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Blawg Review #123

Posted in Blogs & Blogging



No. 07-123


In re Blawg Review


This case presents issues involving patent infringement, trademark and copyright violations, defamation, free speech, arbitration, expert testimony, jury misconduct, cumulative error, attorney’s fees, and costs.  The parties have provided extensive briefs, and we have received several amicus curiae submissions.  Finding no error, we affirm.


Blawg Review is the blog carnival for everyone interested in law.[1]  Each weekly issue consists of blog posts from lawyers, law professors, and law students.  This week, the Editor of Blawg Review has designated theTexas Appellate Law Blog as pro tem Supreme Court of the Blawgosphere.  As such, the Court has final discretion regarding the issues presented here.


I.  Patent, Trademark, and Copyright

David Lat at Above the Law collects a number of links regarding Nixon Peabody’s now-famous firm song, including some of his own prior posts.  Denise Howell at Between Lawyers offers some suggestions for how the firm should have reacted instead of threatening legal action, while Frank Pasquale at Concurring Opinions discusses the fair use issues Lat’s unapologetic approach raises.

Brett Trout at Blawg IT evaluates Lionsgate Entertainment’s claim that T-shirts emblazoned with the phrase "Nobody Puts Baby in the Corner" from the movie Dirty Dancing violate the Lanham Act, even though no one has registered that slogan as a federal trademark and copyright protection does not apply.  Ron Coleman offers another take on the subject at Likelihood of Confusion.

The Chicago IP Litigation Blog‘s R. David Donoghue informed us that movie critic Roger Ebert has withdrawn Disney’s (and co-host Richard Roeper’s) right to used his trademarked thumbs-up/thumbs-down rating system, which he co-owns with the late Gene Siskel’s estate.

Finally, at Patent Baristas, guest blogger Bill Gallagher asks whether the tide of willful patent infringement litigation is receding.

II.  Defamation and Free Speech

BeldarBlog extends an interesting invitation to Senator John Kerry, having noted that he permitted the statute of limitations to lapse for any defamation claim he may have had against the authors of Unfit for Command:  Swift Boat Veterans Speak Out Against John Kerry.

J. Craig Williams of May It Please the Court identifies the law blogs judges most often read.

At LexBlog, Colin O’Keefe posts a detailed assessment of AmLaw 200 firms’ participation in the blawgosphere, and Rob La Gatta passes on some do’s and don’ts of judicial blogging.  In another LexBlog post, Kevin O’Keefe mentions Texas District Judge Susan Criss, whose blog As the Island Floats has received national attention lately.

III.  Arbitration

Disputing discusses In re Merrill Lynch Trust Co., the new Texas Supreme Court decision declining to adopt concerted-misconduct equitable estoppel as a means by which non-signatories to an arbitration agreement may nonetheless compel arbitration.

IV.  Expert Witnesses

We learn what S. COTUS at Appellate Law and Practice really thinks about the Tax Court trial involving whether a sex change operation was deductible as medical treatment and the government’s choice of expert witnesses.

V.   Jury Misconduct

At Deliberations, Anne Reed discusses the Seventh Circuit opinions arising from the trial of former Illinois governor George Ryan and his aide, who were convicted of improperly steering state contracts for their own benefit.  Decision of the Day describes the affirmance (or was it the conviction?) as close enough for government work.

VI.  Cumulative Error

Scott Greenfield sets out the fallacy of "true believers" at Simple Justice.

The WSJ Law Blog reports that Merck’s refusal to settle with any of the 45,000 people who have sued claiming that its Vioxx painkiller caused a heart attack or stroke appears to be paying off.  Tort Deform presents another view of this story.

VII.  Attorney’s Fees and Costs

At Law.com‘s Legal Blog Watch, Carolyn Elefant ponders a new benchmark for legal services—the $1,000 hourly rate.

Greg May at the California Blog of Appeal adds to the discussion of alternative appellate attorney’s fee agreements by focusing on flat fees, while Blawgletter—who, ironically, is partners with a member ofthe $1,000-an-hour club—goes so far as to suggest that the hourly fee must die.

The Permutter and Schuelke Blog ruminates on contingent fees as a form of value billing.

Over at Build a Solo Practice, LLC, Susan Cartier Liebel writes that lawyers who blog about what they love will get more clients (and thus earn more fees) and feel good at the same time.

Mary Minow of the LibraryLaw Blog revels that Justia.com is making full-text federal district court orders and opinions available online for free.

Daniel Solove at Concurring Opinions tells us about AltLaw, a free research tool that enables the user to search all federal appellate and U.S. Supreme Court decisions within the past 10 years using advanced queries.  At Lawgarithms, Denise Howell mentions AltLaw in a post focusing on public.resource.org‘s efforts to create a comprehensive internet repository of federal and state case law and codes.  Finally, Futurelawyer‘s Rick Georges reports on the National Archives and Records Administration’s efforts to provide free access to the Electronic Code of Federal Regulations.


For the foregoing reasons, the judgment below is affirmed.

Blawg Review has information about next week’s host, and instructions how to get your blawg posts reviewed in upcoming issues.


[1] The Court need not decide whether "blawg" or "law blog" is the correct descriptive term and thus reserves that question for another day.


  • http://www.calblogofappeal.com/2007/08/27/woo-hoo-weve-hit-the-big-time/ Woo-Hoo! We’ve Hit the Big Time! | The California Blog of Appeal

    […] One sort, anyway. My post on alternative fee arrangements in appellate practice is featured in Blawg Review #123 hosted by Texas Appellate Law Blog. […]

  • http://www.calblogofappeal.com Greg May

    Thanks for the mention!

  • http://www.susancartierliebel.typepad.com Susan Cartier Liebel

    Great Blawg Review. Very creative and very informative.

  • http://kevin.lexblogcom Kevin OKeefe

    Nice going on the Blawg Review as well as the blog in general Todd. Blog complements your web site nicely and I expect gets you seen by other lawyers – your potential referral sources.

  • http://www.smallbiztrends.com/2007/08/on-youthful-entrepreneurs-and-a-super-fast-roi-from-blogging.html Anonymous

    […] Blawg Review #123, a roundup of blog posts by law bloggers is now live at Todd Smith’s Texas Appellate Law Blog. […]

  • http://blogs.zdnet.com/Howell/?p=185 Anonymous

    […] Blawg Review #123, from Texas Appellate Law Blog by Todd Smith (near and dear to my heart: in the form of an appellate opinion) […]

  • http://homeofficelawyerblog.com Grant Griffiths

    Love the post format for Blawg Review. Keep up the good work.

  • http://appealsplus.com/talblog/2007/09/01/welcome-and-thank-you/ Welcome, and Thank You : Texas Appellate Law Blog

    […] Blawg Review #123 […]

  • http://appealsplus.com/talblog/2008/01/14/blawg-review-123-nominated-for-award/ Blawg Review #123 Nominated for Award : Texas Appellate Law Blog

    […] I had the privilege of hosting Blawg Review #123 back in August. As a contributor, I have been asked to nominate other issues for Blawg Review of the Year. My nominations are: […]

  • http://BlawgIT.com/?p=559 BlawgIT – Internet Patent, Trademark and Copyright Issues with Attorney Brett J. Trout, P.C.

    […] #123 Texas Appellate Law Blog by D. Todd Smith kicks off the Supreme Court brief post with all of the hottest Patent, Trademark and Copyright posts. How can you not love that? […]

  • http://www.likelihoodofconfusion.com/?p=1149 Anonymous

    […] UPDATE: Brett Trout points out there isn’t even a registration for this phrase. Lots of other good stuff in his piece. Hat tip to Blawg Review. […]

  • http://www.texasappellatelawblog.com/2008/05/articles/blogging/blawg-review-161-memorial-day-edition/index.html Texas Appellate Law Blog

    Blawg Review #161, Memorial Day Edition

    I’ve been working on a brief and until this evening hadn’t seen the special Memorial Day edition of Blawg Review over at Patent Baristas. The lead-in photo alone is worth the visit. Thanks to editor Stephen Albainy-Jenei for including my…

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