Author: TSA Press

Several months ago, the Mississippi Supreme Court adopted a rule restricting the number of times an individual can take the bar exam.  Under the new rule, people who fail the bar exam three times must go back to law school for 12 semester hours before they will be allowed to retake the exam.  There are, of course, a number of reasons for rules like this, and some might argue that such rules increase bar passage rates and protect the public from attorneys who might not understand critical legal concepts.  However, three-strike policies and other limitations on the number of times you can take the bar exam are bad for a number of reasons.

For one, people sometimes perform poorly on the bar exam because of external factors that affect them on exam day.  Most of us probably know someone who got extremely sick on exam day or had to deal with the loss of a loved one right before taking the bar exam.  Furthermore, this website has detailed at length how individuals have gone into labor during the bar exam, dealt with bats in the exam room, and endured a number of other issues while taking the bar exam.  I remember hearing a story about one test-taker a while back who overslept one time he took the bar exam, and then locked his keys in his car during lunch another time he took the bar exam.  Needless to say, this person failed both times.  By decreasing the number of times individuals can take the bar exam before experiencing major consequences, bar examiners are increasing the likelihood that bad luck and other external factors can influence a bar candidate’s future livelihood.

Furthermore, limiting the number of times an applicant can take the bar exam before facing major consequences can put enormous pressure on test-takers.  Repeat bar candidates already need to contend with the emotional strain and stigma of failing the bar exam in the past, and this trauma will only be compounded if applicants will face huge consequences if they fail the exam again.  It is undeniable that people perform worse when they are under pressure, and some firms lessen stress by having a policy to assure employees that they will not be terminated from employment due to failing the bar exam the first time.  Of course, people could argue that pressure is a part of the legal profession, so repeat test-takers should be able to cope with any additional stress.  However, it is unfair to place this burden on bar candidates when they are already under enough pressure as it is.

In addition, policies requiring bar candidates to go back to law school if they fail the bar exam a certain number of times are misguided.  As most people already know, attending law school does very little to prepare students to become practicing attorneys and pass the bar exam.  Indeed, even if repeat test-takers are compelled to take law school courses on bar exam subjects, they will likely still not learn much of the black-letter law needed to pass the bar exam.  This is because law schools typically teach students methods, like digesting cases and reciting facts and law, strategies that test-takers presumably already learned during their initial three years of law school.  If rules required repeat test-takers to enroll in a bar review course, this would make more sense, since this type of regimen would ensure that the repeat test-taker is specifically studying to take and pass the bar exam.  However, requiring bar candidates to head back to law school will do little to improve their odds of passing the bar exam.

Furthermore, limiting the number of times you can take the bar exam compounds the law school debt crisis.  Repeat test-takers are usually in a dire financial situation unless they receive help, since they usually have to borrow money to attend law school and to support themselves while studying for the bar exam.  If repeat bar candidates need to take additional law school classes before they can sit for the bar exam again, this will increase the amount of debt they have.  Furthermore, making repeat test-takers spend more time without higher-paying attorney jobs makes it more difficult for bar candidates to pay off their debt.

In addition, it is unclear what threat to the public bar authorities wish to ameliorate with limiting the number of times you can take the bar exam.  As most people understand, taking and passing the bar exam has little relevance to what type of lawyer you will become when licensed.  Indeed, the bar exam often does not test much of the procedures that are necessary to know in practice.  Furthermore, a number of high-profile individuals have failed the bar exam, so it is clear that people of all stripes can simply be bad at test-taking without posing a risk to the public.  Furthermore, taking the bar exam usually costs hundreds of dollars that goes into the coffers of state bar authorities.  As a result, it does not seem as if resources are being wasted on repeat test-takers.

It remains to be seen if additional states get on the three-strikes bandwagon and impose restrictions on the number of times you can take the bar exam.  However, such limitations should not be implemented for a number of reasons.  Not only do such restrictions increase the pressure on repeat test-takers and compound financial issues, but it is not clear which policy goals such limitations are aimed at achieving.

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Jordan Rothman is the Managing Attorney of The Rothman Law Firm, a New Jersey and New York litigation boutique. He is also the founder of Student Debt Diaries, a website discussing how he paid off his student loans. You can reach Jordan through email at jrothman@rothmanlawyer.com.

In recent weeks, the Gibson Guitar Company has been unfairly painted by certain not-entirely-objective interests on the internet as an IP Maximalist Boogeyman. The critiques center on Gibson’s “Play Authentic” campaign, which provided notice that Gibson holds trademarks for The Les Paul, Flying V, and Thunderbird guitar shapes, amongst others. The notice was delivered via video by Mark Agnesi, Gibson’s Director of Brand Experience, and advised that legal action would be forthcoming against those who exploited Gibson’s marks without consent.

The reaction to the “Play Authentic” advertising campaign and Gibson’s ongoing trademark actions in both Texas and the European Union has been just shy of riotous. For Gibson, their real mistake was not their current attempt to enforce their statutory rights, but the fact that they waited so long to do so, and the manner in which it delivered its message that it will now enforce its rights.

The purpose of intellectual property law is to encourage innovation and quality by giving creators a limited monopoly on their inventions and brands the exclusive right to enjoy the goodwill associated with their trademarks. If you create the Next Big Thing and others want to use your design or mark, they are free to approach you about entering into a licensing agreement. If it weren’t for the legal structures creating this licensing marketplace, only suckers would create anything truly new, as it would be more financially beneficial to avoid the labor and expense of R&D, instead rebranding the creations of others. This is essentially what every guitar manufacturer who creates a “singlecut” type guitar is doing.

So why is Gibson the bad guy? The short answer is it really isn’t — the company’s chief sin was the bizarre manner in which they announced and publicized their campaign, which campaign was itself no different from many other brands’ attempts to protect their IP. The long answer is the paradox of trademark. What Gibson did wrong was not register trademarks for their iconic designs before they were iconic. They are now being viewed as IP maximalists because they were not enforcing their rights earlier.

On the most basic level, trademarks exist to keep customers from being confused. This allows a customer to feel confident in the quality level of their purchase and allows companies who have heavily invested in quality control and consumer goodwill to profit from those investments.

Once a product’s distinct qualities have acquired a “secondary meaning,” be that a shoe with a contrasting red sole, like Christian Louboutins, or Gibson’s famous Les Paul electric guitar, trademarking those unique qualities allows the manufacturer or designer to prevent others from counterfeiting their products.

Trademarks also prevent others from free-riding on the goodwill associated with those products. However, in order to keep their statutory trademark, the manufacturer is required to enforce their rights, lest they be adjudged “abandoned.” Sleeping on your rights also exposes the trademark to the risk of destruction by “genericide”: loss of trademark protections because the product is no longer associated specifically with the trademark holder’s product. So brands are faced with an enforce-it-or-lose it type of situation, and any trademark lawyer worth her salt would advocate for enforcement.

Now, Gibson’s Flying V guitar design was created in 1958, but it was not registered with the trademark office until 1997. This puts Gibson in the odd position of owning a product, design, and mark that they created but which they no longer can claim was only associated with their brand. Why was it not associated only with Gibson? Because Gibson was totally chill about their IP between 1958 and 1997 and did little as other companies ripped off their work and marketed copies. By standing down in the exact way they are currently being admonished for not doing, Gibson waived or at least limited their statutory right to maintain the uniqueness of their marks. Since IP law is supposed to encourage innovation, Gibson maintaining the Flying V solely for themselves would have forced other guitar manufacturers to create competing cool designs. If they’d enforced their rights, we’d likely be swimming in a sweet sea of dope axes.

Instead, we are swimming in a rancid sea of fetid litigation. In one of the more recent cases, Gibson filed suit against Armadillo, which markets the Dean and Luna guitar lines. Gibson alleges that certain of these guitars violate its trademarks in the Flying V and others. But, as noted above, Gibson has historically been lax about enforcing its rights and a chief defense for Armadillo is that it has been marketing and selling (and even building up goodwill in) these guitars for decades.

But what is really at stake for Gibson here is consumer goodwill and control over its marketing messaging — if a consumer or listener has a bad experience playing a Dean V guitar or hearing someone coax a mediocre tone out of one in a smokey bar, that will negatively affect Gibson’s goodwill in its Flying V. Perhaps a concertgoer mistaking a Dean V for the Gibson product would be injurious to Gibson as the concertgoer may reconsider purchasing a Gibson on that basis (unless of course, said concertgoers are Megadeth fans looking to emulate Dave Mustaine, who rocks the Armadillo product). And for the customer wanting to sound like Grace Potter (who until recently had an artist model Gibson Flying V), an association with Megadeth may mega-cost Gibson a sale.

While Gibson may not have been spending great resources on enforcing its trademarks, they have always carefully curated their roster of official Gibson artists as a means of marketing their instruments to a broad clientele. When other guitar manufacturers curate artists with a different aesthetic playing instruments that could easily be mistaken for a Gibson, Gibson loses control over brand messaging for their own products, which is exactly what trademark law should protect against. If Gibson had delivered its message to alleged and potential infringers via a different medium, and perhaps with a smile, its message would likely have been more well-received. But, for now, the trademark disputes rage on.

Ed. note: This article was written with valuable contributions from Doniger / Burroughs summer law clerk Jeremy King, who rocks a guitar when not Shepardizing and can be found on Twitter and Instagram at @jeremykingmusic.

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Scott Alan Burroughs, Esq. practices with Doniger / Burroughs, an art law firm based in Venice, California. He represents artists and content creators of all stripes and writes and speaks regularly on copyright issues. He can be reached at scott@copyrightLA.com, and you can follow his law firm on Instagram: @veniceartlaw.

Picture it: your Biglaw office, it’s late and you’re trying to edit the interrogatories for the third time. You just want to finish this largely thankless task so you can get home and binge watch some Fixer Upper, but what to your wandering eyes should appear but the distinct image of people knocking boots. No, you haven’t dozed off to sleep and this isn’t the start of a wet dream, but it’s folks living in a nearby office building that have thrown discretion to the wind and are locking legs and swapping gravy right in front of the window.

Now, while this specific scenario is fictional, it cuts pretty close to the bone for attorneys at Covington & Burling. People who live in The Apartments at CityCenter received the email below recently reminding them to close their blinds when they might be in a… delicate situation since building management has received complaints from their Biglaw neighbors.

In an incredibly awkward email, forwarded to Above the Law from a resident (though, hopefully, not one of the ones putting on a show), building management has to remind its residents to um, close the damn blinds:

Please be conscientious when opening your blinds to your apartment. The surrounding buildings such as the Covington, Conrad and other office buildings has [sic] reported that they have witnessed uncomfortable encounters that aren’t appropriate. If you have any questions or concerns about this matter, please do not hesitate to contact the front desk.

Warmest Regards,

The Apartments at CityCenter

Turns out fighting through the distraction of your neighbors’ exhibitionist tendencies is just another thing you have to deal with if you want to make it in Biglaw.

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Kathryn Rubino is a Senior Editor at Above the Law, and host of The Jabot podcast. AtL tipsters are the best, so please connect with her. Feel free to email her with any tips, questions, or comments and follow her on Twitter (@Kathryn1).

It was a rough weekend. There’s nowhere you can go anymore in America without having to wonder if you, or your girlfriend, or your kid, will leave with a bullet hole. These shootings happen again, and again, and again, and not only are our leaders failing to do anything to protect us, they’re the source of our cultural rot. People are dying.

And yet, I guess we all just have to go back to work and talk about things like stock prices while those of us who don’t think American streets should be warzones keep fighting for something better, and while everyone else repeats NRA talking points and ignores all the mountains of evidence about how other countries solved their mass shooting problems. That’s apparently where we are in 2019 America. I guess we just have to keep going on about our days like homegrown Nazis aren’t gunning down our friends, neighbors, brothers, and sisters.

On that note, I’ve got more bad news to report. On Monday, the Dow Jones Industrial Average suffered its sixth-largest drop ever, cratering by 767 points. In less than a week, the battered S&P 500 fell by more than five percent. Over just four trading days, $1.4 trillion in shareholder wealth was erased from retirement accounts, 529 college savings plans, and all the other types of portfolios with holdings in S&P 500 companies.

The market carnage started following the interest rate cut from the Fed a few days ago. Normally interest rate cuts are good news for stockholders, but this time, the first rate cut in over a decade had the opposite effect. Traders attributed the drop in stock prices to the description of the rate cut as a “midcycle adjustment,” in the words of Federal Reserve Chair Jerome Powell, verbiage that implied this cut might not be followed by many others.

Then, on Monday, the sixth straight day of losses in the stock market, major stock indexes shed at least a further three percent in response to the drop in China’s yuan currency. China was seen as allowing the drop in its currency in retaliation against Trump’s latest threat to impose more new tariffs on Chinese imports (a weaker yuan makes Chinese exports cheaper to purchase with foreign currencies). China itself blamed the drop in the yuan on “trade protectionism measures” and tariff increases.

Later on Monday, U.S. Treasury Department Secretary and Spokeshamster Steven Mnuchin said that the U.S. would be officially labeling China a currency manipulator, the first time this has happened since 1994. The “currency manipulator” label could lead to further chaos in the financial markets. For what it’s worth, just three weeks ago, the International Monetary Fund said that the value of the Chinese yuan was in line with China’s economic fundamentals, but found that the U.S. dollar was overvalued by six to 12 percent.

By midday Tuesday, stocks had rebounded a little, after China moved to fix the yuan at a slightly stronger rate. China’s commerce ministry also announced overnight that Chinese companies had stopped buying U.S. agricultural products in retaliation against Trump’s latest tariff threat.

So, there you have it. Things are going badly in the stock market, and everywhere else. If you have any energy leftover to worry about your finances when you’re done worrying about whether you’ll be sprayed with bullets, well, you’ve got me beat. Good luck out there.

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Jonathan Wolf is a litigation associate at a midsize, full-service Minnesota firm. He also teaches as an adjunct writing professor at Mitchell Hamline School of Law, has written for a wide variety of publications, and makes it both his business and his pleasure to be financially and scientifically literate. Any views he expresses are probably pure gold, but are nonetheless solely his own and should not be attributed to any organization with which he is affiliated. He wouldn’t want to share the credit anyway. He can be reached at jon_wolf@hotmail.com.

* President Trump and the RNC sued over a new California law that requires presidential candidates to release five years of tax returns to get onto the 2020 primary ballot. We were wondering when this “naked political attack against the sitting president of the United States” would happen. [New York Times]

* Former FBI agent Peter Strzok has filed suit against the Justice Department over his firing, claiming that being dismissed from the investigative agency for sending text messages disparaging Donald Trump violated his constitutional right to private political speech. [Wall Street Journal]

* From the demise of your favorite toy store to the destruction of one the most recognized luxury stores, Kirkland & Ellis is making a killing when it comes to representing the death of our brick-and-mortar retail economy. [American Lawyer]

* William Brown, a former Navy SEAL who currently works as an associate at McCarter & English, recently led the first-ever sanctioned swim across the Hudson River with 30+ other SEALs to raise money for veterans. Congrats! [Big Law Business]

* Meet Jeffrey Morgan, one of the lucky few lawyers to have had his federal student loans discharged through the Public Service Loan Forgiveness program. Unfortunately, he still owes $67,987.09 in private student loans. [MarketWatch]

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Staci Zaretsky is a senior editor at Above the Law, where she’s worked since 2011. She’d love to hear from you, so please feel free to email her with any tips, questions, comments, or critiques. You can follow her on Twitter or connect with her on LinkedIn.

We’ve run out of ways to express the rise of Dentons with proper English. It’s hard to believe this is a firm that didn’t even exist 7 years ago when SNR Denton, Fraser Milner Casgrain and Salans got together to create what at the time was a pretty big firm — roughly 2500 lawyers. That figure seems quaint now. After merging with Dacheng to create a “gobsmacking” 6600 attorney firm, the firm didn’t stop.

Today, the firm has over 10,000 attorneys working around the world and while you’d think that would be more than enough to cover every conceivable market and practice area, but you would apparently be wrong.

Yesterday, Dentons announced that it plans to merge with Lee International, a leading law firm in South Korea. In keeping with the verein model Dentons operates under, the South Korea practice would be owned and controlled by the South Korean partners — making it the first global firm where local operations are 100% owned and controlled by Korean partners.
“With this combination, Dentons will be the only global law firm permitted to practice Korean law, offering clients high-quality legal counsel and business solutions,” said Joe Andrew, Global Chairman of Dentons. “This combination is an illustration of Dentons’ strategy to scale the business in dynamic and growing regions.”

Lee International is not bringing a Dacheng-level influx of new lawyers to the Dentons umbrella, but it does add a hefty number of both attorneys and dedicated patent attorneys. Lee International is a full-service firm boasting a strong reputation in IP, M&A, Finance, Real Estate, Corporate, Litigation, Entertainment, L&E, TMT, and Biotech. “We are enthusiastic about joining Dentons.” said Sung-Duck Park, Representative Attorney of Lee International. “The combination with Dentons will enable us to connect our respective talents to opportunities in South Korea and around the world.”

The merger is still pending partner approval and regulatory clearance but will probably be finalized over the next several months.

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Joe Patrice is a senior editor at Above the Law and co-host of Thinking Like A Lawyer. Feel free to email any tips, questions, or comments. Follow him on Twitter if you’re interested in law, politics, and a healthy dose of college sports news. Joe also serves as a Managing Director at RPN Executive Search.

Poor harvests have left many in need of humanitarian aid

More than five million people in Zimbabwe – about a third of the population – need food aid, with many coming close to starving, the UN says.

The World Food Programme (WFP) has launched a $331m (£270m) appeal as the country battles the effects of drought, a cyclone and an economic crisis.

David Beasley, head of the WFP, said many were “in crisis emergency mode… marching towards starvation”.

Once a regional breadbasket, Zimbabwe has suffered years of turmoil.

Recent harvests have been badly affected by drought and the price of food has risen sharply. Low water levels have also hit the main hydro-electric plant at Kariba, triggering rolling power cuts across the country.

The country is also facing a financial crisis and has reintroduced the Zimbabwe dollar a decade after it was abandoned amidst rampant inflation.

Launching the appeal on Tuesday, Mr Beasley said about 2.5 million people were on the cusp of starvation.

“We are talking about people who truly are marching towards starvation if we are not here to help them,” he said.

“We are facing a drought unlike any that we have seen in a long time.”

The drought has reduced water levels at Kariba, cutting electricity generation

Zimbabwe’s problems were exacerbated when Cyclone Idai swept through the region earlier this year.

The huge storm, which also hit parts of Malawi and Mozambique, affected 570,000 Zimbabweans and left tens of thousands of them homeless.

Last week, Finance Minister Mthuli Ncube said the government had been providing grain to 757,000 homes since January, in both rural and urban areas.

And on Tuesday, President Emmerson Mnangagwa, who took over from long-time ruler Robert Mugabe in November 2017, declared the drought a national disaster.

The UN was already appealing for $294m for Zimbabwe but says it now needs more funding as the impact of the drought has spread.

Post published in: Agriculture

HARARE – The UN food agency launched a $331-million appeal for aid donations to feed millions of people in crisis-hit Zimbabwe, which is reeling from a drought and the high cost of food.

Around five million people, or a third of the 16 million Zimbabweans, are in need of aid and at least half of them are on the cusp of “starvation”, according to the World Food Programme (WFP).

Speaking at the launch of the appeal, WFP executive director David Beasley said 2.5 million Zimbabweans were “in crisis emergency mode… marching towards starvation”.

He added that by early next year 5.5 million in all, will be in a similar position.

A former regional breadbasket, Zimbabwe’s economy has been on a downturn for over a decade with perennial food shortages, a foreign currency crunch, scarcity of basic commodities and high unemployment.

The government blames the food shortages on the effects of climate change while critics say the shortages are a result of a slump in agricultural production following the government’s land reforms.

The last agricultural period was particularly bad as the country was hit by an El Nino induced drought.

In addition to food shortages, the appeal also targeted the humanitarian needs of victims of the monster Cyclone Idai which swept through parts of eastern Zimbabwe earlier this year.

The cyclone, which also affected parts of Malawi and Mozambique, affected 570,000 Zimbabweans and displaced some 50,000 of them.

Finance Minister Mthuli Ncube last week said the government was feeding hundreds of thousands of people affected by drought both in rural and urban areas, providing grain to 757,000 households since January.

The country’s inflation rate spiked to 176 percent in June up from 97.85 percent in May, according to official figures, and the government has decided to stop publishing inflation statistics for the next six months, raising fears of the 2008 hyperinflation.

The southern African nation is enduring shortages of foreign currency, fuel and bread as well as 18-hour power cuts. The power outages threaten mining and industrial output and have upended lives.

The opposition Movement for Democratic Change (MDC) will hold marches in the capital on Aug. 16 against corruption, unemployment and power and fuel shortages and a deteriorating economy, the party said in a notice to the police dated Aug. 5.

“The national challenges are a result of a governance and legitimacy crisis arising primarily out of the disputed election of July 2018,” national organizing secretary Amos Chibaya said in the notice, seen by Reuters.

The departure of long-time leader Robert Mugabe after a coup in 2017 was greeted with euphoria and hope, but this has gradually turned to despair as his successor, President Emmerson Mnangagwa, has failed to revive the economy or usher in meaningful political reforms.

Chibaya said demonstrators would present a petition to parliament after next week’s march.

Luke Tamborinyoka, the MDC deputy spokesman, confirmed the party had notified the police, adding that “we hope the police will allow us to exercise our constitutional right.”

Police spokesman Paul Nyathi said he could not immediately comment.

The MDC does not recognize Mnangagwa’s presidency and maintains that he rigged last year’s vote, charges that the 76-year-old leader denies. Last week, MDC legislators boycotted the mid-term budget statement in parliament because Mnangagwa was present.

The last big protest in Zimbabwe, organized by the main labor union in January against a sharp fuel hike, turned deadly after it spilled onto the streets and was met by an army clampdown in which more than a dozen people died.

Everyday life is getting increasingly tough, with the prices of basic goods spiraling and medical supplies in short supply. Motorists wait for hours to fill up at fuel stations despite fuel prices having gone up more than 500% this year.

The El Nino-induced drought cut the maize harvest by half and is responsible for low water levels at the biggest hydro plant Kariba that has reduced power generation and triggered rolling power cuts.

The drought comes with Zimbabweans enduring the worst economic crisis in a decade – prices of staples such as sugar, cooking oil and rice have more than doubled since June, jacking up inflation to 175.66%.

David Beasley, executive director of the U.N. World Food Programme, said 2.3 million people in rural Zimbabwe need emergency food aid now and the figure would increase to 5.5 million during the lean season up to March next year.

The government estimates another 2.2 million people in urban areas also require food aid, bringing the total to 7.7 million, more than half of the southern African nation’s population.

The $331.5 million would be used for food aid, provision of water and sanitation and cash handouts to stricken families.

“We are talking about people who truly are marching toward starvation if we are not here to help them,” Beasley told diplomats, aid agencies and government officials at the launch of Zimbabwe’s humanitarian appeal to international donors.

“We are facing a drought unlike any that we have seen in a long time. We don’t have the luxury of fiddling while Rome burns.”

The United Nations had previously appealed for $294 million but as the impact of the drought has spread, it needed more funding.

President Emmerson Mnangagwa on Tuesday declared the drought a national disaster.

Finance Minister Mthuli Ncube told the same meeting that the government was surprised by the impact of the drought on power generation.

Another government official told reporters earlier on Tuesday that Zimbabwe would import 400 MW of electricity from neighboring South Africa’s Eskom after agreeing to make weekly payments of $890,000 to clear its debt.

This was after a treasury official said on Monday Zimbabwe would ramp up electricity imports over the next few weeks, potentially easing rolling power cuts, after agreeing to clear its debt to a regional power utility.

“The impact of weather goes beyond the vulnerable, it is affecting production in the manufacturing sector, agriculture and everywhere, and this is an impact again that was not anticipated,” Ncube said.

The hope and euphoria that greeted long-time leader Robert Mugabe’s departure after a coup in 2017 has gradually turned to despair as Mnangagwa has failed to revive the economy or usher in meaningful political reforms.

Amid rising discontent over the state of the economy, the main opposition party said it was planning street demonstrations next week to protest against the government’s handling of the economy.

Post published in: Business