"Nota Bene" means "note this well" or "take particular notice." We at the O'Quinn Law Library will be posting tips on legal research techniques and resources, developments in the world of legal information, happenings at the Law Library, and legal news reports that deserve your particular attention. We look forward to sharing our thoughts and findings and to hearing from you.

N.B: Make a note to visit "Nota Bene" regularly.

-Spencer L. Simons, former Director, O'Quinn Law Library and Associate Professor of Law



Thursday, March 28, 2013

The Parallel Import and the “First Sale” Doctrine Survive, For Now

American libraries celebrated a legal victory last week in the Supreme Court’s disposition of Kirtsaeng v. John Wiley & Sons.  The Court ruled that the appellant’s legal purchase of inexpensive books in Thailand and resale of the same books in the United States at a higher price, a form of arbitrage known as a parallel import, is protected  under the “first sale” doctrine: the principle that someone who purchases a single copy of a copyrighted work owns that one copy and may resell it or give it away without needing permission from the copyright holder.
The libraries’ celebration may be premature.  Since 2010, the United States has been engaged in multilateral negotiations to form the Trans-Pacific Partnership (TPP), a proposed free trade zone for Pacific Rim nations.  Among other things, the TPP proposes a new intellectual property regime that would effectively nullify the Kirtsaeng ruling by banning parallel imports and severely restricting the “first sale” doctrine.  Of further concern to libraries are several other items under negotiation that have the potential to rewrite substantial portions of U.S. and international intellectual property law.
The nations participating in the ongoing TPP negotiations appear to be in some disagreement over the final form of any intellectual property provisions, but are very likely to revisit the issue in the 17th round of TPP negotiations this May 15-24.  Anyone interested in intellectual property law might want to consider following these negotiations.

Friday, March 22, 2013

Equal Rights Amendment Anniversary

On this day, in 1972, the Equal Rights Amendment was approved by Congress and sent to the states for ratification. The National Constitution Center has a very interesting blog post that talks about this proposed amendment to the U.S. Constitution, as well as three other proposed amendments that came (relatively) close to being ratified:

  • The Titles of Nobility Amendment: Sometimes referred to as "the missing 13th Amendment", this proposed amendment, originally approved by Congress in 1810 and technically still open for ratification (ala the 27th Amendment), came the closest of any to being ratified without succeeding, at one point needing just one more state for ratification!

  • The Child Labor Amendment: This proposed amendment, approved by Congress in 1924, would have explicitly given Congress the "power to limit, regulate, and prohibit the labor of persons under eighteen years of age." The amendment was proposed in response to U.S. Supreme Court decisions that found unconstitutional some earlier attempts by Congress to deal with child labor. Technically, this proposal is still susceptible to ratification and has been ratified by 28 states. Many have argued that the enactment of the Fair Labor Standards Act of 1938, ch. 676, 52 Stat. 1060 (codified as amended at 29 U.S.C. § 201-19 (2006)) made this amendment unnecessary. I mean, what are the chances we'll ever have a pro-business Congress and a pro-business President at the same time that would be capable of weakening (if not outright repealing) this legislative act?! Right? For an interesting discussion of this proposed amendment and its relationship to President Roosevelt's infamous court-packing plan, see Gerard N. Magliocca, "Court-Packing and the Child Labor Amendment", 27 Const. Commentary 455 (2011).

  • The District of Columbia Voting Rights Amendment:
  • This proposed amendment, approved by Congress in 1978 but subject to a seven-year deadline for state ratifications, could only muster the support of 16 states before the approval period expired. For an interesting summary and analysis of this proposed amendment, including arguments for and against ratification, see Background Paper 79-3, prepared by the Research Division of the Nevada Legislative Counsel Bureau.

For additional information on the Equal Rights Amendment, inluding an overview and history of the amendment, see EqualRightsAmendment.org.

Wednesday, March 20, 2013

Why Do Some States Even Have Governors?

Recently, the state of Arkansas made headlines across the nation when they overrode a governor's veto to enact the tightest abortion restrictions in the country (at that time). Most of the news, deservedly so, focused on the content of the new act. What caught my eye, however, was how easy it was for the Arkansas legislature to override a veto: a mere simple majority of both houses is required!

If that's all it takes, why even involve a governor in the process?!

But Arkansas isn't alone. Five other states do not require at least three-fifths of each house to override a veto: Alabama, Indiana, Kentucky, Tennessee, and West Virginia. All of these require simply a majority of those elected in each house to override a veto. To be fair, although most states require at least three-fifths of legislators elected to override a veto, several states require two-thirds or three-fifths of the members present to do so, which, when coupled with a quorum requirement of a majority of those elected, means that a veto theoretically could be overridden with the approval of as little as one-third (plus one) of the elected legislature. But these states that require a simple majority of those elected in each house to override a veto (with the exception of Kentucky), also require a simple majority of those elected in each house to pass a bill to begin with! (Kentucky requires a majority of those present, provided that that majority is at least two-fifths of the number elected, in order to pass a bill (see Ky. Const. sec. 46), so requiring a majority of those elected to override a veto theoretically can make a difference.)

Now to be exact, the Arkansas Constitution requires "a majority of the whole number elected" of each house to override a veto (see Ark. Const. art. 6, sec. 15). But section 22 of Article 5 of the Arkansas Constitution states that, before being sent to the governor for his consideration, "no bill shall [be passed] unless . . . a majority of each house be recorded thereon as voting in its favor." The question becomes: Is the "majority" mentioned in Art. 5, sec. 22, a majority of those present or of those elected? According to the Supreme Court of Arkansas, this section requires a majority of those elected (see Smith v. Ridgeview Baptist Church, 514 S.W.2d 717, 718 (1974)). In other words, just like all of the other states that require a simple majority to override a veto (with the exception of Kentucky), that number needed to override is the exact same number required to pass a bill in the first place!

On paper, as the title of this post suggests, the presence of an executive in the legislative process seems superfluous in these states. One would think that, if 50% plus 1 of each house of a state's legislature is needed to pass a bill, and the same number is needed to override a veto, then a governor's veto should never be successful. But that is not the case. In Arkansas, Governor Mike Beebe, since taking office in 2007, has issued eleven vetoes (not counting one line item veto). Of those vetoes, only the two most recent ones involving extreme restrictions on abortion rights (HB 1037 and SB 134) were overridden by the legislature, and even then, both bills lost votes between the two stages!

I guess it's due to the fickle nature of politics that these states maintain an executive presence in the legislative process.

Friday, March 15, 2013

Advances in Texas Beer Law?


Though it is difficult to keep up with the over 3,000 bills filed in both the Texas House (987 bills) and Senate (2,369 bills) this legislative session, fans of craft beer and brewing should pay attention to Senate Bills 515, 516, 517, and 518. These bills propose to change Texas law governing the sale and distribution of craft beer in Texas. According to an economic impact study released by the Texas Craft Brewers Guild last year, small, independently owned craft breweries had a $608 million economic impact on the state in 2011 alone. Groups like the Texas Craft Brewers Guild are backing changes to Texas law that would allow small brewpubs and breweries to manufacture and distribute their product to consumers more direcetly. Here’s an overview of how the bills, if passed, would change the current law regulating Texas breweries and brewpubs, including Houston’s own popular Saint Arnold’s Brewing Company:

Senate Bill 515: This bill would increase the annual limit on a brewpub’s total annual production of malt liquor, beer, or ale to 12,500 barrels, from the current 5,000. The bill also limits the amount that the brewpub may self-distribute (rather than sell through a beer distributor) to 1,000 barrels per year. 

Senate Bill 516 and Senate Bill 517: These bills would amend the Texas Alcoholic Beverage Code  to allow a brewer/manufacturer to produce up to 125,000 barrels (from the current 75,000) total of both beer and ale. The amount of ale that a manufacturer/brewer could self-distribute (as opposed to going through a distributor) would be limited to 40,000 barrels annually. 

Senate Bill 518: As small craft brewers are currently prohibited from making sales directly to consumers S.B. 518 would allow small brewers (who produce less than 225,000 barrels of beer annually) to devote a small amount of their annual production limit for direct sales to consumers. Sales to consumers will be dedicated for responsible, on-premise consumption and could not exceed 5,000 barrels annually. 

If you’re a Texas beer connoisseur interested in following these bills as they move through the legislature, set up bill tracking alerts through MyTLO at http://www.capitol.state.tx.us/MnuMyTLO.aspx.  Once you have set-up an account and selected the bills you want to track, you will receive an email when actions are taken on the bill. You can also view the committee hearings on these beer bills that took place earlier this week, visit the Senate Committee on Business and Commerce site at: http://www.senate.state.tx.us/75r/senate/commit/c510/c510.htm.  Then, click to view the video archives for March 12, 2013- the date the hearings took place.

Tuesday, March 12, 2013

Changes to the Bar Exam Coming in 2015


Current 1L students, or anyone planning to take the Texas (or another state's) Bar Exam in 2015 or after ought to pay close attention in their Federal Civil Procedure courses. Beginning with the February 2105 exam, the Multistate Bar Exam will add Federal civil procedure to the list of subjects tested. Every jurisdiction, with the exception of Louisiana, uses the Multistate Bar Exam (MBE) as part of their examination of attorney hopefuls. Currently, the MBE covers constitutional law, contracts, criminal law, evidence, real property, and torts. For the current 200 question test, 190 of the questions are scored, with 31 to 33 questions devoted to each subject. Test takers have three hours to complete the first 100 questions, and after a break, another three hours to answer the remaining one hundred questions. In Texas, the MBE is administered on the second day of the bar exam, with the first day devoted to the Multistate Performance Test, as well as the Texas Procedure and Evidence Exam. On the third day, Texas bar examinees answer twelve essay questions on topics including business associations, trusts and guardianships, wills, family law, consumer law, and real property.  The addition of federal civil procedure questions will not add to the length of the test, instead the number of questions for each subject will decrease slightly, to 28 questions on contracts, and 27 questions on the other subjects.

 The institution that writes and administers the MBE, the National Conference of Bar Examiners (NCBE), was formed in 1931. Created at behest of the American Bar Association’s Section of Legal Education and Admissions to the Bar, during a time when the ABA was seeking uniformity among state standards for admitting new lawyers, the NCBE was formed with the aim of applying reasonable and uniform standards of education and character for eligibility for admission to the practice of law. Today, the NCBE is responsible for producing not only the Multistate Bar Exam, but also the Multistate Essay Exam (used by about ½ of U.S. jurisdictions), the Multistate Performance Test, and the Multistate Professional Responsibility Exam. The NCBE has also created the Uniform Bar Exam, which includes the Multistate Performance Test, Multistate Essay Exam, and Multistate Bar Exam. The Uniform Bar Exam has been adopted by thirteen jurisdictions.  

Though some have complained that the change to add federal civil procedure to the MBE will result in double-testing of the subject, this does not appear to be a problem for Texas bar examinees. The Multistate Essay Exam, which Texas does not administer in lieu of its own essay questions, already includes federal civil procedure as a potential essay topic. The Multistate Essay Exam will be used by thirty states and U.S. territories by 2014, but there is no evidence that Texas will be joining those ranks anytime soon. Currently, federal civil procedure is not listed as a test topic in the appendix to the Texas bar exam rules (Appendix A- Texas Bar Exam Subjects). Instead, Federal criminal procedure, Texas criminal procedure, and Texas civil procedure are the only topics listed for testing as part of the Texas Procedure and Evidence Exam.

While there is no doubt that the various bar preparation companies will do their best to prepare students taking the bar exam in 2015 and beyond for this addition to the MBE, students beginning their law school careers may want to devote even more attention to the notoriously complex first year course.

Thursday, March 7, 2013

Lexology



Information overload is real, but is only a problem because most people get too much information from the wrong sources. Getting information from the right sources is often half the battle. 

If you are looking for smart and informative stories on current events and trends in the business world from a legal angle then try out the web site called Lexology.  Lexology is sponsored by the Association of Corporate Counsel and it provides articles written by practicing attorneys. These articles are usually posted on law firm’s web sites as marketing tools or simply to keep clients informed. The articles available on Lexology are targeted at business lawyers and cover a variety of issues. An article may focus on a recent case decision and a discussion of the implications of the court’s ruling.  Another article may highlight a new piece of legislation or a new rule and how each will be implemented and what steps affected parties (i.e. Clients) can take to comply with the new law. Still another may simply be a news story often with an explanation from a legal viewpoint.  

The site is searchable by keyword, jurisdiction, practice area, and firm and also allows arranging results by most recent or most popular.  While the search function is helpful and Lexology places up-to-date stories on its front page; the site’s real value, and its selling point is as a subscription service.  Registration is free. Once registered you are offered a variety of practice areas you can receive updates for. Updates can also be limited by jurisdiction. Stories come by email once a day.
To prevent information overload, only get the best information available. Lexology makes good information available for free.  

Monday, March 4, 2013

Where's the (Kobe) beef?



My mother is 86 years old and she loves a good hamburger or a good grilled steak. Sadly, she will never know the taste of what is arguably the finest beef in the world, Kobe beef, without traveling to Japan. Regardless of what upscale restaurants say on their menus, there is no such thing as Kobe beef in the United States. It does not exist. It is illegal to import Kobe beef into the United States. The Kobe beef for sale here is not real Kobe beef; it’s beef, but it’s not the Kobe beef.

Kobe beef only comes from a particular type of cow raised under very strict conditions in the Hyogo prefecture in Japan. It has been illegal in the U.S. to import any kind of beef from Japan since 2010 due to reports of Foot-and-Mouth disease. If you have had Kobe beef in the U.S. after 2010 then you have been a victim of fraud, but a completely legal fraud that is almost unique to the United States. 


The term “Kobe beef” is trademarked and patented in Japan, and pretty much everywhere else in the world, except the United States. What?! Yes, the U.S. is not a signatory to the 1891 Treaty of Madrid which protects geographically designated food production (also known as Geographic Indications). These are food products that are connected to a geographic place Think Florida orange juice, Maine lobster, Champagne, or Parmigiano-Reggiano cheese. None of these products are “the real thing” unless they were made or harvested in a particular place. The U.S. has made an affirmative decision not to participate in the protection of the trademarks for these types of food products; thus we have “Kobe” beef raised in Texas, “Champagne” made with grapes grown in California, and “Parmigiano-Reggiano” cheese made in New York. While this benefits domestic producers it punishes foreign producers marketing the genuine article, and it also punishes domestic consumers by selling them beef, sparkling wine, and cheese that isn’t what it advertises itself to be.


The foodie consumer can still get real Champagne from the Champagne region of France and real Parmigiano-Reggiano cheese from Parma Italy, but forget about getting Kobe beef in the United States. My mother will just have to be satisfied with Beck’s Prime for now.