Articles Posted in February, 2014


basketballJordan v. Jewel Food, US 7th Cir. (2/19/14)
Communications Law, Constitutional Law, Entertainment & Sports Law

When basketball legend Michael Jordan was inducted into the Naismith Memorial Basketball Hall of Fame in 2009, Sports Illustrated produced a special commemorative issue devoted exclusively to Jordan’s remarkable career. Jewel Foods was offered free advertising space in the issue for agreeing to stock the magazine in its 175 stores. Jewel submitted a full-page ad congratulating Jordan, which ran on the inside back cover of the commemorative issue. To Jordan the ad constituted a misappropriation of his identity for the supermarket chain’s commercial benefit. He sought $5 million in damages, alleging violations of the federal Lanham Act, the Illinois Right of Publicity Act, the Illinois deceptive-practices statute, and the common law of unfair competition. The district court accepted Jewel’s First Amendment defense, that its ad was “noncommercial” speech with full First Amendment protection.  The Seventh Circuit reversed and remanded. Jewel’s ad prominently featured the “Jewel-Osco” logo and marketing slogan, which were creatively and conspicuously linked to Jordan in the text of the ad’s congratulatory message. The ad was a form of image advertising aimed at promoting the Jewel-Osco brand; it was commercial speech and subject to the laws cited by Jordan.

Read More: Michael Jordan wins appeal in lawsuit against Jewel Food Stores

Ay v. Holder, US 2nd Cir. (2/20/14)
Immigration Law

Petitioner, a Kurdish ethnic and citizen of Turkey, sought review of the BIA’s order affirming the IJ’s denial of asylum, withholding of removal, and protection under the Convention Against Torture (CAT). The IJ concluded that on at least four or five occasions, petitioner gave food and, on at least one occasion, clothing, to individuals whom petitioner knew, or had reason to know, to be members of Kurdish terrorist groups. The BIA adopted the IJ’s findings and legal conclusions. The court found no error in the agency’s factual conclusion that petitioner provided material support to a terrorist organization. However, the court remanded in order to allow the BIA to address a precedential issue: whether the Immigration and Nationality Act, 8 U.S.C. 1182(a)(3)(B)(iv)(VI), should be construed to include a duress exception to the admissibility bar that the Act otherwise established for those who have provided material support to a terrorist organization. Accordingly, the court granted in part, denied in part, and remanded for further proceedings.

Posted in: Legal News


OklahomaHT to Professor Peter Martin who posts in his blog, Citing Legally, the news that, as of January 1, 2014, “sixty years after the Oklahoma Supreme Court designated the West Publishing Company as the ‘official publisher’ of its decisions, it [has] revoked that designation.”  Going forward, the electronic versions of Oklahoma appellate court decisions rendered after January 1st and posted on the State’s Court Network are now deemed “official.”  Read more of Professor Martin’s post here.  Way to go Oklahoma — You’re O-K!


T.S. v. Doe, US 6th Cir. (2/5/14)
Civil Rights, Constitutional Law, Criminal Law, Juvenile Law

handcuffsResponding to a report of underage drinking in a home, officers found a group celebrating eighth grade graduation. Police asked the teens to step outside individually for breathalyzer testing. Seven tested positive for alcohol. Police arrested them and notified their parents. In the morning, a juvenile worker arrived at the police station, and, after speaking with a judge, indicated that the children were to be detained for a court appearance the next day. At the regional juvenile detention center, the minors underwent routine fingerprinting, mug shots, and metal-detection screening. During a hygiene inspection and health screening, they were required to disrobe completely for visual inspection to detect “injuries, physical abnormalities, scars and body markings, ectoparasites, and general physical condition.” A same-sex youth worker observed the juveniles for several minutes from a distance of one to two feet, recording findings for review by an R.N.  The minors were required to shower with delousing shampoo. They were released the following day. The charges were dropped. In a suit under 42 U.S.C. 1983, the district court granted partial summary judgment in favor of the juveniles, based on a “clearly established right for both adults and juveniles to be free from strip searches absent individualized suspicion” that negated a qualified immunity defense. The Sixth Circuit reversed, stating that no clearly established principle of constitutional law forbids a juvenile detention center from implementing a generally applicable, suspicionless strip-search policy upon intake into the facility.

Read More: Sixth Circuit: Strip Search of Detained Juveniles Lawful

Posted in: Legal News



I’m a little bit behind on complaining about it, so here’s the executive summary to catch everyone up: One month after they celebrated 25 years of PACER, the whole thing went down, twice in one week.

In case you missed it, the Administrative Office of Courts issued a statement in December celebrating the twenty five year anniversary of PACER. The electronic filing service was started in 1988. It ushered in the era of electronic filing for federal court documents. To me, the irony of this “celebration” is that PACER, and the local CM/ECF systems, have barely changed since then.

As usual, the Third Branch PR team leads with how PACER has made access “universal.”

“Twenty-five years ago, the vast majority of cases were practically obscure. Today, every Third Branch court is using CM/ECF and PACER,” said Michel Ishakian, chief of staff for the AO’s Department of Program Services, who oversaw PACER from 2008 to 2013. “That means that all dockets, opinions, and case file documents can be accessed world-wide in real time, unless they are sealed or otherwise restricted for legal purposes. This level of transparency and access to a legal system is unprecedented and unparalleled.”

This is technically correct – but Mr. Ishakian neglects two caveats to this statement:

1. Users have to pay to access these documents. You pay to search for them, and you pay to download them.

2. The “opinions” available on PACER are slip opinions, not officially published case law. That means they can’t be cited in court.

Tagged: pacer, recap