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October 27, 2009

New FTC Guidelines to Affect Bloggers' Product Endorcements

Earlier this month, the Federal Trade Commission approved final revisions to the guidance it gives to advertisers on how to keep their endorsement and testimonial ads in line with the Section 5 of the FTC Act (15 U.S.C. 45).

For the first time, the guidance covers blogs and other social media platforms:

The revised Guides specify that while decisions will be reached on a case-by-case basis, the post of a blogger who receives cash or in-kind payment to review a product is considered an endorsement. Thus, bloggers who make an endorsement must disclose the material connections they share with the seller of the product or service.

The guidelines offer several illustrations of endorsements that do and don't fall under the Act. This one specifically speaks to bloggers.

  • A consumer who regularly purchases a particular brand of dog food decides one day to purchase a new, more expensive brand made by the same manufacturer. She writes in her personal blog that the change in diet has made her dog's fur noticeably softer and shinier, and that in her opinion, the new food definitely is worth the extra money. This posting would not be deemed an endorsement under the Guides.

  • Assume that rather than purchase the dog food with her own money, the consumer gets it for free because the store routinely tracks her purchases and its computer has generated a coupon for a free trial bag of this new brand. Again, her posting would not be deemed an endorsement under the Guides.

  • Assume now that the consumer joins a network marketing program under which she periodically receives various products about which she can write reviews if she wants to do so. If she receives a free bag of the new dog food through this program, her positive review would be considered an endorsement under the Guides.

"Practices inconsistent with these Guides," the FTC notes, "may result in corrective action by the Commission under Section 5 if, after investigation, the Commission has reason to believe that the practices fall within the scope of conduct declared unlawful by the statute."

Source: Wisconsin Law Journal

Latest UW Law School Faculty Scholarship

Here's the latest batch of faculty scholarship from the UW Law School Legal Studies Research Paper Series via SSRN.

October 26, 2009

Wisconsin Innocence Project Celebrates 10th Anniversary

Saturday's Wisconsin State Journal has a wonderful front page article about the tenth anniversary celebration of the UW Law School's Wisconsin Innocence Project.

Twelve prisoners have been freed by the Wisconsin Innocence Project. Six of them were there Friday to be honored and watch for the first time an emotional 25-minute video about their cases...

Wisconsin's program started at a time when there were just a handful of such projects. [Innocence Project co-directors, Keith Findley and John Pray, associate professor Byron Lichstein] work with law students to investigate and litigate possible innocence cases among the 400 or so requests that come in each year...

"If there's anything we've learned from the DNA exonerations of the past 20 years is that our best intentions and most firmly held beliefs can be wrong," Findley said. "No one can ever be too sure. We all have to be open-minded and skeptical and willing to re-examine everything."

October 23, 2009

CorporationWiki Visualizes Corporate Relationships

In her Wisconsin Law Journal blog, Bev Butula discusses CorporationWiki, a web site for company research.

The website allows the researcher to search businesses in over 25 states. It also supports an index to browse by company name or a person's name....

One tool that can be very useful is the "relationship visualizer." It is a graphic display of how companies and individuals are interconnected.

Since a picture is worth a thousand words, here's a screen shot of the relationship visualizer for Harley Davidson Motor Company. Note how the business names and officer names intersect. Very nice for visual learners like me.

There is one problem with CorporationWiki, however, and it could be a pretty big one if you don't recognize it. As Bev notes, the page lacks an "about us" link.

It is important for me (and should be to you) to confirm how the material is collected, who is gathering the information, etc. So, I use the site to collect information and then turn to other resources to verify it.

WLJ's 10 Terrific Law Practice Management Blogs

Jane Pribek at the Wisconsin Law Journal has compiled a list of 10 terrific law practice management blogs.

She's grouped them by Up and coming, Big names, and Home-grown talent. I'm honored to be included in the latter group.

October 21, 2009

Attorney General Responds to Partial Summary Judgment Motion in Diploma Privilege Suit

From WisBar InsideTrack:

Reminding the federal district court of the need to develop an evidentiary record in the constitutional challenge to Wisconsin's "diploma privilege," the state attorney general criticized the plaintiffs' motion for partial summary judgment and permanent injunctive relief as premature....

The attorney general criticized the plaintiffs for misunderstanding the rationale of the diploma privilege.

"Plaintiffs' contention that Wisconsin violates the Constitution by testing general legal principles on its bar exam is based on the erroneous presumption that only instruction in Wisconsin law justifies the diploma privilege," the attorney general wrote. "From this premise, plaintiffs ask the Court to reach the erroneous conclusion that the bar exam can only test Wisconsin law."

"The premise and the conclusion are wrong," the attorney general argued. "The diploma privilege is only extended to graduates who have completed a curriculum mandated by the Wisconsin Supreme Court, which includes instruction in particular legal subject areas, as well as in Wisconsin law, and whose completion of that curriculum has been certified by the deans of the University of Wisconsin or Marquette University law schools."

Accordingly, the attorney general said, the plaintiffs make a second erroneous assumption that all graduates of ABA-accredited law schools have received an identical education. No out-of-state law school is directed by the Wisconsin Supreme Court to certify that all of its graduates have successfully completed the curriculum set forth in the supreme court's rules. The attorney general informed the court of its intention to elaborate further on the curricular differences in the course of developing its evidentiary record....

The attorney general noted that in its remand order, the Seventh Circuit Court of Appeals remarked that the state prevails if the diploma privilege is found to be "at least minimally reasonable." This is because the state's power to regulate admission to the practice of law is subject only to "narrow" constitutional limitation, the attorney general asserted.

"'Minimally reasonable' is a low hurdle," the attorney general said. "The Justices' greater familiarity with graduates of Wisconsin law schools, their greater familiarity with the deans and faculty at these schools, their practical ability to ensure compliance with SCR 40.03's curriculum requirements at those schools, and their greater involvement in educational activities at those schools are alone sufficient to surmount it."

October 20, 2009

Bills Would Ban Texting While Driving

Up for debate today in the Senate is a bill that would crack down on text messaging while driving. Wisconsin Senate Bill 103 would ban text messaging for drivers under the age of 18. [see Senate substitute amendment 1 for the under 18 language]

According to the bill, violators would be charged a fine between $100 and $400 for a first offense, and $200 to $800 for further offenses.

Two other proposals limiting text messaging while driving have been introduced also - Assembly Bill 496 and Senate Bill 355. Both of these would ban texting for all drivers, not just those under 18.

See Google News for articles about the bills. Image from Spinvox.com

Bill Would Require DNA Test Upon Arrest

Everyone arrested on suspicion of a serious crime in Wisconsin would be required to give a DNA sample under a bill introduced earlier this month.

Wisconsin Senate Bill 336 requires law enforcement agencies to collect a biological specimen for DNA analysis from every adult who is arrested for a felony and every juvenile who is taken into custody for certain sexual assault offenses that would be felonies if committed by an adult. The bill further requires the crime laboratories to analyze the specimens and include information obtained from the analyses in the DNA data bank.

There have been several news stories about this bill. For a sampling, see Google News.

October 19, 2009

Are restaurants in Wisconsin required to put cheese on apple pie?

I've seen this posted on a number of dumb laws websites and have always been a little skeptical. Connie Von Der Heide at the Wisconsin State Law Library took the time to check it out. Her answer appears in the Wisconsin State Journal.

"It certainly sounds plausible since after all this is the Dairy State, but the answer is no.

"The 1935 Laws of Wis., ch. 106 came close; it required serving a small amount of cheese and butter with meals in restaurants (effective from June 1935 to March 1937).

"And, by the way, that was the first Wisconsin law with a sunset provision, i.e. a legislated ending time. Interestingly, Vermont just passed a law in 1999 designating the apple as the state fruit and apple pie as the state pie. It also requires a good faith effort to serve either a glass of cold milk, a 1/2 ounce or larger slice of Cheddar cheese, or a large scoop of vanilla ice cream with a slice of apple pie. (Title 1 Vermont Statutes Annotated, secs. 512 & 513, eff. July 1, 1999)"

Although I've not tried cheese on apple pie, I do have a recipe for apple crisp with cheddar cheese. It might sound disgusting but it is really yummy. I'd always thought it was a Wisconsin thing, but apparently folks in Vermont like it also.

Source: The Wheeler Report
Image from CakeSpy.com

October 16, 2009

Pamphlet Highlights Wisconsin Facts and Figures

The Wisconsin Legislative Reference Bureau has produced a nice 2-sided color pamphlet summarizing facts and figures about Wisconsin.

Credit Card Act To Bring Changes - Good and Bad

Channel 3000.com has a good summary of the changes consumers can expect under the new Credit Card Act of 2009.

The Good: "It's not going to be quite as easy to get into trouble as it has been in the past," says Michael Johnson, finance instructor at Madison Area Technical College.

The Bad: "Those low, promotional rates -- like zero-percent interest -- are going to be a lot harder to find, even for those with good credit. Experts also say that it's likely that annual fees, which most credit card company have strayed from, will be making a comeback."

October 15, 2009

2009 Unsung Heroes Nominees

Congratulations to this year's nominees for the Unsung Heroes award presented by the Wisconsin Law Journal. The award seeks to recognize the legal professionals whose efforts are essential to helping law firms and courts run efficiently.

Categories include Secretary, Paralegal, Law Librarian, Administrator, Human Resources, IT Specialists, Marketers, and Court Staff.

I'd like to give a special mention to my law library colleague nominees:

  • Jennifer Dedolph, Reinhart Boerner Van Deuren SC
  • Diane Duffey, Habush Habush & Rottier, SC
  • Carol Hassler, Wisconsin State Law Library

October 12, 2009

Chat Sessions Admitted as Evidence

From Federal Evidence Review:

Internet chatroom conversations about having sex with minors was admissible to show the defendant's knowledge of the age of his victim and absence of mistake under FRE 404(b); a sufficient showing was made that he made the other chats and not other family members who had access to the computer, in United States v. Zahursky, __ F.3d __ (7th Cir. Sept. 1, 2009) (No. 08-1151)

Source: Wisconsin Law Journal

WI Court of Appeals Sanctions Attorney for Sloppy Citation

In an unpublished opinion by the Wisconsin Court of Appeals, the court imposed a $100 sanction on counsel for a seriously messed up citation. The case is Espitia v. Fouche 314 Wis.2d 507, 758 N.W.2d 224 (Table), 2008 WL 4058057 (Wis.App.), 2008 WI App 160.

FN5. Counsel for Espitia cites to an unpublished case assertedly upholding a stipulated damages clause due to the difficulty of ascertaining "the exact amount of income certain vending machines would produce." The cite provided is " Buellesbach v. Roob, 2005 AP 160 (Ct.App.Dist.I)."

Buellesbach indeed is unpublished but it has nothing to do with liquidated damage clauses or vending machines; it is a misrepresentation case brought by newlyweds against a wedding photographer.

Also, "2005 AP 160" is the docket number, which we discovered only after reaching a dead end at 2005 WI App 160, 285 Wis.2d 472, 702 N.W.2d 433.

At last we located the unpublished case that addresses the subject matter for which counsel cited Buellesbach: Stansfield Vending, Inc. v. Osseo Truck Travel Plaza, LLC, 2003 WI App 201, 267 Wis.2d 280, 670 N.W.2d 558. Different name, different citation, different district (District IV) but, as promised, unpublished. [emphasis added]

It is a violation of Wis. Stat. Rule 809.19(1)(e) to provide citations which do not conform to the Uniform System of Citation and of Wis. Stat. Rule 809.23(3) to cite to unpublished opinions. One reason may be that they can be time-consuming to locate.

A $100 penalty is imposed against Espitia's counsel. See Hagen v. Gulrud, 151 Wis.2d 1, 8, 442 N.W.2d 570 (Ct.App.1989).

Hat tip to Law Librarian Blog

West Releases More Law Books on Kindle

Last week, West announced that a selection of its most popular law book titles are now available for the Kindle eBook reader. For a full list, see the press release. To purchase the West titles for the Kindle, search for them on Amazon.

Source: Due Process: The Georgetown Law Library Blog

Petition Filed with WI Supreme Court Aims to Extend Diploma Privilege to Out-of-State Law School Grads

From the latest edition of WisBar InsideTrack:

Sept. 29, 2009 - A petition filed on Sept. 25 with the Wisconsin Supreme Court aims to extend the "diploma privilege" to graduates of all ABA-approved law schools or abolish it entirely.

Petitioner Steven Levine, a past State Bar of Wisconsin president, and 70 other State Bar members seek to amend SCR 40.03, which exempts from a bar examination requirement those graduates of an ABA-accredited law school whose curriculum includes the specific study of Wisconsin law. Among those State Bar members is Christopher Wiesmueller, the plaintiffs' counsel in a federal class action lawsuit, Wiesmueller v. Kosobucki, 07-C-0211, challenging the constitutionality of the diploma privilege.

Read the full article for more.

October 6, 2009

Judge Olly Neal Shares How a Stolen Book and a School Librarian Changed His Life

The other day on my drive in to work I listened to a really touching StoryCorps interview on NPR.

Judge Olly Neal shared the story of how a stolen book and a school librarian changed his life.

Olly Neal grew up in Arkansas during the 1950s. He didn't care much for high school. One day during his senior year, he cut class -- and wandered into the school library.

As he told his daughter, Karama, recently, he stumbled onto a book written by African-American author Frank Yerby. And the discovery changed the life of a teenage boy who was, in Neal's memory, "a rather troubled high school senior."...

There was just one problem: If Neal took the book to the checkout counter, he was sure that the girls who worked on the counter would tell his friends.

"Then my reputation would be down, because I was reading books," Neal said. "And I wanted them to know that all I could do was fight and cuss."

A week or two later, Neal had finished the book -- so he brought it back to the library, careful to replace it in the same spot he had found it.

"And when I put it back, there was another book by Frank Yerby," Neal said.

"So I thought, 'Maybe I'll read that, too.' So I took it under my jacket," Neal said.

"Later, I brought it back, and there was -- by God, there was another book by Frank Yerby. So I took it."

He read four of Yerby's books that semester -- checking out none of them.

But Neal's sneaky behavior turned out not to have been so sneaky after all.

Attending his 13-year high school reunion, Neal ran into the school's librarian, Mildred Grady....

"She told me that she saw me take that book when I first took it," Neal said.

"She said, 'My first thought was to go over there and tell him, boy, you don't have to steal a book, you can check them out -- they're free.'

"Then she realized what my situation was -- that I could not let anybody know I was reading."

Grady told Neal she decided that if he was showing an interest in books, "she and Mrs. Saunders would drive to Memphis and find another one for me to read -- and they would put it in the exact same place where the one I'd taken was."

So, every time Neal decided to take a book home, the pair would set off to the city to find another book for him.

"You've got to understand that this was not an easy matter then -- because this is 1957 and '58," Neal said. "And black authors were not especially available, No. 1. And No. 2, Frank Yerby was not such a widely known author. And No. 3, they had to drive all the way to Memphis to find it."

But the women's efforts paid off: Neal went on to attend law school and later became a judge, retiring as an appellate judge of the Arkansas Court of Appeals.

When Grady died, her son asked Neal to tell everyone gathered for her funeral the story of how the librarian nurtured his reading habit as a teenager.

"I credit Mrs. Grady for getting me in the habit of enjoying reading, so that I was able to go to law school and survive," Neal said.

Bridge and Dykman to Leave WI's Court of Appeals

JSOnline reports that two judges have announced they will leave the state's Court of Appeals in Madison next year: Burnie Bridge and Charles P. Dykman. See the article for more information.

Governor Doyle has announced that he is seeking applicants for appointment as
District IV Court of Appeals Judge.

Source: The Wheeler Report

October 2, 2009

A Look at the Brighter Side of Furloughs

Congratulations to my UW Law Library colleague, JennyZook for her well written article in this month's AALL Spectrum.

In the article, "Buddy, Can you Spare the Time?," Jenny explores the bright side of furloughs - something many of us may be able to appreciate.

Comments from the Public Hearing on CCAP Access Changes

Yesterday, the Assembly Committee on Criminal Justice held a public hearing at the Capital about the proposed bill that would mean big changes for CCAP access. See my earlier post for more info about the Assembly Bill 340.

Today's JSOnline offers a brief run down of the hearing comments from both privacy advocates in favor of the bill and open government advocates who would like to see it defeated.

Video and audio of the full meeting is available on the WisconsinEye website. Although a few other bills were discussed, the vast majority of the meeting focused on the CCAP discussion.

Source: The Wheeler Report

October 1, 2009

Former WI Supreme Court Justice Louis Butler Nominated as U.S. District Judge for the Western District of WI

From the Milwaukee Journal Sentinel:

Former Wisconsin Supreme Court Justice Louis B. Butler was nominated by President Barack Obama Wednesday for a federal judgeship.

He is being nominated to serve as U.S. District Judge for the Western District of Wisconsin. He would replace U.S. District Judge John Shabaz, who took senior status in January.

Butler is currently the justice-in-residence lecturer here at the UW Law School.