Blawg Review #191
LIKELIHOOD OF CONFUSION® is privileged to host the Blawg Review of Lights on this festive night!
Hannukah celebrates the victory of the Maccabees, a small band of Jewish patriots, over the mighty armies of Syrian King Antiochus. When they restored the Holy Temple in Jerusalem, the Maccabees found one jar of pure oil, enough to keep the menorah burning for just one day. But a miracle happened, and the oil burned for eight days.
A classic question, and one that lawyers, the people who blog about their work and the people who (God help them!) read those blogs will appreciate regardless of creed, for it is as steeped in legalistic dialectic as any greasy Hannukah donut:
The miracle of Hannukah is celebrated for eight nights. But as the story goes, when the Temple was liberated, enough uncontaminated oil was found there to light the menorah for a day, so the miraculous light evidently only lasted for seven days, not eight. Why, then, do we celebrate eight days of Hannukah?
The question is nearly as old as Hannukah itself (and that’s old!), as are many of the answers. Recently Rabbi Reuven Subar collected, not inappropriately, eight of those ancient answers, and we will do our best to jam — like the jelly in one of those donuts — our Blawg Review links and commentary into the topical concepts represented by his selection and thereby enlighten your winter solstice too (the explanatory links are ours):
They divided one night’s oil into eight portions. Miraculously, each portion lasted an entire night.
This practical approach, by which the miraculous appears in flaming relief, comes to us via the great codifier of Jewish law, Rabbi Yosef Karo. His definitive work on this vast body of regulation, the Shulchan Aruch, or “the Set Table,” is a perfect table-setting for our broad consideration of the vastness of, may we be forgiven the comparison, the secular world of law, legislation and policy.
Thus first we visit the law blogs whose portion we can only envy for the brilliance by which their efforts illuminate a juridicial darkness that so many others can merely only curse for what is, to the blinkered among us, its dim bleakness:
- Cathy Gellis delivers a summary of an recent decision from Montana pitting public access to natural resources against private property rights in the matter of fish and water (actually a Hannukah-connected theme as well!)
- It’s a dirty job, but somebody’s got to make a fortune doing it: Michael Doan continues a worthwhile series explaining the ins and outs of California foreclosures.
- Eugene Volokh s not a big fan of the work being done by the Monaghan-backed Thomas More Legal Center. Whatever your view of the AIG bailout (see more below), a “First Amendment” argument that the bill favors Islam over other faiths doesn’t sound like a winner.
- Brian Kalt at Concurring Opinions considers whether a President can pardon himself. President Bush might want to get a second opinion.
- Scott Henson writes that cops, crimes, and courts aren’t the solution to every problem. Perhaps a world government, then?
Wanting the oil to last, they made the wicks one-eighth of the normal thickness. Nevertheless, the flames burned just as brightly as if the wicks had been the normal thickness.
A similar approach approach is championed by the founder of the dynasty of Gerrer Hasidim, a group known for their unique commitment among hasidim for their widespread rigorous talmudic legal mastery and adherence to halachic (regulatory) norms, and his spiritual ancestor, Rav Achai Gaon, centuries earlier. Not surprisingly, then, the Rebbe posits an entirely rational, forward-looking Hebrew leadership that had, it would seem, already solved the conundrum of how to make one day’s typical supply of pure, ritually uncontaminated oil last the eight days needed to secure and deliver a new supply. To this, he teaches us, it is as if God asks, “By virtue of your dedication and sacrifice, both on the battlefield and in your mental exertion to fulfill My Law, should the light in My Sanctuary burn dimmer?,” and answers by delivering the miracle of full illumination.
Thus for this night we consider law blog writers who focus on the topic of our own LIKELIHOOD OF CONFUSION®, intellectual property, which while it neither corners the market on intellect nor even deals so much with property, nonetheless is devoted to protecting those rewards that may accrue to those who live a life of the mind, imagine what could be and, perhaps, merit that special extra intensity — that dial that goes to “eleven” — in their own ways:
- Robb Shecter does more than wave at a familiar refrain — the diminishing difference between infringing intellectual property and, well, just plain using it, a problem that we’ve also noticed seems to come to a head when it comes to the use of sports-oriented insignia.
- Susan Scafidi’s Counterfeit Chic celebrates its third birthday, stylishly as ever.
- A person named — well, in this post it’s a little difficult to say this, but the blogger’s name is “Piggy” — roots out the never-ending head-banging insanity of whether you can ever be found legally liable for linking to a website. The post is a tad hard to take but the conceptual payoff is there… you’ll have to, er, click the link to see what we mean.
- Two interesting developments related to parody and satire and UK law have caught the attention of DaithÃ Mac Sithigh at Lex Ferenda. Are we seeing some sort of transatlantic convergence here?
- In an ecumenical spirit that seems at first entirely contrary to that of this post — and yet, bless those chaps at the USPTO! — Tamera H. Bennett presents Merry CHRISTMAHANUKWANZMADAN Trademark at Current Trends in Copyright, Trademark & Entertainment Law.
- Paul Allen Levy explores the fascinating phenomenon of the use by trademark holders, who are usually on the receiving end of this business, of “misleading” keyword advertising to draw consumers away from actual complaint web sites. Good thing we don’t believe in “diversion” here at LIKELIHOOD OF CONFUSION® — right?!
The golden Menorah was ritually impure. So were all the Jewish soldiers, having come in contact with death on the battlefield. Therefore, they were forced to make a temporary earthenware Menorah, because earthenware is more resistant to impurity. But earthenware is porous, and when it’s new it absorbs a small but significant part of any oil put in it. Therefore, one night’s oil for a gold Menorah was not sufficient for an earthenware menorah because some of the oil is lost to absorption.
In one account, the text reads “and there wasn’t enough (oil) it to burn even one day…”
The answer to the question posited by the author of Atzei Zayis (a latter-day commentator) also posits an ingenious solution, reminiscent of that suggested by the Chiddushei HaRim above, but with a totally unexpected, negative consequence. The result was that it was a miracle that the oil even lasted one day! Similarly, an ancient source, Rabbi Achai Gaon, focuses on this point, regardless of whether it was the result of the improvisation by the Jewish forces or otherwise. Thus the miracle is apparent nearly at the outset, like a star rising in the early evening sky!
Here are posts in a similar spirit, in which our bloggers seek no more and no less than to share their bright insights with otherwise benighted colleagues, and get right to the point about it:
- What could be more down to earth right now than the “simple” question of the classic slip-and-fall? Benjamin Clark walked through the icy parts of Iowa laws mandating prompt snow removal from residential sidewalks and lays it all out.
- Did you know how good law students could be at this? They’re breathing right down our necks! Here, look: Blawgging early adopter Evan Schaeffer, who I think may technically still be a co-blogger of ours, runs down the latest law-student blawging at The Legal Underground.
- No one is in the dark for long regarding the views of Kevin O’Keefe and social networking for lawyers.
- Okay, it looks straightforward, but on the other hand — you tell us what the heck is going on here.
- What could be more simple!!?? KNOCK BEFORE YOU OPEN THE DOOR!
- Marty Schwimmer — yes, trademark law is IP, but for droll straightforwardness he truly is in a category of his own (see Dennis Kennedy item below).
The Greeks ransacked the Temple many days in search of oil to defile. Despite their strength and numbers, they overlooked one flask. A few weak, battle-weary Jews found it immediately.
Seven days commemorate the miracle of the oil, and one day commemorates the miracle that a few weak Jewish soldiers defeated the mighty Greek legions.
The Meiri’s focus as well as that of the Kedushas Levi takes us entirely away from the question of “Why eight and not seven?” and focuses on a different Hannukah miracle together. Their interpretation of the matter must be read in the light of the question it is answering, for otherwise it sounds as if it were the very opposite of what it is: We do not celebrate the stronger, keener-sighted rebelling Hebrews for the superiority over the vanquished Syrian Greeks.
To the contrary, the supernatural aspect of the festival — and as we explain below, when we talk about the supernatural, we always talk about eights — is that the Jews, known neither for their physical strength nor their sharp eyesight, were nonetheless graced by God with a special illumination at the time of Hannukah. It was a grace of the sort which enables its recipients to see what previously had been hidden by virtue of having fought against great odds because it was the right thing to do.
This is surely appropriate considering the role of the second commentator in this section, the Kedushas Levi — better known as Rabbi Levi of Berditchev, the “defense attorney” before God for the downtrodden, exiled remainder of Israel. So here we consider posts implicating a favorite topic of this blog, i.e., the weak vanquishing the strong, the Davids slaying Goliaths– the legal Maccabees, if not of our day, of last week.
- Who exactly are the weak and the strong in, well, tobacco litigation? We’re not so sure these days, and considering the mess the state legislatures, the plaintiffs’ bar, the state courts, Congress, the Federal Tradem Commission and now the Supreme Court seems to have made of the jurisprudence of the thing, who can blame us? Leon Gettler keeps us up to speed just who is blowing what kind of litigation smoke these days over at his Sox Blog.
- For that matter, how about as between the United Auto Workers and Big Three execs? Is there any way to tell which one is Seleucid Greeks and which one is the Hebrews without a score card? For that matter, did President Bush have any legal right at all to throw $17 billion of our money at both of them? David Zaring and Randy Picker considered whether the TARP-based bailout of GM and Chrysler is, you know… legal. While we’re at it, the Perfessers axe: How about the one over at AIG?
- JIMMY CHOO vs. KOOCHYCOO? Marc Randazza reports on more of the usual trademark overreaching, but once again, a wave of Internet suppost could help turn the back the choo-choo of Big IP.
- Jon Katz, the Underdog Blogger himself, writes about the loss of a treasured colleague, Mark Helm, who regarding himself as the last best chance for people charged with crimes with little other hope for justice.
Again, though, we started with a basic question: Hannukah, of course, is eight days long, and although there is neither an eight-day wait before or after this Blawg Review, that is because even we bloggers exist in the mundane world of the physical, the natural, the — well, the mundane. It is a theme well known to students of Jewish lore that the number eight is associated with transcendence beyond the natural, above the seven days of Creation — a bridge from the human to the Divine. Still, these last several answers seem to question: Even as we admit that the miracle itself may not be tied to the oil, and even if stipulate that miraculousness is associated with eightness (which in modern terms might perhaps be described as 140-ness?) — why eight days of Hannukah, in particular? Read on…
The commandment to light the [Temple] Menorah with pure oil is written in the Torah (Leviticus, chapters 23 and 24) immediately after the commandment to observe the Succos festival for 8 days . . . . The Sages saw this as a Divine hint that Hannukah should be for 8 days.
This approach from the mystical hasidic master, Rabbi Tzvi Elimelech of Dinov, almost suggests that the eight day outcome is merely a matter of statutory interpretation, depending entirely on the unique insight of the decisor to divine what is in this case a Divine intent from relatively obscure-seeming hints. But this master of Kabbalah hardly based his insights either on dry interpretations or personal hunches.
Mere law bloggers can only aspire, in the application of their own far narrower crafts, to the complete integration of the spiritual, the symbolic and the interpretive of the Bnei Yisaschar. But here we can at least list blog posts that demonstrate their authors’ determined commitments to dig deep to the essence of a matter, plumb its depths and, again, shed light those who will seek it:
- From the sublime to the, well, less sublime, it cannot be gainsaid but that Dennis Kennedy seems to many to hold the whole world of legal blogging in his hands. He has just announced his Blawggie Awards and every bit as much as Dennis has never failed to mention any important legal or influential legal blogging developments or personalities, you won’t want to miss that post.
- Evan Schaeffer has his list, too! Also Greg Lambert. It’s that time of year, right? Yes, too bad these fellows couldn’t wait a week and get the “making a list, checking it twice” lines, but that will not do in this post. OK, we have a hangup about those kind of lists, anyway. But this is the last time we’ll link to this post. Consider the subject dropped. And thanks for the coal.
- On a more substantive note, Jacob Hacker makes the case, demonstrating more than a little command of the topic, if you don’t mind, for public plan choice in national health reform.
- Similarly, you can’t really fake a topic like “drug and device law,” and Jim Beck and Mark Herrmann aren’t faking anything. They argue that one of the touchiest subjects in drug and device – and indeed all – product liability litigation is whether defense counsel can discuss a plaintiff’s medical condition informally with the plaintiff’s doctors. They synopsize the current state of play, state by state, for every state in the nation. Every. State.
- We could have put this in the IP section, but we’ve already mentioned Tamera, who blogs at this new place too, and plus the salient feature of Ask Before You Act is: These guys are good.
There’s a lot of good out there, and a little light dispels a great deal of darkness.
Indeed, there is one more view of the question we’ve been dealing with here, which we’ll add in before we sign off. It’s a famous insight of the great ethical and religious figure of a century ago known as the Alter (Elder) of Kelm, and again, the question is, Why do we celebrate eight days despite the fact that most understandings of the Hannukah narrative suggest only seven days of miraculous events? His answer:
It is a “miracle” that oil burns in the first place.
It’s a miracle that we are here today, in an age of greater miracles and wonders than ever. Thank you all for sharing this little bit of light in the darkness, and in doing so, bringing your own light, and a great light from a special place in which we all can share, too, to our Hannukah party.
Blawg Review has information about next week’s host, and instructions how to get your blawg posts reviewed in upcoming issues.