FedSoc Blog

Songs for the Supremes

by
Posted May 17, 2013, 10:45 AM

The Wall Street Journal's Law Blog reports:

WASHINGTON–Supreme Court justices Wednesday heard an alien drug offender’s plea for atheism, the abolition of property and the end of American exceptionalism–and responded with a standing ovation.

The occasion wasn’t a case, of course, but the court’s spring musicale, a private concert for the justices and their guests.

The star, Broadway legend Barbara Cook, closed with “Imagine,” John Lennon’s 1971 song envisioning a world free of nations, religion and property, something strikingly at odds with court precedents granting privileges to religious institutions, enshrining property rights and limiting the reach of international law.

“Imagine no possessions. I wonder if you can,” Ms. Cook sang to the justices, seated just a few feet from her in the court’s East Conference Room.

“Imagine all the people, sharing all the world,” she continued, as Chief Justice John Roberts, Justices Antonin Scalia, Anthony Kennedy, Clarence Thomas, Ruth Bader Ginsburg, Samuel Alito and Elena Kagan, along with retired Justice Sandra Day O’Connor sat rapt.

“Who could ask for anything more,” proclaimed Justice Ginsburg, the event’s organizer, at the conclusion, invoking a line from another number Ms. Cook sang, George Gershwin’s “I Got Rhythm.”

Wednesday’s program was a rare foray into popular song, featuring standards by Cole Porter, Hoagy Carmichael and other 20th century songwriters, for a musicale tradition that has focused on classical works.

In addition to Ms. Cook, a Tony Award-winning singer and 2011 Kennedy Center honoree, the concert featured the husband and wife team of jazz guitarist John Pizzarelli and vocalist Jessica Molaskey.

Inaugurated in 1988 by the late Justice Harry Blackmun and produced in cooperation with the Washington Performing Arts Society, the concert offers the justices a respite from jurisprudential rigor as their annual term approaches its June close, and provides arts patrons an unusual setting to enjoy a performance. Previous years have seen jazz singer Bobby Short, pianist Marian McPartland and opera soprano Renee Fleming.

Nevertheless, with love and marriage perennial lyrical subjects, there was no avoiding an occasional, if perhaps unintentional, reminder that two major cases involving same-sex marriage rights hang over the docket.

“Getting Married Today,” from the 1970 Sondheim musical “Company,” featured in the Pizzarelli-Molaskey repertoire. “What’s a wedding, it’s a prehistoric ritual/where everybody promises fidelity forever, which is/maybe the most horrifying word I ever heard of,” the song goes.

And it was fidelity to Sondheim, not the court’s precedents, that clearly weighed on the performers’ minds. At one point, Ms. Molaskey recalled she had sung before the musical genius himself.

“He was sitting about where you guys—” she stopped herself, suddenly unsure of the etiquette for her majestic surroundings. ” ‘You guys’—it’s the Supreme Court!” she said.

Then, to an audience peppered with lawyers who might not agree, she confessed: “It’s a lot more nerve-racking to perform before Stephen Sondheim than the entire Supreme Court.”

Click here to view this article on the source site »

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New SCOTUScast: Agency for International Development v. Alliance for Open Society International

by SCOTUScaster
Posted May 16, 2013, 5:37 PM

On April 22, the Supreme Court heard oral argument in Agency for International Development v. Alliance for Open Society International, Inc. The question in the case is whether United States Leadership Against HIV/AIDS, Tuberculosis, and Malaria Act of 2003, 22 U.S.C. § 7631(f), which requires an organization to have a policy explicitly opposing prostitution and sex trafficking in order to receive federal funding to provide HIV and AIDS programs overseas, violates the First Amendment.

To discuss the case we have Erik Jaffe, a Washington, D.C. attorney who specializes in appellate litigation.

Click here to view this article on the source site »

Categories: SCOTUScasts

Second Appeals Court Invalidates Obama’s NLRB Recess Appointments

by Publius
Posted May 16, 2013, 2:03 PM

Politico reports:

A second appeals court has joined the D.C. Circuit in ruling that President Barack Obama’s recess appointments to the National Labor Relations Board were unconstitutional, concluding that some board actions taken in the wake of those appointments were also invalid.

The issue has far-reaching implications for both the NLRB and other boards, including Obama’s Consumer Financial Protection Bureau, which has been a frequent target of conservatives and whose director was a recess appointment.

The 2-1 decision Thursday from the U.S. Court of Appeals for the Third Circuit (posted here) found that the presidential recess appointment power is limited to breaks between sessions of Congress, not breaks within sessions or other adjournments during which the Senate might meet in pro forma sessions. The reasoning mirrors that in a ruling of the D.C. Circuit Court in January.

The 3rd Circuit case centered on decisions the NLRB made on the authority of three members including Craig Becker, who was appointed by the president on March 27, 2010, while the Senate was adjourned for two weeks.

The case was brought by a New Jersey nursing and rehabilitation center whose nurses were allowed to form a union by one such NLRB decision. The facility, New Vista, contended that the board’s decision was invalid because it did not have enough members active when the decision was issued because the naming of Becker to the board was not a valid recess appointment.

The NLRB must have three members participate in a decision for it to be valid, and the court found that because Becker was not appointed during a break between sessions of Congress, he was not a valid member of the board and thus invalidated the NLRB’s orders.

The opinion, written by Judge D. Brooks Smith, said the recess clause of the Constitution should be read not just to give the president executive power, but also to preserve the “advice and consent” role of the Senate.

In his dissent, Judge Joseph. A Greenaway Jr. said the majority’s reading of the clause was needlessly narrow and ignored the Founding Fathers' intent to give the president the ability to act when the Senate is not available to “advise and consent.”

The administration late last month petitioned the Supreme Court to overturn the D.C. Circuit Court’s ruling on the issue.

The decision comes the same day that the Senate Help Subcommittee held a hearing on five nominations to the NLRB. Sen. Tom Harkin said they nominations would be moved next Wednesday.

Categories: External Articles

Evidence Suggests EPA Gave Environmentalist Groups Preferred FOIA Treatment

by Publius
Posted May 16, 2013, 7:37 AM

The Daily Caller reports:

The IRS may not be the only federal agency singling out conservative groups. Records suggest that the Environmental Protection Agency has made it easier for environmental groups to file Freedom of Information Act requests than conservative organizations.

According to EPA records obtained by the free market Competitive Enterprise Institute, since January 2012 the agency has granted fee waivers for 75 out of 82 Freedom of Information Act requests sent by major environmental groups, denying only seven of them — meaning green groups saw their fees waived 92 percent of the time.

At the same time, the EPA frequently denied fee waivers to conservative groups. EPA records show that the agency rejected or ignored 21 out of 26 fee waiver requests from such conservative groups as the Competitive Enterprise Institute, the Institute for Energy Research, and Judicial Watch — an 81 percent rejection rate.

Fees vary based on how many documents are requested, what medium they are requested in and how much government research is involved.

“This is as clear an example of disparate treatment as the IRS hurdles selectively imposed upon groups with names ominously reflecting an interest in, say, a less intrusive or biased federal government,” said CEI senior fellow Chris Horner, author of “The Liberal War on Transparency.”

Horner described the EPA’s actions as “a clear pattern of favoritism for allied groups and “a concerted campaign to make life more difficult for those deemed unfriendly.”

The Competitive Enterprise Institute has filed 15 fee waiver requests with the EPA since January 2012, but 10 of them have been denied by the agency and only one was granted. CEI won a lawsuit over their FOIA request regarding former EPA Administrator Lisa Jackson’s alias email account, and the EPA ignored three other requests.

The Franklin Center for Government and Public Integrity had both of its fee waiver requests denied, and the Institute for Energy Research had its only fee waiver request denied. The watchdog group Judicial Watch had two of four fee waivers denied, as did the National Center for Public Policy Research.

However, environmental groups were much more successful in getting the agency to cooperate. The Natural Resources Defense Council made 20 fee waiver requests, had 19 granted, and one denied; EarthJustice made 19 requests, had 17 granted, and two denied; the Sierra Club made 15 requests, had four granted and four denied, and Public Employees for Environmental Responsibility had all 17 of its requests granted.

The Waterkeeper Alliance had all three fee waiver requests granted, the Southern Environmental Law Center had both of its requests granted, the Center for Biological Diversity had all four of its requests granted and Greenpeace had both of its fee waiver requests granted.

The fee waivers to environmental groups were also granted on the “initial determination” stage, meaning these green groups did not have to appeal for fee waivers. However, Horner said he had to fight many fee waiver denials, all of which were overturned on appeal.

“Their practice is to take care of their friends and impose ridiculous obstacles to deny problematic parties’ requests for information,” Horner said. . . .

Categories: External Articles

New SCOTUScast: Kiobel v. Royal Dutch Petroleum

by SCOTUScaster
Posted May 15, 2013, 6:05 PM

On April 17, the Supreme Court announced its decision in Kiobel v. Royal Dutch Petroleum. The case involved the Alien Tort Statute (ATS), which permits non-U.S. citizens to bring a lawsuit in federal court in order to seek relief for certain violations of international law.

This case was first argued February 28, 2012, and considered whether corporations, and not merely individuals, can be held liable in an ATS lawsuit, and whether that issue affects the jurisdiction of the court even to hear the case. On March 5, 2012, however, the Supreme Court put the Kiobel case back on the calendar for re-argument, and directed the parties to brief an additional question--whether and under what circumstances the ATS allows courts to address violations of the law of nations that occur outside the United States.

In an opinion delivered by Chief Justice Roberts, the Court held that a presumption against extraterritoriality applies to claims under the ATS, and nothing in ATS rebuts this presumption. Thus, plaintiff-petitioners cannot proceed under the ATS in this case. Justices Scalia, Kennedy, Thomas, and Alito joined the Chief Justice’s majority opinion. Justice Kennedy filed a concurring opinion. Justice Alito filed a concurring opinion, which Justice Thomas joined. Justice Breyer filed an opinion concurring in the judgement, which Justices Ginsburg, Sotomayor and Kagan joined.

To discuss the case, we have Eugene Kontorovich, a professor at the Northwestern University School of Law.

Click here to view this article on the source site »

Categories: SCOTUScasts

Ninth Circuit Voids HP Printer Class-Action Settlement Citing High Attorney Fees

by Publius
Posted May 15, 2013, 2:45 PM

According to Reuters:

A divided federal appeals court on Wednesday voided a class action settlement between Hewlett-Packard Co and millions of consumers who bought its inkjet printers over nearly a decade, saying the fees awarded to the consumers' lawyers were too high.

The decision by the 9th U.S. Circuit Court of Appeals in San Francisco could discourage class action settlements involving "coupons" rather than cash, saying Congress intended that class action lawyers not be awarded fees "grossly disproportionate" to relief obtained by the people they represent.

In the HP case, Circuit Judge Milan Smith wrote for a 2-1 majority that fees should take into account the value of coupons actually being redeemed, not the total coupon relief offered. The 9th Circuit returned the case to U.S. District Judge Jeremy Fogel in San Jose, California, for further proceedings.

The settlement was intended to resolve claims that consumers who bought HP printers between September 2001 and September 2010 were misled into spending too much on or misusing ink cartridges.

HP agreed to provide up to $5 million of coupons, known as "e-credits," for future printers and printer supplies on its website, and to improve disclosures. Lawyers for the consumers were awarded $1.5 million of fees and $597,000 of costs.

About 122,000 of the millions of class members filed claims before Fogel granted final settlement approval in March 2011.

But the accord drew objections from people including Ted Frank, a longtime advocate against high legal fees.

They said the settlement was the product of collusion between lawyers for HP and consumers, and violated portions of the federal Class Action Fairness Act that govern fees in settlements that have coupon components. . . .

Categories: External Articles

Fourth Circuit Ponders “What Is a Pirate?”

by Publius
Posted May 15, 2013, 11:57 AM

The Associated Press reports:

In the violent world of piracy, Mohammad Saaili Shibin was a multilingual negotiator based in lawless Somalia, working his cellphone to negotiate multimillion-dollar ransoms for merchant ships and sailors that dared to venture into pirate-infested international waters off Africa.

Does that make him guilty of piracy?

The question was the central argument Tuesday as a federal appeals court debated with an attorney seeking to overturn Shibin's piracy conviction and a government prosecutor arguing against it.

A three-judge panel of the 4th U.S. Circuit Court of Appeals is expected to issue an opinion in several weeks or longer in a case that could ultimately end up before the U.S. Supreme Court.

A federal judge sentenced Shibin last August to a dozen life sentences for his role in the hijacking of a German merchant vessel in 2010 that involved the torture of crewmembers to secure a higher ransom and the shooting deaths of four Americans aboard the yacht Quest in 2010.

Shibin has been called the top U.S. catch since it joined an international effort to combat piracy off Africa. That effort has brought nearly 20 bedraggled pirates for prosecution to Norfolk, where ships based at the huge naval base there have been deployed to combat the crimes.

James O. Broccoletti argued his client couldn't be convicted of piracy because he never set out on the high seas, a requirement set out by U.S. law. "He never left Somalia," he told the judges.

Define the "line, where does it cut off," for someone to be considered a pirate? asked Judge Paul V. Niemeyer. "I'm trying to find out what piracy is," he said.

Broccoletti responded that the crime must occur in international waters. "He never left the territorial water of Somalia," he said.

U.S. law governing piracy, which dates back nearly two centuries, defines piracy as boarding a ship at sea and robbing it. Since the U.S. began its crackdown in 2010, courts have come to conflicting conclusions on how the law should be interpreted.

The government maintains the U.S. statute incorporates broader international law and recognizes that piracy is an organized crime. That means it includes those who work onshore, such as Shibin, to research how much ransom a pirated vessel can come up with and to negotiate a payment for release.

"It's very difficult to get them," Assistant U.S. Attorney Benjamin Hatch told the judges. "It was very difficult to get Mr. Shibin. But we got him."

Broccoletti and Hatch, a lead prosecutor in the U.S. piracy convictions, each could barely string two sentences together as Niemeyer, Judge Diana Gribbon Motz and Judge Henry F. Floyd fired question after question at the two attorneys. The questioning, though, didn't signal which way they were leaning on the appeal. . . .

Prosecutors are seeking the death penalty against the three men charged with shooting the Americans on the Quest.

Eleven other men who boarded the yacht have pleaded guilty and been sentenced to life terms.

Quest owners Jean and Scott Adam of Marina del Rey, Calif., and friends Bob Riggle and Phyllis Macay of Seattle were the first Americans to be killed in pirate attacks in the Gulf of Aden and Indian Ocean.

Shibin also was involved in the piracy of the Marida Marguerite, a German-operated tanker carrying $10 million worth of fuel when it was hijacked in early May 2010.

Investigators said the Somali pirates tortured the 22 crewmembers "in indescribable ways" for hours at a time before receiving several million dollars' ransom and releasing the ship on Dec. 27, 2010.

Categories: External Articles

Is Obama Right that the IRS Is an “Independent Agency”?

by Publius
Posted May 15, 2013, 9:03 AM

Yesterday Eileen J. O'Connor commented at ExecutiveBranchReview, FedSoc's new blog devoted to executive branch regulatory activity:

On Friday, White House Press Secretary Jay Carney, and yesterday President Obama himself, declared that the Internal Revenue Service is an “independent agency.” Not so, unless they are redefining the term.

Most Executive Branch departments are headed by a Cabinet Secretary (except for the Department of Justice, which is headed by the Attorney General of the United States) who is nominated by the President and confirmed by the Senate. Within the Departments are agencies that carry out the various responsibilities of the Department. They, too, are headed by Senate-confirmed Presidential appointees. An “independent agency” is an agency of the federal government that is not part of an Executive Branch department. These are generally boards and commissions, like the National Labor Relations Board and the Federal Communications Commission.

But just as the Federal Bureau of Investigation is part of the Department of Justice, the Internal Revenue Service is part of the Department of Treasury. As with other federal agencies, each is headed by a Senate-confirmed Presidential appointee. Neither of these is an “independent agency.”

In 1976, to prevent another 48-year term of service like J. Edgar Hoover’s, Congress enacted Public Law 94-503, limiting the service of an FBI Director to a single term of no more than 10 years. Director Mueller is now completing a Congressionally-approved two-year extension of his ten-year term. Rather than find a new FBI Director, President Obama chose to hold over President Bush’s selection.

Effective in 1997, Congress enacted 26 USC 7803, creating a five-year term for the IRS Commissioner. Charles Rossotti was the first IRS Commissioner to be appointed to a five-year term. He was followed by Mark Everson, and then by Douglas Shulman, who left IRS when his term ended last November. Shulman had announced as early as April 2012 that he would not seek a second term. More than a year hence, the Administration has not nominated a successor.

Press Secretary Carney noted at his press briefing Friday, “The individual who was running the IRS at the time was actually an appointee from the previous administration.”

Can this mean the Administration subscribes to the axiom: “In politics, it’s not whether you win or lose, it’s how you place the blame”?

The Wall Street Journal similarly editorialized today:

One notable aspect of the Internal Revenue Service scandal is President Obama's strange view of accountability within the executive branch. In his Monday remarks addressing the targeting of conservative groups for tax-exempt scrutiny, Mr. Obama declared that the IRS is "an independent agency."

In his press briefing after the story broke on Friday, White House press secretary Jay Carney hit the same note. "The IRS is an independent enforcement agency with only two political appointees," he said.

The IRS is many things, but "independent" isn't one of them. It is formally part of the Treasury Department and is headed by the Commissioner of Internal Revenue, who is appointed by the President. The Commissioner is accountable to the President reporting through the Treasury Secretary.

The White House has also been at pains to stress that former Commissioner Douglas Shulman, who told Congress in 2012 that there had been no targeting of political groups, was appointed by George W. Bush. So the Commissioner is accountable to the President, as long as he's the former President? Or what?

This attempt to distance Mr. Obama from any control of the IRS is especially rich in light of the Administration's recent attempts to bend other genuinely independent agencies like the National Labor Relations Board (NLRB) and the Consumer Financial Protection Bureau (CFPB) to its will via non-recess recess appointments. The Administration is currently petitioning the Supreme Court to hear its appeal of the D.C. Circuit's decision declaring its NLRB recess appointments unconstitutional. . . .

Categories: External Articles

Second Circuit Rules NY Fire Dept. Did Not Intentionally Discriminate Against Minorities

by Publius
Posted May 14, 2013, 5:01 PM

According to the Daily News:

The U.S. Court of Appeals has rejected a Brooklyn judge's ruling that the city intentionally discriminated against minority applicants to the FDNY, and ordered a new bench trial before a different judge to determine that issue.

The panel of appellate judges, though, left in place the appointment of a court-ordered monitor to oversee the FDNY's efforts to recruit more minorities and develop anti-discrimination policies. But the FNDY can do their recuitment in-house instead of hiring outside consultants.

The decision is a victory for city lawyers, who argued that Federal Judge Nicholas Garaufis had wrongly accused Mayor Bloomberg of willfully failing to end discrimination in the predominantly white ranks of the fire department.

In an 82-page decision, the appellate judges noted that intentional bias is not proved so much by steps city officials did not take, rather by than intentional actions they undertook.

But the appellate decision left in place most of the Garaufis' remedies to cure the disparate treatment.

"We do not believe the cited omissions of the mayor or the (fire) commissioner suffice to support a reasonable inference that they declined to act because they wanted to discriminate against black applicants," the judges wrote.

"In light of the myriad duties imposed upon the chief executive of a city of eight million people, more evidence would be needed," to prove Bloomberg or any other city official intentionally tried to keep blacks and Hispanics out of the FDNY, the judges concluded.

The Justice Department under then President George Bush had filed suit in 2007 against the city alleging that two written exams for firefighter candidates were biased against minorities. The Vulcan Society of black firefighters later joined the suit in Brooklyn Federal Court.

Vulcans' lawyer Richard Levy said the appellate decision leaves untouched the $128 million in back pay and damages to minorities who were never hired from those two tests or their hiring was delayed.

"We are extremely pleased that the Second Circuit recognized significant problems in the manner in which the District Court handled the case," said Corporation Counsel Michael A. Cardozo. . . .

Categories: External Articles

Obama Administration Says Universities Must Implement Broad Speech Codes

by Publius
Posted May 14, 2013, 12:40 PM

Eugene Volokh, Gary T. Schwartz Professor at UCLA School of Law, writes at the Volokh Conspiracy:

The Justice Department’s Civil Rights Division and the Department of Education’s Office for Civil Rights is telling universities to institute speech codes. And not just any old speech codes: Under these speech codes, universities would be required to prohibit students from, for instance,

saying “unwelcome” “sexual or dirty jokes”
spreading “unwelcome” “sexual rumors” (without any limitation to false rumors)
engaging in “unwelcome” “circulating or showing e-mails of Web sites of a sexual nature”
engaging in “unwelcome” “display[] or distributi[on of] sexually explicit drawings, picture,s or written materials”
making “unwelcome” sexual invitations.

This is not limited to material that a reasonable person would find offensive. Nor is limited to material that, put together, creates a “hostile, abusive, or offensive educational environment.” (I think even speech codes that would have these requirements are unconstitutional, but the speech codes that the government is urging would in any event not have these requirements.) Every instance of such material of a “sexual nature,” under the government’s approach, would be “sexual harassment” and would need to be banned.

Why do I say this? The explanation has quite a few moving parts, because of how the government has articulated its theory. But here’s a brief summary. . . .

Categories: External Articles

Justice Department Obtained Associated Press Phone Records in Leak Investigation

by Publius
Posted May 14, 2013, 8:04 AM

The Washington Post reports:

In a sweeping and unusual move, the Justice Department secretly obtained two months’ worth of telephone records of journalists working for the Associated Press as part of a year-long investigation into the disclosure of classified information about a failed al-Qaeda plot last year.

The AP’s president said Monday that federal authorities obtained cellular, office and home telephone records of individual reporters and an editor; AP general office numbers in Washington, New York and Hartford, Conn.; and the main number for AP reporters covering Congress. He called the Justice Department’s actions a “massive and unprecedented intrusion” into newsgathering activities.

The aggressive investigation into the possible disclosure of classified information to the AP is part of a pattern in which the Obama administration has pursued current and former government officials suspected of releasing secret material. Six officials have been prosecuted, more than under all previous administrations combined.

In a letter to Attorney General Eric H. Holder Jr., the AP’s president and chief executive, Gary B. Pruitt, said that the Justice Department sought information beyond what could be justified by any specific probe and demanded that the government return the phone records and destroy all copies.

“There can be no possible justification for such an overbroad collection of the telephone communications of The Associated Press and its reporters,” Pruitt wrote to Holder. “These records potentially reveal communications with confidential sources across all of the newsgathering activities undertaken by the AP during a two-month period, provide a road map to AP’s newsgathering operations, and disclose information about AP’s activities and operations that the government has no conceivable right to know.”

The inquiry is one of two leak investigations ordered last June by Holder. The second involves a New York Times report about the Stuxnet computer worm, which was developed jointly by the United States and Israel to damage nuclear centrifuges at Iran’s main uranium-enrichment plant.

The two leak inquiries were started after Republicans in Congress accused the Obama administration of orchestrating news stories intended to demonstrate the president’s toughness on terrorism and improve his chance for reelection. The Republicans sought a special prosecutor, but Holder instead named two veteran prosecutors to handle the inquiries.

In the AP case, the news organization and its reporters and editors are not the likely targets of the investigation. Rather, the inquiry is probably aimed at current or former government officials who divulged classified information.

But experts said the scope of the records secretly seized from the AP and its reporters goes beyond the known scale of previous leak probes.

“This investigation is broader and less focused on an individual source or reporter than any of the others we’ve seen,” said Steven Aftergood, a government secrecy expert at the Federation of American Scientists. “They have swept up an entire collection of press communications. It’s an astonishing assault on core values of our society.” . . .

Categories: External Articles

Tomorrow 5/14: FedSoc Event and Webcast “Is the Patent System Working or Broken?”

by Publius
Posted May 13, 2013, 4:05 PM

Today, people read almost daily reports about the "broken patent system" in newspaper articles, blogs and at social media websites. Is this true? On the one hand, the high-tech and biotech industries seem awash in patent litigation, and Congress, the FTC, and the Supreme Court are considering adopting a variety of reform measures. On the other hand, the availability of patents and the property rights they secure are driving technological innovations once imagined only as science fiction - tablet computers, smart phones, genetically modified seeds, genetic testing for cancer, personalized medical treatments for debilitating diseases, and many others - and these technological marvels are now a commonplace feature of our lives.

A panel of distinguished jurists will discuss these two conflicting perspectives on whether the patent system today promotes or hampers innovation: Arthur Gajarsa, former Judge on the Court of Appeals for the Federal Circuit, Paul Michel, former Chief Judge of the Court of Appeals for the Federal Circuit, and Richard Posner, Judge of the Court of Appeals for the Seventh Circuit. The panel will be moderated by Douglas Ginsburg, former Chief Judge of the Court of Appeals for the D.C. Circuit and a Professor of Law at George Mason University School of Law.

The panelists have combined many years of experience in adjudicating patent cases, writing and speaking on patent or IP policy, and engaging with legal and policy issues closely connected with the patent system, such as antitrust and law and economics. With wide-ranging views on the current health of the patent system and the relevant solutions, the panel discussion will be insightful and illuminating. The event is co-sponsored by the Center for the Protection of Intellectual Property at George Mason University School of Law and the Federalist Society's Intellectual Property Practice Group.

Featuring:

Hon. Arthur J. Gajarsa, former Judge, U.S. Court of Appeals, Federal Circuit
Hon. Paul R. Michel, former Chief Judge, U.S. Court of Appeals, Federal Circuit
Hon. Richard A. Posner, Judge, U.S. Court of Appeals, Seventh Circuit
Hon. Douglas H. Ginsburg, Senior Circuit Judge, U.S. Court of Appeals, D.C. Circuit and Professor of Law, George Mason University School of Law - Moderator

Event details:

Start : Tuesday, May 14, 2013 12:00 PM

End : Tuesday, May 14, 2013 2:00 PM

Location: National Press Club, 529 14th St. NW, Washington, DC

This event will be webcast live.

Registration details: Registration for this event is now closed. There is no cost to attent this event. Lunch will be included. Please dial 202-822-8138 with any questions.

Categories: Upcoming Events

High Court Sides with Monstanto in Seed Case

by Publius
Posted May 13, 2013, 2:10 PM

Wired's Threat Level blog reports:

The Supreme Court on Monday for the first time backed patents for a self-replicating technology — Monsanto’s “Roundup Ready” soybeans — along with its licensing agreement that allows farmers to use them only once.

Regardless of how unnatural the conditions may seem, the licensing agreement with farmers also forbids the seeds to be resold for commercial planting, and they cannot be used for research, crop breeding or seed production.

Welcome to farming in the age of patented, genetically modified organisms, which in this case concerned soybean crops that withstand herbicide.

In the end, a unanimous Supreme Court found that intellectual property rights took precedent over nature. The high court ruled against an Indiana soybean farmer whom a lower court had ordered to pay $84,456 in damages and costs to Monsanto in 2009 for infringing its soy bean patents.

“If simple copying were a protected use, a patent would plummet in value after the first sale of the first item containing the invention,” Justice Elena Kagan wrote for the majority. “The undiluted patent monopoly, it might be said, would extend not for 20 years as the Patent Act promises, but for only one transaction. And that would result in less incentive for innovation than Congress wanted.” (.pdf)

Knox County farmer Vernon Bowman’s dirty deed? The 74-year-old bought soybean seed from a local grain elevator that was contaminated with the patented seed, which he used to produce beans on his 299 acres.

The case addresses the question of how far down the stream of commerce — in this instance the farming cycle — can a company control its patents, especially for products like soybeans that easily self-replicate. A lower court, an appeals court and even the President Barack Obama administration had maintained the stream is virtually endless.

The Supreme Court agreed.

“Were the matter otherwise, Monsanto’s patent would provide scant benefit,” Kagan wrote, adding: “Our holding today is limited—addressing the situation before us, rather than every one involving a self-replicating product.”

The Obama administration had told the Supreme Court in a filing that the justices should not concern themselves with the possibility that such rigid patent protectionism could undermine traditional farming techniques, where parts of one harvest are often used to produce the next. The administration said Congress “is better equipped than this court” (.pdf) to consider those concerns.

Monsanto had told the court that, if the justices sided with the farmer, such a decision would doom its business model.

“Without reasonable license restrictions prohibiting the replanting of second- and later-generation soybeans, Monsanto’s ability to protect its patented technology would effectively be lost as soon as the first generation of the product was introduced into the market,” the agriculture giant told the high court in a filing.

In April 2013, FedSoc's Environmental Law & Property Rights Practice Group and Intellectual Property Practice Group poduced a podcast on the case. The podcast featured:

Prof. Adam Mossoff, Professor of Law, George Mason University School of Law
Mr. Douglas T. Nelson, Executive Vice President, General Counsel and Secretary, CropLife America
Moderator: Mr. Dean A. Reuter, Vice President & Director of Practice Groups, The Federalist Society

Click here to listen to the recording.

Categories: Environmental Law & Property Rights Practice Group, Event Audio / Video, External Articles

Justice Ginsburg: Roe v. Wade Was Too Sweeping, Says Prefers “Judicial Restraint”

by Publius
Posted May 13, 2013, 10:52 AM

According to the AP:

One of the most liberal members of the U.S. Supreme Court, Justice Ruth Bader Ginsburg could be expected to give a rousing defense of Roe v. Wade in reflecting on the landmark vote 40 years after it established a nationwide right to abortion.

Instead, Ginsburg told an audience Saturday at the University of Chicago Law School that while she supports a woman's right to choose, she feels the ruling by her predecessors on the court was too sweeping and gave abortion opponents a symbol to target. Ever since, she said, the momentum has been on the other side, with anger over Roe fueling a state-by-state campaign that has placed more restrictions on abortion.

"That was my concern, that the court had given opponents of access to abortion a target to aim at relentlessly," she told a crowd of students. "... My criticism of Roe is that it seemed to have stopped the momentum that was on the side of change."

The ruling is also a disappointment to a degree, Ginsburg said, because it was not argued in weighty terms of advancing women's rights. Rather, the Roe opinion, written by Justice Harry Blackmun, centered on the right to privacy and asserted that it extended to a woman's decision on whether to end a pregnancy.

Four decades later, abortion is one of the most polarizing issues in American life, and anti-abortion activists have pushed legislation at the state level in an effort to scale back the 1973 decision.

Ginsburg would have rather seen the justices make a narrower decision that struck down only the Texas law that brought the matter before the court. That law allowed abortions only to save a mother's life.

A more restrained judgment would have sent a message while allowing momentum to build at a time when a number of states were expanding abortion rights, she said. She added that it might also have denied opponents the argument that abortion rights resulted from an undemocratic process in the decision by "unelected old men."

Ginsburg told the students she prefers what she termed "judicial restraint" and argued that such an approach can be more effective than expansive, aggressive decisions.

"The court can put its stamp of approval on the side of change and let that change develop in the political process," she said. . . .

Asked about the continuing challenges to abortion rights, Ginsburg said that in her view Roe's legacy will ultimately hold up.

"It's not going to matter that much," she said. "Take the worst-case scenario ... suppose the decision were overruled; you would have a number of states that will never go back to the way it was."

Categories: External Articles

Legal Scholars Argue that Police Right to Use Abandoned DNA Poses a Threat

by Publius
Posted May 13, 2013, 8:45 AM

The Boston Globe ran a lengthy article that begins:

Imagine you sto by a Starbucks one morning, and the shop is robbed only minutes after you leave. Witnesses say the perpetrator was drinking coffee, so investigators retrieve dozens of cups from the trash, looking for genetic evidence. When they analyze it, they may find the robber’s DNA, but they’re going to find many other people’s as well—including yours.

What can they do with that information?

Instinctively, it feels like the answer should be “nothing”—that the DNA is yours, and anyone who uses it without your permission has crossed a line. Those molecules contain data about your heritage, your appearance, your predisposition to disease—all kinds of secrets you had no intention to release to the world when you threw your cup away.

But the legal reality is something quite different: Your DNA has just entered a gray area.

“In general the idea is anything you intentionally relinquish to the public, to scavengers, in the garbage, is free for anyone,” said Elizabeth Joh, professor of law at the University of California Davis. This is true for your hard drive, your diary, your credit card statements—and it’s true for your DNA, regardless of whether you realize you’re casting it aside.

Legal scholars call this material “abandoned DNA,” and Joh is one of a handful of thinkers saying it’s time the law reckoned with what rights we have to this trove of extremely personal information. Detritus containing DNA was effectively useless to most people two decades ago. But today it is becoming faster and cheaper to sequence fragments of DNA—revealing the unique genetic material that begins to make us who we are—and the law has yet to catch up. State laws are a patchwork of regulations, and most jurisdictions, including Massachusetts, are mum about the privacy status of the DNA we leave behind us every day.

Legal scholars argue that the free-for-all status of abandoned DNA poses an immediate threat to our privacy, not just because of problems that might arise down the line, but because of abuses that are already possible. The problem is hard to solve because abandoned DNA doesn’t fit neatly into any of our existing legal categories: We have a strong expectation of privacy about our medical records, and state and federal laws increasingly protect genetic information; by contrast, simple property left behind belongs to anyone who picks it up. The DNA we leave behind is neither and both: It is garbage that also contains vital information. And right now, as far as the law is concerned, it is essentially fair game.

***

To the extent that the legal system is grappling with abandoned DNA, it’s chiefly in the criminal realm. Police are making more active use of DNA all the time, collecting and storing the information it contains, and a vigorous debate is underway about the privacy rights we have over our DNA in the context of an investigation. Later this spring the Supreme Court will decide, in the case Maryland v. King, whether the police can force a suspect to give a DNA sample when he or she has merely been arrested—but not yet convicted—for a crime.

“Abandoned DNA” comes into play when the police don’t have a DNA sample, and can’t force a suspect to give one up. In Washington in 2003, police posed as a fictitious law firm and sent a letter with a return envelope to a murder suspect named John Nicholas Athan, inviting him to participate in a fake class-action lawsuit. He replied, and police lifted DNA from Athan’s saliva on the seal of the envelope and used it to convict him of the killing. The Washington State Supreme Court reviewed the technique and ruled it permissible, explaining that as soon as a letter goes in the mail, “The envelope, and any saliva contained on it, becomes the property of the recipient.”

What might at first seem like clever police work strikes Joh as a very slippery slope. In treating DNA the same way we treat the envelope it came on, she suggests, we miss some important differences. First, DNA is uniquely hard to hang onto: It’s in stray hairs and on chewing gum, and we constantly give it away without choosing to. “What can a person do to so stop shedding DNA?” she asks. Second, there is a meaningful difference between physical objects that contain DNA and the information encoded on them. The former is just spit on the sidewalk; the latter reveals facts about us that we may not even want to know ourselves, and we’d like to think that the law can also make that distinction.

That might sound very subjective—that the difference between a molecule of gum and a molecule of DNA is how we feel about it—but privacy law does sometimes hinge on just that. In a landmark 1967 decision, the Supreme Court expanded Fourth Amendment rights, which prohibit illegal searches and seizures, to include what Justice John Harlan called the “reasonable expectation of privacy”—which, to genetic-privacy advocates, clearly applies to DNA. . . .

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Legal Scholars Argue that Police Right to Use Abandoned DNA Poses a Threat

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