2013 National Law Review Law Student Writing Competition

The National Law Review is pleased to announce their 2013 Law Student Writing Competition

The National Law Review (NLR) consolidates practice-oriented legal analysis from a variety of sources for easy access by lawyers, paralegals, law students, business executives, insurance professionals, accountants, compliance officers, human resource managers, and other professionals who wish to better understand specific legal issues relevant to their work.

The NLR Law Student Writing Competition offers law students the opportunity to submit articles for publication consideration on the NLR Web site. No entry fee is required. Applicants can submit an unlimited number of entries each month.

Winning submissions will be published according to specified dates.
Entries will be judged and the top two to four articles chosen will be featured on the NLR homepage for a month. Up to 5 runner-up entries will also be posted in the NLR searchable database each month.
Each winning article will be displayed accompanied by the student’s photo, biography, contact information, law school logo, and any copyright disclosure.
All winning articles will remain in the NLR database for two years (subject to earlier removal upon request of the law school).

In addition, the NLR sends links to targeted articles to specific professional groups via e-mail. The NLR also posts links to selected articles on the “Legal Issues” or “Research” sections of various professional organizations’ Web sites. (NLR, at its sole discretion, maydistribute any winning entry in such a manner, but does not make any such guarantees nor does NLR represent that this is part of the prize package.)

Why Students Should Submit Articles:

Students have the opportunity to publicly display their legal knowledge and skills.
The student’s photo, biography, and contact information will be posted with each article, allowing for professional recognition and exposure.
Winning articles are published alongside those written by respected attorneys from Am Law 200 and other prominent firms as well as from other respected professional associations.
Now more than ever, business development skills are expected from law firm associates earlier in their careers. NLR wants to give law students valuable experience generating consumer-friendly legal content of the sort which is included for publication in law firm client newsletters, law firm blogs, bar association journals and trade association publications.
Student postings will remain in the NLR online database for up to two years, easily accessed by potential employers.
For an example of a contest winning student written article from Northwestern University, please click here or please review the winning submissions from Spring 2011.

Congratulations to our 2012 and 2011 Law Student Writing Contest Winners

Fall 2012: October Contest

Laura Homan from Chicago-Kent College of Law: Not All “Entries” Are Equal – The Law of “Entry” and “Admission” for Purposes of the Immigration and Nationality Act
Laura Ploeg from Villanova University School of Law: Chamber of Commerce v. Whiting: A Law Student’s Freewheeling Inquiry
Lloydann A. Wade from Barry University Dwayne O. Andreas School of Law:
Illegal Immigration and Education
Rouzhna Nayeri from SMU Dedman School of Law: Equal Protection and Supremacy Clause—Second Circuit Applies the Strict Scrutiny Test and Holds That New York Cannot Prohibit Nonimmigrants From Obtaining Pharmacist Licenses

Spring 2012:

Winter 2012:

Fall 2011:

Content Guidelines and Deadlines

Content Guidelines must be followed by all entrants to qualify. It is recommended that articles address the following monthly topic areas:

March 2013 Suggested Topic:

Labor Law

Submission Deadline: Monday, March 4, 2013

Articles covering current issues related to other areas of the law may also be submitted. Entries must be submitted via email to lawschools@natlawreview.com by 5:00 pm Central Standard Time on the dates indicated above.

Articles will be judged by NLR staff members on the basis of readability, clarity, organization, and timeliness. Tone should be authoritative, but not overly formal. Ideally, articles should be straightforward and practical, containinguseful information of interest to legal and business professionals. Judges reserve the right not to award any prizes if it is determined that no entries merit selection for publication by NLR. All judges’ decisions are final. All submissions are subject to the NLR’s Terms of Use.

Students are not required to transfer copyright ownership of their winning articles to the NLR. However, all articles submitted must be clearly identified with any applicable copyright or other proprietary notices. The NLR will accept articles previously published by another publication, provided the author has the authority to grant the right to publish it on the NLR site. Do not submit any material that infringes upon the intellectual property or privacy rights of any third party, including a third party’s unlicensed copyrighted work.

Manuscript Requirements

Format – HTML (preferred) or Microsoft^® Word
Length – Articles should be no more than 5,500 words, including endnotes.
Endnotes and citations – Any citations should be in endnote form and listed at the end of the article. Unreported cases should include docket number and court. Authors are responsible for the accuracy and proper format of related cites. In general, follow the Bluebook. Limit the number of endnotes to only those most essential. Authors are responsible for accuracy of all quoted material.
Author Biography/Law School Information – Please submit the following:
1. Full name of author (First Middle Last)
2. Contact information for author, including e-mail address and phone number
3. Author photo (recommended but optional) in JPEG format with a maximum file size of 1 MB and in RGB color format. Image size must be at least 150 x 200 pixels.
4. A brief professional biography of the author, running approximately 100 words or 1,200 characters including spaces.
5. The law school’s logo in JPEG format with a maximum file size of 1 MB and in RGB color format. Image size must be at least 300 pixels high or 300 pixels wide.
6. The law school mailing address, main phone number, contact e-mail address, school Web site address, and a brief description of the law school, running no more than 125 words or 2,100 characters including spaces.

To enter, an applicant and any co-authors must be enrolled in an accredited law school within the fifty United States. Employees of The National Law Review are not eligible. Entries must include ALL information listed above to be considered and must be submitted to the National Law Review at lawschools@natlawreview.com.

Any entry which does not meet the requirements and deadlines outlined herein will be disqualified from the competition. Winners will be notified via e-mail and/or telephone call at least one day prior to publication. Winners will be publicly announced on the NLR home page and via other media. All prizes are contingent on recipient signing an Affidavit of Eligibility, Publicity Release and Liability Waiver. The National Law Review 2011 Law Student Writing Competition is sponsored by The National Law Forum, LLC, d/b/a The National Law Review, 4700 Gilbert, Suite 47 (#230), Western Springs, IL 60558, 708-357-3317. This contest is void where prohibited by law. All entries must be submitted in accordance with The National Law Review Contributor Guidelines per the terms of the contest rules. A list of winners may be obtained by writing to the address listed above. There is no fee to enter this contest.

Data Privacy Day 2013 – Passwords

The National Law Review recently featured an article on Passwords written by Cynthia J. Larose with Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C.:

Something everyone can do for Data Privacy Day: make it a point to change at least one password and make it “long and strong.”

Here are some tips for building strong passwords from David Sherry, Chief Information Security Officer at Brown University:

To create a strong password, you should use a string of text that mixes numbers, letters that are both lowercase and uppercase, and special characters. Best practice says it should be eight characters, but the more the better. The characters should be random, and not follow from words, alphabetically, or from your keyboard layout.

So how do you make such a password?

Spell something backwards. Example: Turn “New York” into “ kroywen ”

Use “l33t speak”: Substitute numbers for certain letters. Example: Turn “kroywen” into kr0yw3n

Randomly throw in some capital letters. Example: Turn “kr0yw3n” into Kr0yW3n

Don’t forget the special character. Example: Turn “Kr0yW3n” into !Kr0y-W3n$

So, you say you can’t remember “complex” passwords…

One suggestion: create one, very strong, password and “append” it with an identifier:

!Kr0y-W3n$Bro

!Kr0y-W3n$Ama

!Kr0y-W3n$Boa

!Kr0y-W3n$Goo

!Kr0y-W3n$Yah

IP Law Summit – March 21-23, 2013

The National Law Review is pleased to bring you information about the upcoming IP Law Summit:

The IP Law Summit is the premium forum for bringing senior IP Counsel and service providers together. As an invitation-only event taking place behind closed doors, the Summit offers an intimate environment for a focused discussion of cutting edge technology, strategy and products driving the IP market place.

The one-on-one business meetings provide access to Senior IP Counsel within the largest corporations across the United States. A thorough selection process ensures a qualified audience, which grants unparalleled business and networking opportunities in a luxurious and stimulating environment.

March 21-23, 2013

The Broadmoor, Colorado Springs, CO

The ABC’s of Government Contract Claims – 10 Ways to Maximize Your Chance of Success

John W. Chierichella of Sheppard, Mullin, Richter & Hampton LLP recently had an article, The ABC’s of Government Contract Claims – 10 Ways to Maximize Your Chance of Success, published in The National Law Review:

1. Understand the Basic Contract Requirement – Every contract lawyer will begin an assessment with a very simple, fundamental question, i.e., “What does the contract say?” Your obligation is to perform to the contract; nothing more; nothing less.

2. Identify Variances Between What the Contract Says and What You Actually Are Doing – If you are doing something other than what the contract actually says, you may be entitled to relief.

3. Ask Yourself “Why Am I Doing This?” –You cannot blame Uncle Sam for your or (generally) your suppliers’ inefficiencies and delinquencies, but there are many Government acts or omissions that might entitle you to relief, e.g., Government direction, a defective specification, an acceleration order, late or defective GFP/GFE/GFI, and Government delinquencies relating to contractually prescribed review periods.

4. Do a Disciplined “Root Cause” Analysis – You perform these kinds of analyses in reporting on discrepancies to the Government. Require no less when analyzing a possible claim. Do not accept the easy answer, e.g., “We missed it.” If that is the response, probe – “What did you miss exactly?” “Show me where it was.” “Let me see the documentation you missed.”

5. Notify the Contracting Officer – Tell the PCO, in writing, of the circumstance that you believe gives rise to a change. Deprive the PCO of the ability to claim, later on, “If only I had known, I would have told you to stop doing that.”

6. Accept No Substitutes – No one but the Contracting Officer has the authority to change the contract. COTR’s, contracting specialists, Program Managers, general officers – they all love to issue orders and they will jawbone you to follow them. Don’t. Report the order to the PCO and ask the PCO to confirm the order to you in writing.

7. Trust But Verify – This one is simple. Never act on an oral direction. Send a letter to the PCO asking for confirmation. 8. Read Your “Changes” and “Notification of Changes” Clause(s) – They impose time limits for notification of a change. Failure to comply can be overcome in many cases, but why take that chance?

9. Use Change Order Accounting – A valid changes claim is only as good as your ability to prove quantum. Establish separate job numbers to collect the costs of the changed work.

10. Earn Interest – An REA can linger without closure for months, and years. If there is no progress, transform the REA into a certified claim and start the accrual of interest. And remember, the statute of limitations for submission of a certified claim is six years from the date of its accrual.

And for those of you who read this far, here is your bonus eleventh tip:

11. Read Those Unilaterally Issued Change Orders – They invariably say the work is not a change and ask you to sign. Don’t.

Chief Litigation Officer Summit – March 21-23, 2013

The National Law Review is pleased to bring you information about the upcoming Chief Litigation Officer Summit:

The primary objective of the Chief Litigation Officer Summit is to explore the key aspects and issues related to litigation best practices and the protection and defense of corporations. The Summit’s program topics have been pinpointed and validated by leading litigation counsel as the top critical issues they face.

March 21-23, 2013

The Broadmoor, Colorado Springs, CO

Controversial Film “Escape From Tomorrow” Shows Need to Protect Intellectual Property

The National Law Review recently published an article written by Matthew J. Kreutzer with Armstrong Teasdale regarding Intellectual Property Protection:

“Escape From Tomorrow,” one of the most controversial films at the 2013 Sundance Film Festival, has put copyright and trademark law, as well as the question of what constitutes parody, in the spotlight. The film reminds companies why it is important to protect their intellectual property: to prevent use (or misuse) by others.

“Escape” tells the story of a family on vacation at Disney World during the outbreak of a mysterious new flu virus. As family members tour the park, they are plagued by increasingly bizarre events that make the rides at the “Happiest Place on Earth” appear to have sinister undertones. As the film progresses, the audience is forced to question whether there really is something unpleasant lurking beneath the famously joyful facade, or if instead, the parents themselves are slowly losing their grip on reality.

Although the film is interesting in its own right, it has become both controversial and noteworthy because it was made “guerilla-style” at the Disney World and Disneyland theme parks without the knowledge or consent of Disney. The cast and crew are seen in the film walking the parks, riding the famous rides, and interacting with the beloved Disney characters without having names, likenesses or locations blurred or obscured. Moreover, ordinary park visitors, who did not know they were being filmed or consent to being in the movie, appear as the background actors.

In the end, Disney may not choose, and ultimately may not be able, to stop the general release of “Escape,” but the specter of IP protection at least gives Disney a possible avenue to pursue. Section 107 of the Copyright Act lists the various purposes for which the reproduction of a particular work may be considered fair use, such as criticism, comment, news reporting, teaching, scholarship, and research. The section also sets out factors to be considered in determining whether a particular use is fair including whether the work is of commercial nature.

Although the U.S. Supreme Court considers parody to be fair use, the particular facts are critical to the final outcome since there is a fine line between parody and a derivative work. Thus, whether the depiction of the Disney parks in “Escape” constitutes fair use could be a matter of interpretation.

“Escape” serves as a warning to those in marketing and sales about the risks of using intellectual property owned by others, such as copyrighted images, when developing promotional materials and webpages. Use of protected images, for example, may not be fair when designed for commercial gain.

Finally, the controversy surrounding “Escape” is a reminder about the danger of showing people in commercial videos, including those used in social media, who have not given their consent to being filmed. Those individuals may have a right of publicity or even claims based on a violation of a right to privacy.

2013 National Association of Women Lawyers Mid-Year Conference

The National Law Review is pleased to bring you information about the upcoming 2013 NAWL Mid-Year Conference – Stretched & Balanced:

Please join NAWL at Walt Disney World®, Florida for our 2013 Mid-Year meeting, February 14-16, 2013.

Attend timely andstimulating CLE programs that will assist you as a woman lawyer in your practice setting.

Network with NAWL membersfrom across the country, plan future activities with your colleagues on NAWL committees, and have a family-oriented, fun-filled time at the theme parks.

View Brochure (.pdf)

Enforcement Implications of Already, LLC v. Nike, Inc.

The National Law Review recently published an article, Enforcement Implications of Already, LLC v. Nike, Inc., written by Karen A. Butcher, Michael F. Clayton, and J. Kevin Fee with Morgan, Lewis & Bockius LLP:

Brand owner’s broad covenant not to sue may render invalidity counterclaims moot.

On January 9, the U.S. Supreme Court in Already, LLC v. Nike, Inc.^[1] held that a plaintiff trademark owner’s dismissal of its infringement claims, coupled with the grant of a broad and irrevocable covenant not to sue a competitor, could render the competitor’s invalidity counterclaims moot. This holding clarifies the standard governing how counterclaims can be rendered moot in the event the underlying infringement claim is dropped. Intellectual property owners should take this standard into account when developing and refining their intellectual property enforcement strategies.

Background

Nike, a well-known designer and manufacturer of athletic footwear, filed a trademark infringement suit in federal district court against Already, another designer and manufacturer of footwear, alleging that Already’s “Sugars” and “Soulja Boys” shoe lines infringed and diluted Nike’s trademark in its “Air Force 1” product configuration. Already denied Nike’s allegations and filed a counterclaim alleging that Nike’s Air Force 1 claimed trademark was invalid.

Eight months after filing its complaint, Nike concluded that “‘Already’s actions . . . no longer infringe or dilute the [Air Force 1 mark] at a level sufficient to warrant the substantial time and expense of continued litigation'” and issued a covenant not to sue.^[2] In the covenant, Nike agreed not to assert any claim or demand against Already or any affiliated entity (including distributors and their employees and customers) based on any of Already’s existing shoe designs or any future Already designs that constituted a “colorable imitation” of Already’s current products. After issuing the covenant, Nike moved to dismiss both its infringement claim and Already’s invalidity counterclaim on the ground that the covenant eliminated the existence of a case or controversy necessary for the survival of Already’s counterclaim. Already argued that, even though Nike had agreed to refrain from suing Already, a case or controversy still existed because Already would still be injured by the continued existence of Nike’s trademark registration. The trial court dismissed Already’s counterclaim and the U.S. Court of Appeals for the Second Circuit affirmed the trial court’s decision. The Supreme Court granted certiorari.

The Supreme Court’s Decision

The Supreme Court unanimously affirmed the decision of the Second Circuit, which dismissed as moot Already’s counterclaim of trademark invalidity in light of Nike’s broad covenant not to sue Already in the future. The district court held that the plaintiff’s broad and irrevocable covenant not to sue removed the existence of an “actual case or controversy,” an element necessary to demonstrate standing in federal court.

Article III of the Constitution prohibits federal courts from rendering advisory opinions or deciding legal disputes in the absence of an “actual case or controversy.” The Supreme Court noted that an “actual controversy” must exist throughout the entirety of litigation, not just at the time the complaint is filed. A case becomes moot—and therefore no longer presents a case or controversy—when the issues presented are no longer live or when the parties no longer have a legally cognizable interest in the outcome. The Court held that the “voluntary cessation” doctrine applies when determining whether a declaratory judgment counterclaim is moot. Specifically, in this case, Nike bore the “formidable burden” of showing that another trademark infringement claim against Already was not reasonably likely to occur.^[3]

The Court determined that Nike had overcome its formidable burden under the voluntary cessation doctrine. Specifically, the Court reviewed Nike’s covenant and determined that it was sufficiently broad to render Already’s counterclaim moot for the following reasons: it was unconditional and irrevocable; it applied to Already’s past and current shoe designs, as well as future designs that were “colorable imitations”; it applied to its distributors and customers; and it prohibited Nike from not only filing a suit, but also from making any claim or demand. Because the Court was unable to imagine a scenario under which Nike could bring another Air Force 1 trademark infringement claim against Already (absent blatant counterfeiting), Already’s invalidity counterclaim was held to be moot.

The Court’s holding is consistent with its 2007 decision in MedImmune, Inc. v. Genentech, Inc.,^[4] which liberalized declaratory judgment jurisdictional considerations. In MedImmune, the Court held that a genuine threat of enforcement of intellectual property rights that inhibits commercial activity may support standing for a declaratory judgment claim. In the Already case, the Court found that Nike’s covenant eliminated any genuine threat of future enforcement by Nike.

Implications of the Court’s Holding

The Already decision is important to all trademark owners, particularly with respect to developing and implementing enforcement strategies. One of the risks associated with bringing a trademark infringement claim is that the defendant might file a counterclaim for a declaratory judgment that the plaintiff’s trademark is invalid. The Court’s decision clarifies that a plaintiff can successfully have the counterclaim dismissed by issuing a broad covenant not to sue.

Whether a covenant not to sue will divest a federal court of Article III jurisdiction over an invalidity counterclaim depends on whether the breadth of the covenant renders the threat of future litigation between the same parties based on the same trademark remote or nonexistent. Although future cases will hinge on the specific underlying facts, the Supreme Court’s opinion sets forth the general elements necessary for a sufficiently broad covenant, including that it (i) be unconditional and irrevocable; (ii) cover the defendant and related entities; (iii) cover not only all current and previous products, but also “colorable imitations”; and (iv) prohibit the plaintiff from making any future claims or demands with respect to the pertinent trademark.

Although a broad covenant not to sue may be desirable to obtain dismissal of a trademark invalidity counterclaim, the decision to issue such a covenant must be balanced against the risk that such covenants could negatively impact the strength and enforceability of the trademark in the future. For instance, depending on the facts, broad covenants not to sue on multiple occasions could result in the loss of trademark rights by the trademark owner or a decrease in the owner’s ability to assert such rights against other third parties not covered by the covenant. As a result, trademark owners should consider these issues before they initiate trademark infringement litigation, particularly when the alleged infringement is limited in scope and the infringement is not seriously impacting the trademark owner’s business.

_{[1]. Already, LLC v. Nike, Inc., No. 11-982 (U.S. Jan. 9, 2013), available here.}

_{[2]. Id. at 2.}

_{[3]. Id. at 5–6.}

_{[4]. 549 U.S. 118 (2007).}

Rainmaker Retreat: Law Firm Marketing Boot Camp

The National Law Review is pleased to bring you information about the upcoming Law Firm Marketing Boot Camp:

WHY SHOULD YOU ATTEND?

Have you ever gone to a seminar that left you feeling motivated, but you walked out with little more than a good feeling? Or taken a workshop that was great on style, but short on substance?

Ever been to an event that was nothing more than a “pitch fest” that left a bad taste in your mouth? We know exactly how you feel. We have all been to those kinds of events and we hate all those things too. Let me tell you right up front this is not a “pitch fest” where speaker after speaker gets up only trying to sell you something.

We have designed this 2 day intensive workshop to be content rich, loaded with practical content.

We are so confident you will love the Rainmaker Retreat that we offer a 100% unconditional money-back guarantee! At the end of the first day of the Rainmaker Retreat if you don’t believe you have already received your money’s worth, simply tell one of the staff, return your 70-page workbook and the CD set you received and we will issue you a 100% refund.

We understand making the decision to attend an intensive 2-day workshop is a tough decision. Not only do you have to take a day off work (all Rainmaker Retreats are offered only on a Friday-Saturday), but in many cases you have to travel to the event. As a business owner you want to be sure this is a worthwhile investment of your time and money.

WHO SHOULD ATTEND?

Partners at Small Law Firms (less than 25 attorneys) Solo Practitioners and Of Counsel attorneys who are committed to growing their firm. Benefits you will receive:

Solo practitioners who need to find more clients fast on a shoe-string budget. In addition to all the above benefits, solo attorneys will receive these massive benefits:

Law Firm Business Managers and Internal Legal Marketing Staff who are either responsible for marketing the law firm or manage the team who handles the law firm’s marketing. In addition to all the above benefits, Law Firm Business Managers and Internal Legal Marketing Staff will also receive these benefits:

Of Counsel Attorneys who are paid on an “eat what you kill” basis. In addition to all the above benefits, Of Counsel attorneys will also receive these benefits:

Associates who are either looking to grow their book of new clients in the next 6-12 months or want to launch their own private practice. In addition to all the above benefits, Associates will also receive these benefits:

NLRB Appointments are “Constitutionally Invalid”

Mark A. Carter with Dinsmore & Shohl LLP recently had an article, NLRB Appointments are “Constitutionally Invalid”, published in The National Law Review:

The D.C. Circuit Court of Appeals has invalidated the appointments of three members of the National Labor Relations Board who were designated on January 4, 2012. On January 25, 2013, the Court issued its ruling in Noel Canning v. NLRB, et al. Docket No. 12-1115. http://www.cadc.uscourts.gov/internet/opinions.nsf/ 13E4C2A7B33B57A85257AFE00556B29/$file/12-1115-1417096.pdf. In Noel Canning, the employer sought to prohibit enforcement of a February 8, 2012 NLRB decision concluding it violated the National Labor Relations Act.

The Court granted the Petition of Noel Canning on the basis that the NLRB lacked a sufficient quorum of members when it reached its decision. In February 2012, the NLRB was putatively staffed with a full complement of five members. However, three of those members were appointed by the President, without confirmation by the Senate, on January 4, 2012. The NLRB maintained the appointments were legitimate “recess” appointments made while the Senate was out of session. The Petitioner argued that, in fact, the Senate was in pro forma session and as such, the President had no constitutional authority to make “recess appointments” of the NLRB members.

The D.C. Circuit agreed with the Petitioner that the President’s appointments were “constitutionally invalid.” As such, the Board did not have a “quorum for the conduct of business” on the date of its decision as only two members of the NLRB were properly seated.

The impact of the decision is likely substantial. In an appearance before the Oversight Committee of the U.S. House of Representatives on February 1, 2012, Dinsmore Labor Practice Group Chair Mark Carter testified, that if the recess appointments on January 4, 2012 were determined to be improper “every administrative decision and every administrative rule or regulation implemented by the National Labor Relations Board will be subject to appeal or attack.” http://oversight.house.gov/wp-content/uploads/2012/02/2-1-2012_Carter-Full.pdf.

Carter testified that if the appointments were invalidated, as they have been, “the actions of the NLRB will be ultra vires” and every decision and regulation will be subject to attack. The NLRB has been active both in the arenas of decision-making and regulatory action over the past year. If the decision of the D.C. Circuit is upheld, the decisions of the Agency since January 4, 2012 may have no mandatory impact on employers, unions or employees.

The NLRB reacted to the decision on the afternoon of January 25 by insisting that the remaining recess appointees, Richard Griffin and Sharon Block, will continue to perform their statutory duties and issue decisions along with Chairman Mark Pearce. House Oversight Committee Chairman Darrell Issa (R – CA) called upon the NLRB to “take the responsible course and cease issuing further opinions until a constitutionally-sound quorum can be established.” Chairman Issa stated “(t)he unconstitutionally appointed members of the NLRB should do the right thing and step down.”

The National Law Forum

2013 National Law Review Law Student Writing Competition