February 4, 2010
Lawyering and Law's Limits
One of the things I try to teach students is that the job of "lawyering" often requires knowing the practical limitations of the rules and theories we discuss. For example, it's one thing to know that the law gives certain rights to your client; it's a different thing to understand how enforcing those rights will affect your client's overall interests. In the world of property law, this issue comes up with some frequency. Take land use practice, for instance, where advancing your developer client's legal rights too forcefully may lead to resentment or backlash from the public officials (or their constituents) with whom the client likely needs to maintain good working relations.
Over at Concurring Opinions, Gerard Magliocca (Indiana - Indianapolis) applies this idea to the "Who Dat" controversy that I mentioned here. Noting the public outrage over the NFL's claims to the phrase, he writes that intellectual property rights often "cannot be enforced to their limits because that would alienate potential customers." A recent incident involving Bruce Springsteen seems to bear this out. The Boss apparently has filed a copyright infringement suit against a New York bar that allowed a band to play his songs but never paid ASCAP a licensing fee for the privilege. Whatever the legal merits of the suit, some of the comments to the story suggest that there may be a public relations cost for pursuing it. Because I think it's important for students to realize this tension early in their careers, I like to provide them with these types of real world examples.
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