Month: March 2017 (page 2 of 3)

Academic Freedom In Interesting Times

Education Law Section

By William Joseph Austin Jr.

This article is posted in anticipation of the 2017 Education Law Section Annual Meeting and CLE scheduled for April 21 at the N.C. Bar Center.  The theme of the program is freedom of speech in educational institutions.

A 50th anniversary came and went this past fall without fanfare or commemoration.  But for several weeks in October and November of 1966, Andrew Marvell’s poem, “To His Coy Mistress,” written circa 1650’s, was a “national sensation.”[1]  On Oct. 17, 1966, the television station WRAL reported that a UNC English instructor had assigned his students to write a paper on seduction using this 17th-century poem.[2]  Subsequent investigation by a departmental committee determined in November that the instructor, Michael Paull, had not given the students that assignment, but asked them to use the poem to explain imagery and six figures of poetic speech.[3]

In the meantime what was called the “Coy Mistress” case became the subject of television commentaries by then editorialist Jesse Helms in his Viewpoint series.  Quoting from the transcript of one of them, he had this to say:

In the sometimes fuzzy, superficial world of misguided academic freedom and irresponsible freedom of the press, all the world is mostly a stage and a good many of the people are actors.  Therefore, it is remotely possible, though not logically probable, that the young English professor at Chapel Hill — the one with such an apparent preoccupation with sex — may somehow manage to wear that crown of pious martyrdom so frantically placed upon his head last week by the “liberal” newspapers of the state.[4]

The history of how a freshman English assignment was seized upon by the press and politicized is discussed in depth elsewhere.[5]  Yet the “Coy Mistress” case is often forgotten, perhaps eclipsed.  This chapter in UNC history occurred in the wake of the 1966 “student revolt” against the Speaker Ban Law.[6]  Overturning the Speaker Ban Law was ultimately a victory for academic freedom in the classic sense that educational institutions should be allowed to freely determine on educational grounds who may teach, what may be taught, and how it shall be taught.[7]  The “Coy Mistress” case, on the other hand, at least according to one scholar, involved the “politics of character assassination,”[8] referring to the invective heaped on the English instructor and the effect it had on his teaching career.  It also involved a direct attack on the Sweezy freedom[9] to let the university determine what may be taught and how.  After all, “To His Coy Mistress” was then, and still is, recognized as a “Masterpiece,” reviewed in the eponymous Wall Street Journal weekly feature.[10]

However our purpose here is not to cast judgment, but to demonstrate, once again, what’s past is prologue.  Fifty years later, the fall semester of 2016 was marked by increased incidence of newsworthy speech and speech acts in school settings, albeit none as intense (so far) as the “Coy Mistress” case:

  • In September a high school teacher resigned after her students said she asked them to compare speeches by Adolf Hitler with those made by then presidential candidate Donald Trump.
  • In October, several members of a university marching band, emulating the racial protest of a professional football player, “took a knee” during the Star Spangled Banner at a college football game.
  • In November an elementary school canceled a “wax museum” in which third-graders had chosen to portray Adolf Hitler.
  • It was reported that a university course on college sports, “Big-time College Sports and the Rights of Athletes, 1956 to the Present,” was the object of efforts to “do away with the course.”[11]
  • A high school teacher was suspended for 10 days for stepping on the American flag during a First Amendment lesson.

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Recent Court Decisions

Labor & Employment Law Section

By Joseph S. Murray IV

The U.S. Court of Appeals for the 4th Circuit and the N.C. Court of Appeals issued the following employment law opinions in the past several weeks:

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The Chair’s Comments: Kiawah is Calling

Tax Section

By Joshua D. Bryant

Fellow Tax Section Members:

It is hard to believe only three months remain in my term as chair of the Tax Section. It has been a rewarding experience, and I look forward to continuing to serve our section over the remainder of the 2016-2017 bar year.

The past few months have been busy for the section. In November, we held our second Tax Section Council meeting of the year at the Elon School of Law in Greensboro.  In conjunction with that meeting, we held our annual meeting with IRS representatives jointly with members of the Tax Committee of the North Carolina Association of Certified Public Accountants (NCACPA).  The meeting gave attendees an opportunity to learn about IRS Field Collections initiatives aimed at increasing employment tax compliance and current areas of focus of Taxpayer Advocate Services.

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Key Changes to NC Rules of Appellate Procedure

By Laura Graham

On Jan. 1, 2017, a comprehensive revision of the North Carolina Rules of Appellate Procedure took effect. The revised Rules apply to all cases appealed on or after Jan. 1. The revised Rules include some brand new provisions, and they also incorporate several changes that had been in effect for some time pursuant to stand-alone orders of the North Carolina Supreme Court.[1]  The revised Rules are available here: http://www.aoc.state.nc.us/www/public/html/pdf/therules.pdf.

No doubt, attorneys who regularly handle appeals have already scoured the revised Rules for brand new changes. But for the benefit of the rest of us, I’ve chosen to highlight five provisions in the revised Rules; the first three are new changes, and the other two are codifications of prior stand-alone changes.

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New Rules Of Appellate Procedure For North Carolina

Government & Public Sector Section

By Jennifer M. Jones

As winter turns to spring, it’s a good time to freshen up on the N.C. Rules of Appellate Procedure! Did you know that new rules went into effect on Jan. 1, 2017?  You will want to review these new rules before drafting your next appellate brief!

Perhaps the biggest change is that your likely go-to font, Courier, no longer complies with the rules. Your brief will also need a certificate of compliance for word count. The new rules also cover how en banc review will work.  Please read the ARC Memo On New Rules for additional changes.  Please also note that some minor changes to Rule 7 went into effect on March 16, 2017.

 

EEOC Charlotte District Office Pilots Online Inquiry System

From the U.S. Equal Employment Opportunity Commission:

The Charlotte District Office of the U.S. Equal Employment Opportunity Commission (EEOC) is one of five offices that will pilot the EEOC Online Inquiry and Appointment System, the district office announced this week. The system launched on March 13, 2017, and will allow people who live or work within 100 miles of the district office the ability to electronically submit an inquiry and schedule an in-person interview. The initial inquiry and interview are key initial steps for individuals seeking to file a charge of discrimination with the EEOC.

The EEOC receives about 200,000 inquiries per year through the mail, in person and by phone, and about 90,000 of those inquiries become formal charges of discrimination filed with the agency, making the charge-filing process the agency’s most common interaction with the public. This new online system is part of the EEOC’s ACT Digital initiative to improve service to the public, streamline the administrative process, and reduce the use of paper submissions and files.

People can access the Online Inquiry and Appointment System at https://publicportal.eeoc.gov/Portal/ or from the EEOC’s website at https://www.eeoc.gov/employees/online_inquiry.cfm. The agency plans to evaluate the public’s experience with the new system prior to a nationwide rollout later this fiscal year.

“The Charlotte District Office is pleased to be one of the offices selected for the rollout of the Online Inquiry and Appointment System,” said EEOC Charlotte District Director Reuben Daniels, Jr. “We recognize that more than ever online systems are being used to request services and to conduct business. This system is a way for us to increase our interaction with, and be accessible to, the public we serve. We are available to answer questions and respond to feedback from users and can give presentations on the system for stakeholder organizations. I am confident this system will be as well received as the other phases of ACT Digital.”

The EEOC advances opportunity in the workplace by enforcing federal laws prohibiting employment discrimination. More information is available at www.eeoc.gov. Stay connected with the latest EEOC news by subscribing to our email updates.

Change Is Coming Fast (!)

By Matthew A. (Matt) Cordell

“The only constant in life is change.”  So wrote Heraclitus about 2,500 years ago on a papyrus roll using a stylus dipped in ink. Time has proven him correct.

Although change was a very real part of life during the era of Heraclitus, change in our lifetime is accelerating at an unprecedented pace. Gordon Moore, the co-founder of Intel, observed that the pace of technological change in the microchip processor industry seemed to be doubling every year, and he predicted that the trend would continue. Now known as “Moore’s Law,” his statement is often applied more generally to all technology: It is said that the rate of technological change doubles yearly. Other aspects of life, including societal values and international commerce, are also changing with extraordinary speed.

While we all understand that the law typically lags behind technological and social changes, the law and the legal profession are nonetheless changing at an increasingly rapid pace. The sheer size and scope of law grows daily as regulatory agencies promulgate thousands of pages of new rules and guidance (80,260 pages published in the Federal Register alone in 2015, according to the Regulatory Studies Center at George Washington University) and hundreds of courts and agencies create new precedent. As the law becomes exponentially more complex and changes ever more rapidly, lawyers (and the growing industries that complement or compete with lawyers to provide legal services) must evolve … and they are.

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The ‘Nonvisual Play-Doh Scent Mark’: Can It Really Be a Source Identifier?

By Katherine Escalante

Can you put a value to a certain smell? Play-Doh thinks so. In February, Hasbro, Inc. filed its application for the scent of Play-Doh. Scent has a powerful way of evoking particular emotions in consumers. We all have a scent that brings us back to a cherished memory — something unique to our experiences growing up. While I can admit that Play-Doh has a distinct scent, I could never quite tell you what it smelled like. To me Play-Doh smelled like… well… Play-Doh.

The fragrance itself is described as a “unique scent formed through the combination of a sweet, slightly musky, vanilla-like fragrance, with slight overtones of cherry, and the natural smell of a salted, wheat-based dough.” While it is rare for a scent to be trademarked in the United States, it is not unheard of. The first scent to be trademarked was a floral fragrance “reminiscent of Plumeria blossoms” used on yarn in 1990. Consumers tend to view unusual features of a product as a way to make it stand out from the others, not to designate who made it, placing a heavy burden on those that want to trademark scents.

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Annual Meeting Hotel Information for NCBA Intellectual Property Law Section

Please note that the Hilton Riverside in Wilmington is currently full. We have obtained rooms near by at the Courtyard Marriott. Please make your hotel reservations by clicking here. If you haven’t signed up for the Annual Meeting/CLE you can do so by clicking here. This is a great program with a variety of top-notch speakers!

Join us the night before at Elijah’s Restaurant for a joint reception with Sports & Entertainment Law Section (guests welcomed). Click here to rsvp! See you next month in Wilmington!

 

Articles of Interest

Members of the Sports & Entertainment Law Section found the following recent third-party articles to be of potential interest to the section:

Flo and Eddie NY Suit on Pre-1972 Sound Recordings Ordered Dismissed By Court of Appeals – No Issues with Copies Made in the Transmission Process
http://www.broadcastlawblog.com/2017/02/articles/flo-and-eddie-ny-suit-on-pre-1972-sound-recordings-ordered-dismissed-by-court-of-appeals-no-issues-with-copies-made-in-the-transmission-process/#page=1

The Copyrightability of Yoga Poses, Dance Moves and Exercise Routines
http://www.lexology.com/library/document.ashx?g=d29b84f1-06d7-422e-b513-570b3fc1c96a#page=1

Super Bowl Ads Get Political
https://www.manatt.com/Insights/Newsletters/Advertising-Law/Not-So-Smart-TV-Vizio-Settles-Over-Data-Collectio#Article2

NFL Owners, Commissioner Consider Question of NFL Conduct Policies Regulating Non-Football Offenses Once Again http://www.collegeandprosportslaw.com/uncategorized/question-of-nfl-conduct-policies-regulating-non-football-offenses-again-before-owners-commissioner/#page=1

Onza Partners SL v. Sony Pictures Entertainment Inc.
http://www.loeb.com/publications-ipentertainmentcaselawupdates-20170215-onzavsony

Pierce v. Warner Bros. Entertainment, Inc.
http://www.loeb.com/publications-ipentertainmentcaselawupdates-20170215-percevwarnerbros

Big Data in Sports: Changing the Game
http://www.loeb.com/publications-clienreports-20170223-bigdatainsports

Parties in Star Trek Fan Litigation Don’t Boldly Go Into the Unknown; Settle Claims
https://incontestableblog.com/2017/02/27/parties-in-star-trek-fan-litigation-dont-boldly-go-into-the-unknown-settle-claims/

Federal Court Preliminarily Enjoins California Law that Prohibits Reporting Actors’ Ages http://www.haynesboone.com/publications/reporting-actors-ages

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