Welcome to Original Jurisdiction, the latest legal publication by me, David Lat. You can learn more about Original Jurisdiction by reading its About page, and you can email me at davidlat@substack.com. This is a reader-supported publication; you can subscribe by clicking on the button below. Thanks!
I describe Original Jurisdiction as “a newsletter about law and the legal profession.” These days, though, a more accurate description might be “a newsletter about Stanford Law, Stanford Law, and Stanford Law.“
Stanford is now vying with Yale Law for domination of my top 10 most-read stories list. And the SLS saga has resonated beyond the legal world as well. My coverage has been cited or linked in publications including the New York Times (David French and David Leonhardt), Washington Post (staff editorial), Wall Street Journal (op-ed by Judge Duncan), and Chronicle of Higher Education (Len Gutkin).
Now let’s turn to non-Stanford news. Compared to the busy past month, it was actually a fairly slow news week (excluding all the Trump-related fire drills). But there’s still plenty to discuss, so let’s get to it.
Lawyer of the Week: Lisa Blatt.
To borrow the old E.F. Hutton motto—yes, I’m old—“When Lisa Blatt argues, people listen.” Reading a cold transcript doesn’t do her justice. And I’m glad I listened to the argument in Jack Daniel’s Properties, Inc. v. VIP Products, since it will end up being one of the most entertaining arguments of the Term (right up there with Andy Warhol Foundation for the Visual Arts, Inc. v. Goldsmith, another case starring Blatt).
The Jack Daniel’s argument was messy, and the case is too. Howard Bashman did excellent work in collecting copious coverage of this case about trademark law, the Lanham Act, and the First Amendment. Jack Daniel’s alleges trademark infringement by VIP Products, which produces a chew toy for dogs that looks like a bottle of Jack Daniel’s whiskey. But instead of promising “Old. No. 7 Brand Tennessee Sour-Mash Whiskey,” VIP’s “Bad Spaniels” dog toy offers “The Old No. 2 [aka dog poop] On Your Tennessee Carpet.” Geddit?
I won’t explain the doctrinal intricacies, since this category is Lawyer of the Week rather than Litigation of the Week; for a clear explainer that also reflects my personal view of the case, see this Vox story by Ian Millhiser. Instead, I’ll just walk you through the controversy over Blatt’s argument style.
This colloquy with Justice Ketanji Brown Jackson is illustrative. Justice Jackson offered what sounded like a reasonable way of reconciling First Amendment concerns and trademark law by focusing on whether an artist is using a trademark as a source identifier, i.e., a way of identifying the source of a product or service, or in some other way. That didn’t sit well with Blatt:
JUSTICE JACKSON (after outlining her approach): What’s wrong with that?
MS. BLATT: Well, unfortunately, a lot.
Blatt then uttered a phrase that’s often a warning sign that something irreverent—or worse—is coming (emphases added):
MS. BLATT: And with respect, that—literally, you’re taking language in the text of parody and in the text of 1115(b)(4), which you had a Supreme Court case on, KP Permanent Makeup, saying other—designation of a source are actually exceptions under two statutory provisions that don’t appear in infringement. So I’m fine with you making up stuff.
Did Blatt just say the quiet part out loud? See generally Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803) (the judiciary gets to make stuff up).
As the testiness continued (for about four more transcript pages), some lawyers reacted negatively to Blatt’s demeanor. Elura Nanos collected comments at Law & Crime: “rude,” “condescending,” and “not how lawyers are trained to do oral argument.” But on the bright side, Blatt had funny exchanges with other justices—like this one, after Justice Sonia Sotomayor offered a clever hypothetical involving a political activist who makes t-shirts featuring a drunken Democratic donkey or the Republican elephant and the slogan, “Time to Sober Up, America”:
MS. BLATT: Okay. So, I mean, first of all, that’s funny, your example. I’m going to give you that.
(Laughter.)
Blatt’s delivery of this comment—which sounded like one stand-up comic giving grudging props to another—is what made it so entertaining. Again, you need to listen.
And here’s what unfolded after Justice Samuel Alito expressed incredulity at the notion that some consumer might think the “Bad Spaniels” dog toy was authorized by Jack Daniel’s:
MS. BLATT: Justice Alito, I don’t know how old you are, but you went to law school, you’re very smart, you’re analytical, you have hindsight bias, and maybe you know something—
JUSTICE ALITO: Well, I went to a law school where I didn’t learn any law—
Followed by “(Laughter.)” Because who doesn’t enjoy a good Yale Law joke?
The justices are pretty good-humored about Lisa Blatt’s unusual argument style—not surprising, since she makes their jobs more fun—and speaking for myself, I’m generally a fan of her refreshing candor and wit. But while I wouldn’t go as far as her harshest critics, I think she maybe crossed a line in the Jack Daniel’s argument, perhaps by being overly casual or familiar with the justices.
That said, Lisa Blatt is Lisa Blatt—the woman with the most Supreme Court arguments in history, and one of the most consistently victorious SCOTUS advocates of any gender, with a win percentage north of 80 percent—and as she told me in our podcast interview, she can’t be anyone but herself. But as a member of the Lisa Blatt Fan Club, I’d offer this friendly advice: before your next argument, Lisa, try decaf.
Judge of the Week: Judge Kato Crews.
Don’t be fooled by the “country bumpkin” affect of Senator John Kennedy (R-La.). Senator Kennedy is a graduate of Vanderbilt (magna cum laude and Phi Beta Kappa), Oxford (with first-class honours), and UVA Law (Virginia Law Review, Executive Editor, and Order of the Coif). And he’s the most dangerous questioner on the Senate Judiciary Committee, using his time not for bombast and speechifying, but for sly, tricky questions that trip up nominees.