Alito: "I went to a law school where I didn't learn any law."

I was pleased to attend oral argument today in Jack Daniel's Properties, Inc. v. VIP Products--my first argument since the pandemic. This fun IP case considers a doggy toy that closely resembles a bottle of Jack Daniels whisky. It is always fun to see Lisa Blatt argue in person. She never disappoints. This exchange, in particular, was delightful:

MS. BLATT: Well, just showing how confused I was suggests that I would be your perfect consumer.

(Laughter.)

MS. BLATT: Justice Alito, I don't know how old you are, but you went to law school, you're very smart, you're analytical, you have hindsight bias, and maybe you know something -

JUSTICE ALITO: Well, I went to a law school where I didn't learn any law -

MS. BLATT: Okay. But -

JUSTICE ALITO: --so don't -

(Laughter.)

MS. BLATT: --it's just a little rich for people who are at your level to --to say that you know what the average purchasing public thinks about all kinds of female products that you don't know anything about or dog toys that you might not know anything about. And so I just think -

JUSTICE ALITO: I don't know. I had a dog. I know something about dogs.

MS. BLATT: Okay.

Alito has said many times before that he learned no actual law at Yale Law School. As soon as Blatt mentioned law school, I knew Alito would jab back at his alma matter.

Comments

[CJColucci]

That's actually a long-standing joke about Yale Law School. It was already old when I was in law school 40+ years ago.

[OtisAH]

Still gets big yuks at FedSoc gatherings.

[Krayt]

And at the Supreme Court.

When making a frowny face and leaving, like an angry Admiral Stockdale from a VP debate podium, make sure the king's court will actually be diminished by your bitter absence.

[hoppy025]

Do you consider teaching students that the drafters of the 14th Amendment really had abortion and gay anal sex in mind when they wrote the Due Process Clause to be “teaching law?”

[David Nieporent]

And among Harvard Law grads.

[Bubba Jones]

Is it normal for a lawyer to call out a judge, much less a justice, for being out of touch?

[Armchair Lawyer]

Depends how often they've interacted.

Argue before the same judge 40+ times...a certain level of familiarity may result

[darkersouls]

Certainly shows a lack of decorum, if not respect.

[The Margrave of Azilia]

“Ms. Blatt, where did you get your law degree?”

“There must be some confusion, I’m the president of Jack Daniels. I don’t have a law degree; J. D. is just the initials of the company.”

/just a little joke

[The Margrave of Azilia]

I thought Yale Law School is where you go to network with people who will be important to advancing your high-level career. Though picking up some law would be nice. Where did Alito learn it, if not Yale? (Cue the “he doesn’t know any law” remarks).

[Noscitur a sociis]

Where did Alito learn it, if not Yale? (Cue the “he doesn’t know any law” remarks).

He's way ahead of you.

ALITO: My Constitutional Law course was taught by someone you may, whose name you may remember, most people today may not remember, Charles Reich.
...
By the time, he taught me he was experiencing, I think, some personal turmoil and it was a most bizarre course. During the first term at Yale Law School, most of the courses were big traditional law school classes, 50 or so students.

And you would have three of those. The first-year courses were Contracts/Torts, Civil Procedure, and Constitutional Law, so everybody would have a big class for three of those subjects, but for one of them you would have a small class of, maybe, 15 students, and that was supposed to teach you the subject but also teach you legal writing – it was a combination of the two. So I had him for Constitutional Law, and I kept notes of any Supreme Court or any other case that was even mentioned during the course of the term, and at the end of the term, there was exactly one that had been mentioned.

KRISTOL: Not really a deep dive into the legal reasoning of the Court there.

ALITO: Well, he began by saying that his thesis was there were no livable lives to be lived in the law. That was his phrase. So he went around the room and he’d say, “Why did you come to law school?” And in those days nobody would say, “I came to law school because I want to become a partner at a Wall Street firm and make a million dollars,” so everyone would say, “I came to law school because I think it’s a way of achieving social reform or helping society” or something like that. And then he would engage in a long debate with each student to try to prove that this was not a good reason for going to law school. Basically, he was telling us you really shouldn’t be here. And this went on for weeks. And then he went on to other subjects. That was my ConLaw course.
...
I was consigned to this experience. It was bizarre, and he told us that he could never tell when he would have to go to San Francisco, but he always had a ticket to San Francisco in his desk and at some point in his term, it was possible that there would be a note on the bulletin board that he had gone to San Francisco and the course would then be over. And I came back to school after Thanksgiving and I looked at the bulletin board and there was a note that said, “I’ve gone to San Francisco, that’s the end of classes.” And that was the end of the classes.

KRISTOL: So the lesson is if you want to become a Supreme Court Justice, take a totally worthless ConLaw course your first term at law school, I guess.

ALITO: So I’m self-taught. A lot of people say, “This explains a lot.”

[Life of Brian]

And then he would engage in a long debate with each student to try to prove that this was not a good reason for going to law school. Basically, he was telling us you really shouldn’t be here. And this went on for weeks. And then he went on to other subjects. That was my ConLaw course.

That actually sounds more productive and useful to the average law student than an actual ConLaw class. Probably not of much practical value, though, at a law school where nobody in their right mind would consider dropping out given the vast array of quasi-nepotistic career opportunities on the other side.

[The Margrave of Azilia]

"[Prof. Charles] Reich was gay, and came to terms with this in San Francisco during the 1970s era of rapidly advancing gay rights. He came out during this early period of the modern LGBT rights movement and in his autobiography he details his activism and the process of coming to terms with his then long-repressed sexuality. Decades later Reich was less active in LGBT affairs and explicitly stated that his need to live alone "trumped" sexual orientation as meaningful in his life."

https://en.wikipedia.org/wiki/Charles_A._Reich

[Sarcastr0]

Seems a pretty self indulgent prof, though likely through the lens of some humerus exaggeration.

[Currentsitguy]

Are you often in the habit of lying about the length of your legs?

[Magister]

Comes from people pulling his leg.

[Michael P]

As soon as Blatt mentioned law school, I knew

... that a certain commenter here would jump in with a "this fucking guy"?

[bernard11]

An appropriate comment, even though he missed this opportunity.

[Krychek_2]

I remember being surprised that I took two semesters of contract law without ever seeing or being asked to draft an actual contract.

[OtisAH]

That’s real clever. Who doesn’t enjoy hearing a Supreme Court Justice — especially Alito — announce he never learned anything about the law? Such a kidder. What a guy.

[The Margrave of Azilia]

If you punched your ticket at Yale, you can have have the help do the law stuff.

[hoppy025]

He didn't say he didn't learn anything about the law. He said he didn't learn it at Yale.

[Frank Drackman]

Almost as bad as not being able to tell a Pussy from a Pecker.

[hobie]

Looks like everyone here has found a way to effectively ignore you, Frank. If Myspace is still around you might find an audience there

[MatthewSlyfield]

According to the article, He didn't say that he never learned any law. He said he didn't learn any law at law school.

"I never learned any law" and "I didn't learn any law at my law school" are two completely different statements with completely different meanings.

[hoppy025]

OtisAH believes that a gay man erupting inside another's rear is engaging in a marital act. His definitions are a little skewed.

[Bob from Ohio]

"MS. BLATT: --it's just a little rich for people who are at your level to --to say that you know what the average purchasing public thinks about all kinds of female products that you don't know anything about or dog toys that you might not know anything about. And so I just think -"

Seems needlessly insulting, not "delightful".

"dog toys that you might not know anything about"

What deep knowledge or experience does one need to understand what a "dog toy" does?

[Duck916]

I agree. We don't know what the tone of her voice was from the transcript, nor even what was said in the minutes before from this excerpt, but it does seem pretty snarky to say that to a justice during argument. Seems like she got away with it, so I'm assuming that we're missing some context. I may want to listen to the audio on this one.

[Noscitur a sociis]

She is pretty snarky, she just seems to be able to get away with it. Good for her.

[Bob from Ohio]

"I’m assuming that we’re missing some context"

My guess from ["It is always fun to see Lisa Blatt argue in person."] that she is part of the "club" so gets a pass.

An Assistant AG from Michigan probably gets roasted.

[Sarcastr0]

Probably!

[dwb68]

I thought she came off snarky and cocky.... but apparently it works and she has an 85% win rate on 43 cases, so thats fantastic. Kids dont try this at home!

[DWB]

I think it says more about the good character of Alito than anything else

[Levin]

Jerry Brown made a similar comment, addressing why he failed the California Bar Exam, saying something like (a very rough paraphrase):

I went to Yale; we learned about property rights on the moon.

[The Margrave of Azilia]

If he said *that,* it was one of the Jerry Browniest things he ever said.

[DWB]

Brown was definitely not the worst Democrat ever

[The Turtle Dove]

I, too, learned no law at Yale Law School.
(Prospective judicial appointments may be forwarded via this address.)

Mr. D.

[Jaypd]

Just came to see what the VC's new MAGA readership would make of this. Did not disappoint.

[Mr. Bumble]

Thanks for stopping by; don't let the door hit you on the way out.

[Frank Drackman]

Didn't learn any Medicine in Medical School either, (and they learn even less now a days when they don't dissect their own Cadavers, draw blood, put in chest tubes, deliver Babies, and the Abortion that is "Telemedicine" ("OK Mrs. Jones, but a Stethescope on your chest and tell me what you hear") Just alot of factoids, technical skills, takes 5-6 years before you're even practicing a little "Medicine"

[Bob from Ohio]

"Kato Crews, a magistrate judge in Denver who’s been selected for a district court seat there, couldn’t define a Brady motion and how to analyze it at his confirmation hearing on Wednesday. "

He didn't go to Yale Law but also did not learn anything about the law.

Watch Law and Order at least dude.

[The Margrave of Azilia]

Wikipedia suggests that his pre-MJ work was on the civil side of the law.

[Bob from Ohio]

So? I do real estate and I know what a Brady motion is. Like I said, its even talked about on tv shows.

“It’s not coming to mind… I believe that the Brady case involved something regarding the Second Amendment.” said the federal magistrate

He could have at least made a football joke. Dumb and slow on your feet is no way to go through life.

[LawTalkingGuy]

Trump picked the guy who didn’t know what a motion in limine was.

[Bored Lawyer]

You mean he never got past the threshold?

[LawTalkingGuy]

And we’ll see what happens to this guy. But embarrassing judicial picks aren’t just a biden thing.

[Noscitur a sociis]

Did anyone suggest that they were?

[LawTalkingGuy]

What are the odds Bob said anything about trump’s nominees being morons?

[Bored Lawyer]

Looks like no one here knows Latin. Or everyone does, but finds my jokes stale.

[hoppy025]

He's a black and got his law degree from U Arizona. A black who gets into Harvard belongs at Wash U in St. Louis, and a black who gets into Wash U belongs at U Arizona. A black who gets into U Arizona belongs at McDonald's. This man is pathetic.

[LawTalkingGuy]

Good job Bob, bringing in the racists. Bet you’re proud.

[DWB]

Ooh ... guilt by NO association -- classy

[Rev. Arthur L. Kirkland]

There is never any need to bring any bigots to the Volokh Conspiracy. That pantry is well-stocked.

[David Bremer]

Eh.... guess you had to be there. Because, based on the transcript, if you think this is a humorous exchange, you must live a very dry and boring life.

In fact, the more I read it, the more I'm confused by the whole thing.

[bernard11]

Agree.

An oft-repeated "witticism," that should be sent to the compost pile, is comic genius to Blackman when uttered by a Justice he admires.

This fucking guy.

[Noscitur a sociis]

Eh, it’s not exactly the Algonquin Round Table but I had a sensible chuckle.

[dwb68]

Does blatt know her audience?

" We can win this case by the Court assuming there's an atextual exception, and this Court can go on and invent an atextual break to that exception. "

[Bored Lawyer]

You can read about the case, and see the two products, here:

https://www.scotusblog.com/2023/03/dog-toy-poking-fun-at-jack-daniels-leads-to-dispute-over-parody-exception-to-trademark-protections/

As an IP lawyer, I don't know what all the fuss is about. TM infringement requires likelihood of confusion as to source or sponsorship. No one would think that the toy was put out or sponsored by Jack Daniels.

TM dilution does not require a showing of likelihood of confusion, which is why it's so dangerous. But the Lanham Act requires either dilution by blurring or dilution by tarnishment. I doubt either apply, and in any case the Lanham Act contains an express exclusion for parody. See 15 USC 1125(c).

So, frankly, I don't see this as a First Amendment issue. There is no infringement or dilution. End of story.

[Currentsitguy]

Looks to me like something they'd want to carry at the distillery gift shop.

[David Nieporent]

The District Court found that there was a likelihood of confusion.

It also found that there was tarnishment, for two reasons: (1) "the goods it offers for sale involves human consumption and human consumption and canine excrement do not mix," and (2) the incredibly bizarre argument that the product is a toy, it might appeal to kids, and that would harm JD's reputation because of the "negative mental association of evoking whiskey with children."

It rejected the parody defense with a one-sentence argument: "A defendant's claim of parody will be disregarded where the purpose of the similarity is to capitalize on a famous mark's popularity for the defendant's own commercial use." But it cited for support of this proposition a case that doesn't say anything of the kind.

The Ninth Circuit left the likelihood of confusion finding undisturbed, simply finding that the 1A provided a defense. And it rejected the tarnishment finding not by upholding this as a parody, but by saying that VIP's use of the mark was "non-commercial" because it was "also used to convey a humorous message" and was thus 1A protected.

[Bored Lawyer]

IOW, the lower courts screwed it up royally.

Parody by definition capitalizes on the mark's popularity. You parodize famous and popular things, not obscure things.

I have to see the likelihood of confusion finding. Sounds really off to me.

[Gasman]

I'll have to start using the line when I introduce myself to patients, "I went to a medical school, where I never learned any medicine" and see if that gets any laughs.