Research & Litigation
On Tuesday, May 21, Ambassador Extraordinary and Plenipotentiary of the Republic of Bulgaria to the United States of America Tihomir Stoytchev, presented two copies of the commemorative reprint of Bulgaria’s Tarnovo Constitution to the Library of Congress.
Adopted on April 16, 1879, the Tarnovo Constitution remained fundamental law of Bulgaria until 1947. Ambassador Stoytchev also donated commemorative copies of the 1911 Constitution of the Kingdom of Bulgaria, which amended the Tarnovo Constitution to reflect the new name of the country. One of the donated pairs of constitutions will become part of the Law Library’s collection, and the other pair will go to the European Division. Law Librarian of Congress Jane Sánchez and Principal Deputy Librarian of Congress Mark Sweeney accepted the donations on behalf of the Library.
Today marks the 157th anniversary of the Homestead Act becoming law. For a number of years before the Civil War, there had been interest in allocating public lands in the trans-Mississippi west to individual settlers, but for a variety of reasons, including arguments over the status of slavery in the territories and concerns by Northern business interests that making cheap public lands available would lead to a shortage in labor, Congress had deadlocked over proposed legislation. In 1860, towards the end of the 36th Congress, both the House and the Senate finally agreed on legislation, only to have it vetoed by President Buchanan.
The Republican Party Platform of 1860 included a demand for
…the passage by Congress of the complete and satisfactory homestead measure which has already passed the House.
In the 37th Congress, after the departure of most of the representatives and senators from the seceding states, it became much easier for the House and the Senate to agree on language. And with Abraham Lincoln, a Westerner, as president, approval was assured.
The bill was originally introduced on July 8, 1861, by Representative Cyrus Aldrich of Minnesota in the Special Session of the 37th Congress that met from July 4 to August 6, 1861. This bill was not considered, but when Congress met again in December 1861, Representative John Potter of Wisconsin, as chairman of the Committee on Public Lands, introduced H.R. 125. This bill was passed by the House on February 28, 1862. The Senate took up the bill in late April of that year and passed an amended version on May 6, 1862. A House-Senate conference committee worked out the differences between the two versions, and the bill was approved by both chambers on May 15, 1862. Over the next 100 years, the idea of the law would be incorporated in subsequent legislation that would include timber lands, lands that required dry farming techniques, and range lands.
Land became available under the act on January 1, 1863, with Daniel Freeman filing one of the first claims on that day. By 1900, 80 million acres of land would be patented by claimants though the act. Before the act expired, over 270 million acres would be granted, although not all of this was granted to individuals. The law was repealed for most of the country by section 702 of the Federal Land Policy and Management Act of 1976, but a ten year extension was retained for Alaska.
To perfect a claim, a settler had to farm a percentage of the acreage within five years of entry. The settler also had to build a dwelling and live on the claim for a certain period of time. Life for homesteaders was often very challenging, especially on the high plains where scarce water and wood made it difficult to grow crops and build a dwelling.
Tomorrow, May 18, 2019, is World Whisky Day, a day that “celebrates all types of whisky/whiskey and encourages everyone to enjoy whisky responsibly.” As a law blog, there is no better way to celebrate such a day than with a post on a whisky court case! On June 7, 2018, the European Court of Justice (ECJ) had to decide a case between the Scotch Whisky Association and the German whisky producer Michael Klotz, who markets a whisky under the designation “Glen Buchenbach.” The case was submitted to the ECJ by the Regional Court of Hamburg, Germany in accordance with article 267 of the Treaty on the Functioning of the European Union (TFEU) (request for a preliminary ruling). The Scotch Whisky Association sought an order that Mr. Klotz cease marketing his whisky under the designation “Glen Buchenbach” on the ground that use of that designation infringes European Union (EU) law which protects certain geographical indications, including “Scotch Whisky.” The ECJ held that the national court must determine whether a consumer thinks directly of the protected geographical indication ”Scotch Whisky” when he sees a comparable product bearing the designation “Glen.” On February 7, 2019, the Regional Court of Hamburg ruled in favor of the Scotch Whisky Association and held that using the designation “Glen” is misleading consumers as to the true origin of the whisky in question and therefore prohibited under EU law. The German distillery has appealed the case to the Higher Regional Court of Hamburg. The case is still pending.
EU Regulation No. 110/2008 sets rules regarding the definition, description, presentation, and labeling of spirit drinks, and for the protection of geographical indications of spirit drinks. (EU Regulation No. 110/2008, art. 1.) Spirit drinks are generally defined as alcoholic beverages intended for human consumption with a minimum alcoholic strength of 15%. They are produced either directly by distillation, by maceration, or by the addition of flavorings, or by mixing a spirit drink with another drink, ethyl alcohol of agricultural origin, or certain distillates. (Id. art. 2.) A geographical indication identifies such a drink as “originating in the territory of a country, or a region, or locality in that territory where a given quality, reputation, or other characteristic […] is attributable to its geographical origin.” (Id. art. 15.) Geographical indications are registered in Annex III of the EU Regulation. One of the registered geographical indications is Scotch Whisky from Scotland.
The defendant Michael Klotz markets a whisky under the designation “Glen Buchenbach”, which is produced in Berglen in the Buchenbach valley in Swabia. The label on the bottles reads: “Waldhornbrennerei [Waldhorn distillery], Glen Buchenbach, Swabian Single Malt Whisky, Deutsches Erzeugnis [German product], Hergestellt in den Berglen [produced in the Berglen].” (ECJ, supra, paras. 9 & 10.) According to the website of the distillery, they chose the name “Glen Buchenbach,” because the Gaelic term “glen” means “valley” and Berglen is located in the Buchenbach valley.
The Scotch Whisky Association alleges that using the term “Glen” for the German whisky infringes the registered geographical indication “Scotch Whisky” and misleads the consumer as to the origin of the whisky despite the clarification on the label. It contends that the EU Regulation protects a geographical indication also against any reference that suggests the geographical origin of that indication. In its view, the term “Glen” evokes an association with Scotland and Scotch Whisky. (Id. paras. 11 & 12.) The Regional Court of Hamburg stated that, according to the jurisprudence of the ECJ, it is not sufficient that the disputed element evokes “some kind of association with the protected geographical indication or the geographical area relating thereto” but the association has to be direct. It held that this is not the case here, because the terms “Scotch Whisky” and “Glen” are not similar and in particular are not synonyms. (Regional Court of Hamburg, supra, para. 48.) However, the Court held that the name is nonetheless misleading, because the average European consumer will think it is from Scotland as the majority of whiskys with Glen in their name are from Scotland. (Id. at 51; EU Regulation No. 110/2008, art. 16(c).) In addition, the Court reiterated that the ECJ explicitly stated that the context surrounding the disputed element, or the fact that that element is accompanied by an indication of the true origin of the product concerned, is irrelevant for the determination. (Regional Court of Hamburg, supra, para. 51.)
As mentioned, the German distillery appealed the case. It argues that the Court should have taken into account that only one percent of surveyed consumers actually made a direct association between the term Glen and Scotch Whisky. It remains to be seen what the Higher Regional Court will decide. Stay tuned for updates on the case here on the blog or in our Global Legal Monitor.
The end of the baseball reserve clause came to major league baseball players as an early Christmas gift on December 23, 1975, when arbitrator Peter Seitz ruled that two players, Andy Messersmith and Dave McNally, were eligible to negotiate contracts with any team. Prior to this time, major league players were bound under the reserve clause, a provision of a player’s contract which provided that the team that he signed with had first claim to his services for the term of the contract. Such control was usually extended in subsequent years of the player’s career. The signing team also controlled any trades that might involve the player. A team could release a player from his contract, which would then make him free to contract with any other team that might be interested in having him play. The reserve clause was not completely one-sided; a player could break it by refusing to sign and then not signing with another team for a year, after which he would be free to sign with a new team. Usually this meant that the individual would not play, and as most players were dependent upon their team salaries this was an option that few could exercise.
There had been previous attempts to break the reserve clause system. The most famous being the organization of the Federal League, an eight team league, which was in business from 1913 to 1915. The Federal League did not use the reserve clause in its contracts so salaries were considerably higher than what a player could earn in the “major leagues.”
The Federal League went out of business in 1916, but in an attempt to collect damages as a result of harm suffered by the National League’s noncompetitive practices, it sued under the provisions of the Sherman Anti-Trust Act. The case ultimately ended up at the US Supreme Court in 1922. In the court’s decision, Federal Baseball Club of Baltimore v. National League, Justice Holmes ruled that major league baseball was not engaged in interstate commerce, and thus not subject to the provisions of the Sherman Act.
Although the reserve clause helped to hold down the salaries of players, some players were rewarded for outstanding performance by incentive provisions in their annual contracts. The 1921 contract for Babe Ruth, an admittedly exceptional player, contained a clause that paid him fifty dollars for each home run hit during the regular season.
After 1922, the issue of baseball’s anti-trust exemption would be raised from time to time, including a famous hearing in 1958 when Casey Stengel verbally tied the Senate Subcommittee on Anti-trust and Monopolies in knots. However, the reserve clause issue would not finally be resolved until fifty years after the decision in Federal Baseball Club. After the 1969 season, the St. Louis Cardinals traded Curt Flood and three other players to the Philadelphia Phillies. Flood had been in the major leagues for 14 years and had just recently won his seventh golden glove award for outstanding defensive play, but the management of the Cardinals, after a disappointing season, wished to reorganize. Flood did not want to go to Philadelphia since he had established roots in St. Louis and he felt he would not be welcomed at the new club. He also felt that after 14 years of play he should not be traded without his consent. When he was not able to get any satisfaction from major league baseball he decided to hire a lawyer and sue. Flood lost his case at both the trial and appellate levels. On appeal at the Supreme Court he was represented by former Associate Justice Arthur Goldberg, who was arguing before the court for the first time since his resignation from the bench in 1965. Justice Blackman, in the decision for the court, upheld the lower courts’ decisions and reaffirmed the validity of the rule of Federal Baseball Club.
Flood would sit out of baseball for the remainder of the 1970 season to return briefly in 1971 as a member of the Washington Senators. His legacy, the year after his death, would be honored by Congress when in 1998 it passed, and President Clinton signed, the Curt Flood Act, which established that major league baseball was subject to the anti-trust laws.
So how did we get to Messersmith and McNally breaking the reserve clause just three years after the courts had ruled against Flood? Due to contract disputes that arose during spring training in 1975, Andy Messersmith played the year without a contract. Dave McNally also started and finished the season without a contract. Both players then sought arbitration to become free agents. Seitzer’s decision granted this status. Messersmith would sign with the Atlanta Braves where he would play for two seasons before leaving for the New York Yankees in 1978. He retired in 1979 after returning to the Dodgers. McNally retired without playing a single game as a free agent.
Meanwhile, in 1974, Jim “Catfish” Hunter signed a two year contract with the Oakland Athletics that stipulated that the team would allocate a portion of his salary to buy an annuity which would pay Hunter in installments at a later date. The management of the Athletics defaulted on the contract when they neglected to purchase the annuity. Hunter exercised the right in his contract to terminate his contract. Prior attempts by players to exercise this standard clause had failed, but in this instance the arbitrator upheld Hunter’s position and he was declared a free agent. In early 1975, Hunter signed with the New York Yankees where, beginning in 1976, he would help the team win three straight American League pennants and two World Series championships. Hunter’s new found freedom, and his pitching skills, inspired Bob Dylan to write “Catfish,” a ballad which was later recorded by Joe Cocker. Full free agency began before the start of the 1977 season when stars such as Reggie Jackson and Mike Schmidt were signed to multi-year multi-million dollar contracts.
For more information about baseball in America visit the Library’s exhibit, Baseball Americana.
The following is a guest post by Elin Hofverberg, a foreign law specialist at the Law Library of Congress. Elin is a prolific blogger and has contributed numerous posts for In Custodia Legis on a variety of legal topics, including 115 Years of Legal Education in Iceland, Raoul Wallenberg – Swedish-American Collaboration in Protection of Hungarian Jews , On the Shelf – Finnish Forest and Forestry Laws, Swedish Law – Global Legal Collection Highlights, FALQs: The Swedish Budget Process, 60 Years of Lego Building Blocks and Danish Patent Law, Alfred Nobel’s Will: A Legal Document that Might Have Changed the World and a Man’s Legacy, The Making of a Legal Cinnamon Bun, and many more.
Two hundred thirty years ago today, on May 15, 1789, the Swedish Supreme Court was created by a royal regulation of May 15 1789 (Kongl. Maj:ts Rådige Förordnande för Des Högste Domstol eller Justitiae Revision af den 15 maj 1789).Masquerade King), abolished the Council of the Realm (Riksråd) and created a Supreme Court which was to consist of twelve men appointed by the king, half from the nobility (frälse) and half non-nobility (ofrälse). Only eight of the members could preside at one time, and the court needed to be composed of half nobility and half commoners at all times.
At the time of its establishment, the role of the Supreme Court was:
- to review legislative proposals;
- to review cases; and
- any other function previously performed as justitierevision (justice revision) by the Council of the Realm.
Over the years, the laws on the Supreme Court have changed, as well as the composition of the court. The following are a few notable changes:
- Establishment of a Separate Law Council
In 1909, the Swedish Law Council (Lagrådet) was established through an amendment Swedish Constitution (Regeringsform). The Law Council was tasked with performing the legislative review functions that the Supreme Court had previously performed. The reason for this change was that the Supreme Court had been overwhelmed with legislative review questions from the Parliament, which took precious time away from adjudicating cases. Today, the Law Council is regulated by the Act on the Law Council (Lag om Lagrådet (SFS 2003:333)).
- Establishment of a Supreme Administrative Court
Through the same amendment to the Constitution in 1909, a Supreme Administrative Court (Regeringsrätt until January 1, 2011, now Högsta förvaltningsdomstolen) was established to decide issues involving the State departments (i.e. decisions by government agencies).
Members of the Supreme Administrative Court needed to have worked as civil servants and, through their work, gained “insight, experience, and honesty” (17 § 2 st. Regeringsformen, as amended 1909, translation by author). The requirements were different to those for the members of the Supreme Court, who had to be “men with knowledge of the law” (17 § 1 st. Regeringsformen, as amended 1909, translation by author). In addition to possessing these characteristics, two-thirds of the members of the Supreme Administrative Court also needed to be eligible for positions as judges, as prescribed in law.
- Abolition of the Nobility Requirement
According to legislation enacted in the mid-1800s, half of the members of the Swedish Supreme Court no longer needed to be members of the nobility as of the mid-1800s.
- First Female Supreme Court Justice
The first female Supreme Court Justice, Ingrid Gärde Widemar, was appointed in 1968. Her biography at the time of appointment is available in SvJT 1968 (in Swedish). At the time of her appointment, she was a member of the Swedish Parliament (Second Chamber) and a lawyer. One of her books is also available in the Library of Congress collections. Today, the Swedish Supreme Court is made up of 16 Justices (Justitieråd), of which 14 sit on the bench and two serve on the Law Council. Out of the 16 Justices, four are women.
Where to Find Supreme Court Decisions?
The following is a guest post by Elin Hofverberg, a foreign law specialist at the Law Library of Congress. Elin is a prolific blogger and has contributed numerous posts for In Custodia Legis on a variety of legal topics, including the 70th Anniversary of the Council of Europe and 60th Anniversary of the European Court of Human Rights, 60 Years of Lego Building Blocks and Danish Patent Law, and many more.
The first semifinal of the Eurovision Song Contest (Eurovision) is taking place today. Eurovision is a popular product of the European Broadcasting Union (EBU), which is made up of the public broadcasting networks of Europe. Twenty-six countries will compete to win in the grand finale being held on Saturday, May 18, in Tel Aviv, Israel.
Eurovision is the music competition where, forty-five years ago (on April 6, 1974), a relatively unknown band won big with a hit called Waterloo. Yes, you guessed it, the band was ABBA. The year before, in 1973, ABBA performed at the Swedish Melodifestivalen (the qualifier for Eurovision), and finished third with Ring Ring.
Back then, “Abba” was best known as referring to the seafood Abba being short for AB Bröderna Ameln. The name of the pop group on the other hand is short for Agneta, Björn, Benny, and Anni-Frid, the first names of the ABBA members (Agneta Fältskog, Björn Ulvaeus, Benny Andersson, and Frida (Anni-Frid) Lyngstad). Their original group name was actually Björn & Benny, Agneta & Anni-Frid.
The group’s record company Polar contacted Abba in the 1970s, prior to ABBA’s big hit in 1974, asking if the pop group was allowed to use the name – to which Abba responded in the affirmative, as long as ”the youths behaved and did not tarnish Abba’s good reputation” (translation by author). I must confess that as a child I incorrectly thought the name (of seafood) Abba was borrowed from (pop group) ABBA.
Back to Eurovision. The EBU was formed on February 12, 1950, as an interest organization for European public broadcasters. Today, its mission is to “make public service media indispensable.” It also broadcasts the Eurovision Song Contest (Eurovision).
Eurovision is governed by a number of rules, of which a summary is publicly available. Five countries automatically qualify for Eurovision (France, Germany, Italy, Spain, and the United Kingdom) (Rule 2.2.3). The remaining countries must compete for the 26 slots in the final by qualifying in the semifinals being held today and this Thursday. This year, contestants from 35 countries are participating in the semifinals, following Ukraine’s withdrawal. Only songs that are less than three minutes long and that have not previously been released may be submitted (Rule 2.2.2). For the 2019 contest, the release date cut-off is September 1, 2018. There are also rules on the contestants, limiting the number of participants to six, prohibiting the use of animals, and requiring that all contestants be at least 16 years old on the day of the finale (Rule 2.2.3). The contents of the performance itself are also regulated. For example, there is a prohibition on swearing and political messages in the lyrics of the song (Rule 2.6). Prior to 1973, the songs had to be sung in the domestic language of the participating nation, a rule that had been implicit prior to 1965 when Swedish performers broke it by performing in English. The rule change in 1973 paved the way for ABBA’s hit in 1974, which was performed in English, and today performances may be completed in any language that the participating nation allows (Rule 2.2.2). By tradition, the winner of Eurovision hosts the next year’s event (Rule 2.1). Nineteen of the countries participating in the semifinals have yet to win Eurovision. Ireland holds the record for the most wins, being seven.
Library of Congress resources related to ABBA, EBU, and Eurovision include:
- ABBA & Disco’s Influence on European Dance Music (James Wintle discusses the history and legacy of ABBA, and the group’s connections to disco and European dance music trends)
- Hans Brack, The evolution of the EBU through its statutes from 1950 to 1976 (1976)
- Ivan Raykoff & Robert Deam Tobin (eds.), A song for Europe : popular music and politics in the Eurovision song contest (2007)
- Jan Feddersen, Lied kann eine Brücke sein: die deutsche und internationale Geschichte des Grand Prix Eurovision. [in German] (2002).
- Julian Vignoles, Inside the Eurovision Song Contest: music, glamour and myth (2015)
The Law Library has published several Global Legal Monitor articles related to public broadcasting in Europe:
- Italy: Legislation Amending Public Broadcasting Services (2016)
- Sweden: Public TV and Radio Service Fee System Reformed, New Tax Introduced (2018)
- Switzerland: Voters Reject Proposal to Abolish Public Broadcasting Fees (2018)
- European Union: European Court of Justice Rules on German Public Broadcasting Contribution (2019)
Funding of public broadcasting is a popular issue and members from the blog team wrote a blog post on it last year.