Blawgletter’s old friend from Philadelphia says "ur" when she means "err".  Her noun form — "error" — comes out as "urur".  We suppose they teach it that way at Bryn Mawr.

Which cast us to wondering about human fallibility — specifically the kind that makes us credulous, trusting, gullible, trickable, defraudable fools.  What about our nature requires our susceptibility to deception?  Did dupability give our caveman ancestors an advantage over cynics in the battle for survival?  Did God design us to believe falsehoods?  Has your mind already started to wander?

Blawgletter imagines that trusting our fellows pays emotional and other dividends.  And some might say that we couldn’t function socially without accepting necessary myths.  But the most successful people we know — in the myriad ways we may define success — make the fewest big mistakes, especially ones involving the trustworthiness of other people. 

Or so we would have you believe.

Barry Barnett

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Blawgletter styles ourselves Business trial law with a sense of humor.  Judge for yourself by taking a gander at our favorite posts from this week:

Notice how many questions we ask?

We’d also like to give a shout out to Gretchen Sims Sween, an SG-Dallas alum who’s just started an Austin phase of her legal career at (Dechert LLP).  Confidential sources tell us that Ms. Sween can receive congratulations at gretchen.sween@dechert.com.

Barry Barnett

Feedicon_2 Round up our feed.  Hey-yah!

Blawgletter has read a lot lately about the current administration’s reverence for the rule of law.  Take the vice president as a for instance.  He’s claimed King’s X on oversight of how he handles top secret stuff.  The White House supports his position on the ground that "the president gets to decide" whether or not the rules applicable to everyone else in the executive branch also govern the veep and has decided that they don’t.

The freedom to exempt oneself from rules recalls an old American strain of political philosophy.  Its main exponent summed it up thus:

It is not desirable to cultivate a respect for the law, so much as for the right.  The only obligation which I have a right to assume is to do at any time what I think right.

Who said it?*

Barry Barnett

Feedicon There are more things in heaven and earth, Horatio, than are dreamt of in your philosophy.

*(9481) ecneidebosiD liviC, uaerohT divaD yrneH.

Will consumers of electric therapeutic massagers likely confuse the "Chi" brand with the "Chi Plus" brand?  Shockingly, the U.S. Patent and Trademark Office’s Trademark Trial and Appeal Board said nu-uh.  The Federal Circuit disagreed, holding yea-huh.  China Healthways Institute, Inc. v. Wang, No. 06-1464 (Fed. Cir. June 22, 2007).

Barry Barnett

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The D.C. Circuit today answered a question that it hadn’t addressed before — whether a grand jury witness has a right to read the transcript of his testimony in preparation for another appearance before the grand jury.  The court held that the witness does indeed have that right.  The court also mentioned that the district court may (or may not) allow the witness’s lawyer to accompany him to the transcript review.  And it distinguished the situation in which a witness asks for a take-home copy of the transcript.  In re Grand Jury, No. 06-3078 (D.C. Cir. June 22, 2007).

Barry Barnett

Feedicon14x14_2 New Barnett’s Notes coming soon!

Blawgletter predicts that yesterday’s decision in Tellabs, Inc. v. Makor Issues & Rights Ltd., No. 06-484 (U.S. June 21, 2007), will enhance the importance, and improve the quality, of story-telling in securities fraud pleadings. 

Tellabs turns on what Congress meant 12 years ago by "strong inference" of scienter in the Private Securities Litigation Reform Act.  The Court holds that the complaint as a whole must give "cogent" reasons for believing that the defendants meant to practice a fraud.  The nub of the decision:  From now on, lower courts have to infer whatever the complaint plausibly implies — including innocent intentions.

The job looks to Blawgletter like what we do when reading a newspaper.  Stories saying that so-and-so "is confident about" or "believes" such-and-such irritates us because they state a conclusion about someone’s state of mind.  Blawgletter wants to know the facts — what did the person do and say, for example?  What did she have to gain or lose?  Had she lied before?  We’ll draw our own inferences, thank you very much.

But we must also confess that a good story eases our irritation.  A good story in fact leads the reader to the conclusion himself, making it more palatable.

Tellabs also recalls to Blawgletter something we learned in the first year of law school.  Arthur Miller gave us the background on adoption in the 1930s of the Federal Rules of Civil Procedure, particularly the new method they created for "notice pleading".  Professor Miller mentioned that many and complex requirements, sub-requirements, and exceptions had sprung up in pleading practice, setting many traps and elevating the form over the substance.  Tellabs strikes us as a tug back to that earlier time.  Also Twombly, which set new rules for pleading antitrust conspiracies.

Barry Barnett

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Today the Federal Circuit rebuffed an attempt to require oyster growers to litigate, in the U.S. Court of Federal Claims, tort claims against private dredgers for damaging the oyster habitat.  The district court, in Galveston, Texas, concluded that it lacked jurisdiction and ordered transfer of the case to the Court of Federal Claims.  The Federal Circuit reversed on both points.  Fisherman’s Harvest, Inc. v. PBS & J, No. 06-1208 (Fed. Cir. June 21, 2007).

Barry Barnett

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Does a compilation of info on purchasable yachts deserve copyright protection? 

If it does, what standard governs the infringement question — "substantial similarity" between the compilation and the defendant’s work or "virtual identicality"?

The Eleventh Circuit today affirmed a post-verdict judgment for the yacht info compiler.  The court answered the first question "yes" and the second one with "substantial similarity".  BUC Int’l Corp. v. Int’l Yacht Council Ltd., No. 04-13653 (11th Cir. June 21, 2007).

The decision holds some interest in that it grapples with the lesser protection that compilations often get under U.S. copyright law.  Because a compilation lots of times just assembles data — think of a phone book — it requires less creativity than other works do.  Courts recognize the relative lack of originality by demanding more similarity, in some instances even calling for "identicality".

The court held that the yacht compilation displayed enough creative spark to warrant more protection.  So it rejected the defendant’s argument that the "virtual identicality" test applied.

Barry Barnett

Feedicon14x14 Sailing, sailing, over the bounding main.

Orphanannie
Orphan Annie — clever
girl — knew that "tomorrow
is just a day away."

As our friends at www.scotusblog.com remind us, the U.S. Supreme Court will issue opinions tomorrow, June 21.  The Court has but one more opportunity to finish its opinion-issuing work this Term — on Monday, June 25.  So what can we expect in the morn at 10:00 Eastern?

Blawgletter speculates that we’ll get a decision in one, but not both, of the Term’s two remaining hot business law cases:  the first involving antitrust — Leegin Creative Leather Products v. PSKS, Inc., No. 06-480 (per se liability for minimum resale price maintenance) — and the other relating to securities — Tellabs, Inc. v. Makor Issues & Rights Ltd., No. 06-484 (requirements for "strong inference" of fraudulent intent).

We can’t claim any scientific basis for our guess, but boy we do enjoy supposing stuff.  So we’ll go further and predict that we’ll hear about Tellabs on Thursday and Leegin on Monday.  Wading into ever-deeper waters, we’ll also foretell that Tellabs will turn not on interpretation of the Private Securities Litigation Reform Act as much as on the Court’s regard (or disregard) for the seventh amendment right to jury trial.  Plus that Leegin will adopt, 5-4, Chicago-style economic analysis.

Barry Barnett

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