Strix occidentalis caurina endangering a mousey.

The Ninth Circuit reversed a summary judgment that upheld the validity of a Fish & Wildlife Service statement on the "taking" of northern spotted owls "incidental" to timber operations on federal land in the Pacific Northwest.  The court concluded that the agency’s "Incidental Take Statement" didn’t comply with the Endangered Species Act.  Environmental groups hooted the owl’s distinctive whoop wu-hu hoo cry in support (not really).  Oregon Natural Resources Council v. Allen, No. 05-38530 (9th Cir. Feb. 16, 2007).

The writing of this post did not injure any animals.

Barry Barnett

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Justice Breyer supports matching judicial
pay to law professors’ compensation.

In Blawgletter’s adoptive hometown of Dallas, the local band of judicial candidate quality control inspectors asks aspiring lawyer-judges a brilliant question:  will winning the election give you a pay raise or a pay cut?  On the answer (with possible exceptions for public interest lawyers) hinges all.  Who wants a judge whose law practice hovers in the zone of insolvency?

Please understand that Blawgletter devoutly wishes judges, state and federal, to earn pay commensurate with their essential contributions to American self-government.  Smart, fair, and worry-free judges do immense good.  Blawgletter loves them.

But Blawgletter also believes, along with the Dallas quality-control squad, that the best judges don’t take the bench for money.  They don the black robe of objectivity because they like solving problems, feel passionately about justice, and admire the democratic wisdom of juries.

Do federal judges need a pay raise?  Absolutely.  Should the increase approximate what top private lawyers earn?  No way.  Chief Justice Roberts says they don’t even talk about "comparisons with the practicing bar anymore."  Good.

Barry Barnett

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ALI publishes Restatements of
the Law in several areas.

Blawgletter’s cheeks flushed when word came today that The American Law Institute elected a new crop of members.  They included us!  Hooray!! 

What does ALI do, you say?  Well, its 3,000 members — judges, lawyers, and teachers — meet annually and work throughout the year in groups on restatements of law, model codes, principles of law, and other projects.  The Institute also teams with the American Bar Association on continuing legal education programs as ALI-ABA. 

A founder of ALI, Benjamin Cardozo, explained the restatement idea in 1923:

When, finally, it goes out under the name and with the sanction of the Institute, after all this testing and retesting, it will be something less than a code and something more than a treatise. It will be invested with unique authority, not to command, but to persuade. It will embody a composite thought and speak a composite voice. Universities and bench and bar will have had a part in its creation. I have great faith in the power of such a restatement to unify our law.

Blawgletter feels so chipper and enthusiastic that we’ve already signed up to work on a project, Principles of the Law of Aggregate Litigation.  Happy happy joy joy.

Barry Barnett

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Starbucks takes it trademark seriously.

Today the Second Circuit vacated a judgment favoring a java shop that, over the objection of Starbucks, vended coffee under the name "Mister Charbucks".  The court instructed the district court to reconsider on remand whether to grant Starbucks an injunction under a recent amendment to the federal Trademark Dilution Act.  The statutory change lessened the necessary showing to "likely to cause to dilution" of the Starbucks trademark from "actual dilution".  Starbucks Corp. v. Wolfe’s Borough Coffee, Inc., No. 06-0435 (2d Cir. Feb. 15, 2007).

Blawgletter enjoys strong coffee and wishes our friends at Starbucks good luck in avoiding dilution.

We’ve reported today on cases involving coffee and cigarettes.  What next?  Beer, anyone?

Barry Barnett

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Doesn’t this guy know that smoking can
addict you?

Today the California Supreme Court answered questions that the Ninth Circuit certified to it in litigation over cigarette addiction.  The Court held that, for statute of limitations purposes on an economic loss claim, California law doesn’t presume the plaintiff’s knowledge of smoking’s addictiveness but does require the plaintiff to explain what delayed discovery of his addiction.  The Court also concluded that limitations doesn’t start running on a physical injury claim until the injury manifests itself.  The case now goes back to the Ninth Circuit.  Grisham v. Philip Morris U.S.A., Inc., No. S132772 (Cal. Feb. 15, 2007).   

Blawgletter doesn’t smoke cigarettes, but once upon a time — once upon several times — Blawgletter dipped snuff.  Very nasty.  Very.  Nasty.  Don’t recommend it.  Nosir.

Barry Barnett

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Canola oil comes from what?

The Federal Circuit today affirmed a summary and final judgment declaring two canola oil patents unenforceable and another two invalid.  In Cargill, Inc. v. Canbra Foods, Ltd., Nos. 2006-1265 & 2006-1302 (Fed. Cir. Feb. 14, 2007), the court found no error in the district court’s conclusions that Cargill engaged in inequitable conduct during prosecution of the first two patents (rendering them unenforceable) and that the on-sale bar doctrine applied to the other two (making them invalid).

The decision of course highlights the eternal mystery, for non-patent lawyers at least, between unenforceable patents and invalid ones.  But it also has interest for Blawgletter because it deals with another enigma — canola oil, bottles of which appear in the home pantry but whose labels do not disclose the oil’s origins.  Neither does the court’s opinion shed much light, mentioning without elaboration "Brassica seeds".

Thanks to Blawgletter’s mighty research department, we may now solve the puzzle.  The word "canola" comes from "Canadian oil, low acid", but the oil itself results from squishing of "rapeseed".  Blawgletter totally gets it.

Barry Barnett

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Blawgletter fell in love with simplicity long ago, and naturally we want to make finding us as simple as possible.  So now you can go straight to our location by typing "blawgletter.com" in the Address line of your browser and hitting Enter. 

The more adventurous of Blawgletter readers may want to try "blawgletter.biz", "blawgletter.net", or even "blawgletter.info".  They all should work.

Barry Barnett

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This morning, a class (er, "caucus"?) of Iowa consumers and businesses announced their settlement of an antitrust case against Microsoft, according to the NYT.  The class sought to recover overcharges of up to $453 million.  Iowa declined to accept its part of an earlier settlement and had started trying its case against Microsoft.  The en banc D.C. Circuit previously upheld a judgment against Microsoft for antitrust violations in the federal government’s civil case.  United States v. Microsoft Corp., 253 F.3d 34 (D.C. Cir. 2001) (per curiam).

Barry Barnett

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