaliation claims, as the Fifth Circuit concluded, or whether the Supreme Court's reasoning in Gross applies to deny the framework to retaliation claims. [4. Petition for Writ of Certiorari, Univ. of Tex. Sw. Medical Center v. Nassar, No. 12-484 2012 WL 5195809, at *1 (U.S. Oct. 17, 2012).]

The petition notes that commentators acknowledge a circuit split with regard to the question presented. It cites to Cheeseman's piece as one such commentator, in support of its party's position that the Supreme Court resolve the issue. [5. Id. at 17 (citing Cheeseman, supra, note 1, at 1406) (noting that the Fifth Circuit's holding creates a split with the United States Court of Appeals for the Seventh Circuit's holding that Gross applied to retaliation claims).]

Cheeseman currently clerks for Judge Martin L.C. Feldman of the United States District Court for the Eastern District of Louisiana.

U.S. Supreme Court Hears Arguments in Affirmative Action Case Subject of Volume 86 Recent Development

On Oct. 10, the United States Supreme Court heard oral arguments in Fisher v. University of Texas at Austin, an affirmative action case out of the United States Court of Appeals for the Fifth Circuit that was the the subject of a Recent Development published in the Review last June. As the SCOTUSBlog noted, the Court will once again address the issue of affirmative action in higher education admission, specifically whether the Fifth Circuit properly interpreted the Equal Protection Clause and the Court's decision in Grutter v. Bollinger with regard to the university's use of race as a factor in its undergraduate admissions.[1. Fisher v. University of Texas at Austin, SCOTUSBlog, http://www.scotusblog.com/case-files/cases/fisher-v-university-of-texas-at-austin/ (last visited Oct. 9, 2012)]

Grutter v. Bollinger was a landmark case in which the Court upheld the affirmative action admissions policy of the University of Michigan Law School, holding that the school could pursue a "critical mass" of minority students provided that its admissions process weighed each applicant individually, rather than employing a quota system.[2. 539 U.S. 306, 308-09 (2003).]

Fisher was the subject of a Recent Development published in the Tulane Law Review penned by Articles Editor Kathleen McNearney. As McNearney explained in her piece, previous Supreme Court jurisprudence endorsed diversity as a compelling state interest and gave deference to schools to define and pursue critical mass. [2. Kathleen McNearney, Fisher v. University of Texas at Austin: The Fifth Circuit Questions Judicial Deference to Race-Conscious Admissions Policies in Higher Education, 86 Tul. L. Rev. 1373, 1381 (2012).]

"Therefore, the noted case emphasizes that universities only need comply with Grutter's requirement to conduct an individual, holistic review of the many factors in addition to race that applicants may bring to contribute to diversity," wrote McNearney, and the University of Texas at Austin's (UT's) admissions policy does take a holistic view of each of its applicants.[3. Id.]

However, what the Supreme Court will likely examine as it handles Fisher is to what extent UT implemented its race-conscious admissions policy to pursue more diversity despite its race-neutral alternative, the state of Texas' legislation mandating guaranteed enrollment to the top ten percent of each Texas high school's graduating class, resulting in increased minority enrollment.

Forbes Cites Review in Ongoing Debate on Stock Trading Tax

A Tulane Law Review article evaluating possible tax reforms in the wake of the financial crisis was cited by a Forbes article reporting on legislation intending to tax stock transactions. Forbes writes that Congressman Keith Ellison introduced a bill that would add a tax of 0.5 percent onto the sale of stocks, 0.1 percent on bonds and 0.005 percent on derivatives or other investments. "To put this in a buyer’s frame of mind, when an investor purchased $10,000 in stock shares, the financial transactions tax would tack on an additional $50," the article explains.

The bill is not without controversy, with similar legislation failing in the past and Forbes noting that such "Robin Hood" type taxes can backfire.

Forbes turned to Foolish Revenge or Shrewd Regulation? Financial-Industry Tax Law Reforms Proposed in the Wake of the Financial Crisis, a Comment authored by Review alumnus Richard T. Page, to explain why a financial transactions tax may not be beneficial.

In his Comment, Page wrote that taxes should discourage undesirable behavior. Taxes increase the cost of engaging in certain behaviors, explained Page, and because stock investment is a desirable behavior, it should not be discouraged.

Antiobesity Taxes, Subject of Upcoming Tulane Law Review Article, Making NPR Headlines

In her upcoming article in the Tulane Law Review, Professor Katherine Pratt of Loyola Law School Los Angeles will examine arguments that public health advocates have made in support of antiobesity soda and food taxes. In A Constructive Critique of Public Health Arguments for Antiobesity Soda Taxes and Food Taxes, Pratt examines the arguments urged in support of such antiobesity taxes, including that the government should recover some of the high health care costs associated with obesity by taxing its causes, and looks to tobacco taxes as an analogy. In critiquing this and other arguments in favor of antiobesity taxes, Pratt opines whether, in contemporary food consumer culture, an antiobesity tax would even be noticed, but ultimately suggests a way forward for such taxes.

Pratt's article will be published at a particularly salient time. This month, New York City mayor Michael Bloomberg announced a ban on soda drinks larger than sixteen ounces. As NPR notes, critics of the ban question whether it will have an affect on changing behaviors. Several of those interviewed by NPR are cited extensively in Pratt's upcoming article.

Author Slated for Publication in Volume 87 Writes Huffington Post Op-Ed on Marriage Alternatives

An author slated for publication in the upcoming February issue of Tulane Law Review recently wrote an opinion piece for the Huffington Post on the expansion of marriage equality for same-sex couples as well as the proliferation in European countries of marriage alternatives. Erez Aloni, a fellow for the Center for Reproductive Rights of Columbia Law School, wrote in the Huffington Post about the impending legalization of same-sex marriages in Scotland and France. The op-ed builds upon Aloni’s discussion in his forthcoming article Registering Relationships, in which he explores the viability of a state-recognized alternative to marriage: the “registered relationship.”

In the Huffington Post, Aloni observed that Scotland has legalized civil partnerships only for same-sex couples while France has legalized this alternative association for same-sex and heterosexual couples alike. Aloni opines that, should Scotland choose to mimic France, its expansion of recognized associations “could be the perfect solution for people in a trial cohabitation period, for the elderly who prefer to avoid a new marriage, and for those who want to eschew matrimony for whatever reason.”

This is a theme in Aloni’s upcoming Tulane Law Review article. In Registering Relationships, Aloni suggests that “registered partners”--couples who choose to sign and “deposit with the state registrar a contract defining the partners’ obligations and rights”--could be an alternative to marriage, “allow[ing] people to design the terms of their relationships, rather than imposing the one-size-fits-all structure of marriage.”

As the New York Times further explained in article on the topic, the idea of alternative marriage contracts have gained more and more attention recently. As the article notes, last year, Mexico City proposed a short-tern, renewable marriage contract to combat high divorce rates.

On September 12, 2012, Professor M. Isabel Medina spoke on Aloni's article at the Tulane Law Review's Footnote Series event. Here remarks are available here.

Tulane Law Review Alumus Cited by Eastern District

A Tulane Law Review comment written by Justin Woodard, TLS '11, has been cited by Chief Judge Sarah Vance in Checkpoint Fluidic Systems International, Ltd. v. Guccione (E.D. La. 2012). Woodard's comment, “Unnecessary To Address”?:  Tackling the Louisiana Supreme Court’s Open Question of Whether a Continuing Tort Can Suspend the Louisiana Unfair Trade Practices Act’s One-Year Peremptive Period, 85 Tul. L. Rev. 865 (2011), analyzed whether a continuing tort suspends the one-year peremptive period for claims brought under the Louisiana Unfair Trade Practices Act.

In this particular case—in which the plaintiff sued for violations of the Lanham Act, trademark infringement and dilution, false advertising, and various state law claims—the United States District Court of the Eastern District of Louisiana determined the Louisiana Unfair Trade Practices Act (LUTPA) was the most analogous state statute to the Lanham Act because both govern unfair competition.  The Lanham Act does not contain a federal statute of limitations, therefore courts look to the most appropriate or analogous state statute of limitations for guidance.  LUTPA provides for a one-year period to file suit beginning from the time of the act that gave rise to the cause of action, and Louisiana Courts of Appeal have held that this limitations period is peremptive.

The plaintiff in this case relied on the continuing tort doctrine to oppose summary judgment as to whether its Lanham Act was time-barred. The plaintiff contended that its claims were not perempted because the defendants engaged in a continuing tort, keeping the peremptive period from running.

Although the Louisiana Supreme Court has not decided whether the doctrine applies under LUTPA, Woodward’s article addresses this issue, and the District Court ultimately concluded in accordance with controlling precedent of the United States Court of Appeals for the Fifth Circuit that the doctrine applied to the state statute.

Woodard served as Editor in Chief of the Tulane Law Review from 2010 to 2011. He now clerks for a federal district judge in Charleston, South Carolina.

Announcing Volume 87 Members

Editor in Chief Andrew Kingsley

Senior Managing Editor Chris Hilton

Managing Editors Julie de Neufville Lauren Duxstad Jennifer Gisi Victoria Harrison Alex Landin Ali Lopez Kara McQueen-Borden Kate Rainey Dorian Thomas Brandt Tierney Max Weiss Erin West

Senior Notes & Comments Editor Paul Shelton Notes & Comments Editors Sami Aboulhosn Erin Bambrick Lucy Wolfe

Senior Associate Editor R. Harrison Golden

Associate Editor Paul Stevens

Symposium Editor Brian Hentosz

Online Editor Cassie Hewlings

Senior Articles Editor Lindsay Calhoun

Articles Editors Laurel Bernick Cassie Hewlings Katie McNearney Carly Miller Jason Remsen Sydney Roth Dorian Thomas Elliot Scharfenberg

Miles C. Babin Victoria Johnson Bagot Travis A. Beaton William  Bendetson Edward F. Bukaty Annalisa L. Cravens Brendan A. Curtin Lowell K. Dyer Eric M. Ferrante

Junior Members

Andrew  Gerow Evan  Gordon Liz Swingle Horn Ryan  Leske Valerie S. Lewis Liza R. Meltzer Jimmy Hix Miller Kathryn  Munson Sam E. Perrone Leslie Johns J. Ray Caitlin E. Sherrill

John Joseph Slater Colleen  Snow Emily J. Steinert Jessica M. Stricklin Anna C. Szatkowski Rebekka C. Veith Jennifer K. Watkins Molly L. Wells Rachel E. Wilson

Tulane Law Review Article Cited in Debate over Unsigned Opinions

The Tulane Law Review found itself at the forefront of a debate among legal scholars regarding the increased use of unsigned U.S. Supreme Court opinions ruling on the merits of a case, with the latest opinion reaffirming Citizens’ United v. Federal Election Commission. The New York Times penned the article in prelude as the Court mulled whether to review a case in which the Montana Supreme Court refused to follow the controversial precedent. See Western Tradition Partnership, Inc. v. Attorney General of the State of Montana, 271 P.3d 1 (Mont. 2011).

The Times cited to the Law Review's publication of Ira P. Robbins' "Hiding Behind the Cloak of Invisibility," published in Volume 86, Issue 6, expounding upon whether the Justices would employ the per curiam opinion to handle the decision.

In his article, Professor Robbins argues that the use of the per curiam, which has increased dramatically under the Roberts court, “is a misused practice that is at odds with the individualized nature of the American common law system, frustrating efforts to hold individual judges accountable and inhibiting the development of the law."

According to the Times article, Professor Robbins is not alone in sharing this sentiment.

Laura Krugman Ray, a law professor at the Widener University School of Law, believes any new challenge to Citizens United requires more than an unsigned opinion, given the far-reaching implications of the decision, according to the article.

The Supreme Court did not rise to Professor Ray’s suggestion, and shortly after the New York Times article ran, the Court issued a per curiam summarily reversing the Montana court. American Tradition Partnership v. Bullock, 132 S.Ct. 2490 (2012). Justice Breyer was joined by Justices Ginsburg, Sotomayor, and Kagan in dissent.

The Tulane Law Review would like to solicit responses to this latest Supreme Court decision, both the decision itself and the use of the per curiam opinion to effectuate it, in the light of Professor Robbins’ article on the subject.