Re: Preemption

From: Bob Stock <bstock[_at_]attymail.com>
Date: Tue, 05 Jan 1999 18:01:34 -0800

On 1/5/99, Larry Weiss <pgw[_at_]idt.net> wrote:
>
> On Thu, 31 Dec 1998, Dan L. Burk <burkdanl[_at_]shu.edu> wrote:
> >
> > C'mon, Larry. You were the one who complained that the district
> > court opinion wasn't authoritative enough. It was not only
> > affirmed in an extensive published opinion, but one that has been
> > widely cited and quite influential.
>
> I did not point out that the decision originated in the District Court
> in order to question its authority. I recall that I said "District
> Court decision in Louisiana," or something like that, in order to
> highlight the important distinction (to me) of statutory creation of
> a claim (which is necessary in Louisiana), rather than common-law
> recognition of a right by way of defense. As I pointed out, the
> reasoning of the District Court was expressly adopted by the Fifth
> Circuit without elaboration (on this point), and, therefore, the
> lower court decision is the real authority (i.e., ... F.Supp. ...,
> aff'd, ... F2d ... at ...).

I went back and reread what you said, and it was somewhat unclear whether you meant that the level of the court or something else was objectionable. At the beginning you said:

   "This is a District Court case in Louisiana . . . ."

And then at the end of that paragraph you said:

   "Is this the best you can come up with?"

Some (myself included) inferred that part of what you were condemning was the fact that it was district court case.

> I did extensive research into the legislative history of section 301
> in connection with the appeal in Editorial Photocolor Archives v.
> The Granger Collection, a decision of the New York Court of Appeals
> in about 1984 (sorry I don't have the citation handy, as this is
> composed at home), which I believe is the first decision of the
> highest court of any jurisdiction to construe sec. 301.

It's 463 N.E.2d 365 (N.Y. 1984).

> > Okay, Larry, 'fess up. You spell defense with a "c" and you don't
> > grok David Carradine. Where are you from?
>
> I am not a stranger in a strange land.

Unless there are two Lawrence N. Weiss's, both from New York, and both counsel in many published decisions, Larry is currently with Pantaleoni, Govens & Weiss. Which, of course, doesn't explain why he would spell "defense" with a "c."

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Bob Stock <bstock[_at_]attymail.com>
http://www.geocities.com/Paris/1206/

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Received on Wed Jan 06 1999 - 02:05:18 GMT