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Several years ago, Georgetown University law student, and now fellow GULC alum, Sarah Levien Shullman analyzed Supreme Court arguments and found that you could predict the winner based on the Court’s questions. The party that was asked more questions almost always lost. According to Adam Liptak’s recent New York Times story* — click here to read it — Chief Justice Roberts, as an appellate judge, reproduced the study with a sample of cases since 1980 and confirmed the results, explaining to the Supreme Court Historical Society:
The most-asked-question ‘rule’ predicted the winner — or more accurately, the loser — in 24 of those 28 cases, an 86 percent prediction rate
The study made me think about predicting district court outcomes. A study of district court outcomes based on questioning would be much hard to perform accurately because the data set is much larger and the decision making body is much larger and less interrelated. My experience says that, at the district court level, you can learn more from the tone and substance of a court’s questions than from the number of those questions. But I am curious to hear what you think.
* Tip of the hat to the Legal Writing Prof Blog for identifying the story.
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Continue Reading Judicial Questions are a Losing Proposition?

Blawg Review #150 is up at Trust Matters by Charlie Green, co-author of The Trusted Advisor and creator of the Carnival of Trust, which I will be hosting on the first Monday of May. This week’s review links to the Blog’s follow-up post about whether photographs of copyrighted Thomas & Friends toy trains are derivative works — click here for the post.
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Continue Reading Blawg Review #150: Trust Me, it’s Good

Schrock v. Learning Curve Int’l, Inc., No. 04 C 6927, __ F.Supp.2d __ (N.D. Ill. Jan. 29, 2008) (Shadur, J.).*
In February, I posted about Judge Shadur’s opinion in this case holding that plaintiff’s photographs of defendants’ copyright Thomas & Friends toy trains were derivative works and, therefore, could not be registered with the Copyright Office without defendants’ express permission — click here for the post. Professor Rebecca Tushnet of my alma mater, the Georgetown University Law Center, at the 43(B)log has posted about the case also. Tushnet questions why the creator of an authorized derivative work should be prevented from registering that work:
What I don’t understand is why authority to register ought to matter. The derivative works – accepting for the moment that this is what they were – were made with the permission of the copyright owner in the original works. That is all that ought to be required. Of course there is a potential problem of blocking copyrights – but other cases have avoided this by finding no derivative work at all where a translation from two dimensions to three, or three to two, has taken place.
It does seem reasonable that the authorized creator of a derivative work should have the right to register the copyright, leaving any rights held by the underlying copyright owner to be controlled by contract. Of course, requiring that the right to register be expressly granted also leaves the rights to the contract between the parties, just with a different default.
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Continue Reading More on Toy Trains: Should Derivative Works be Registerable Without Permission

I am sad to report that Mark Banner of Banner & Witcoff passed away over the weekend. Mark was an important member of Chicago’s IP bar and an active participant in educating numerous lawyers as an adjunct professor at both John Marshall in Chicago and my alma mater the Georgetown University Law Center. My condolences go out to Mark’s family and the Banner & Witcoff firm.
Here is some more information on Mark’s legacy from Banner & Witcoff:
Mark was the lead trial counsel in many successful intellectual property trials from both the plaintiff’s and the defendant’s perspectives. He had a particular passion for jury trials of patent cases and computer-related technologies. Despite battling cancer for the last five years, Mark continued his involvement in litigation and counseling work. “Mark made significant contributions to the field of intellectual property law. He was an extremely gifted attorney, a loyal partner, and a devoted friend. Mark was an integral part of the firm and will be greatly missed,” said Thomas K. Pratt, President of Banner & Witcoff.
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Continue Reading In Memory of Mark Banner

Father Robert Drinan, S.J. died on Sunday.  Father Drinan was a founder of modern (post-Watergate) legal ethics and a colorful, important character in American political history, having been a member of the House Judiciary Committee during the Nixon impeachment proceedings and an outspoken critic of American activities in Vietnam and Cambodia while he was in Congress.  Father Drinan was also a professor at Boston College (actually the Dean) and then at Georgetown.  While getting my JD at Georgetown, I was blessed to spend a considerable amount of time with Fr. Drinan as an Editor on the Georgetown Journal of Legal Ethics, created by Fr. Drinan and still the only ethics journal in the country, and when I took several of his classes, including his Advanced Legal Ethics Seminar.  Fr. Drinan loved teaching and he had an endless supply of experience from which to teach.  Continue Reading Father Drinan: Losing A Legend

Bill Patry has just published Patry on Copyright — a seven volume treatise on copyright law and the first new copyright treatise in seventeen years according to Patry.  Patry spent seven years working on his nearly 6,000 page treatise and brings a distinguished background to the subject.  He is currently Google, Inc.’s Senior Copyright Counsel, he was…