FedSoc Blog

Pentagon Exploring Legal Action over Navy SEAL Book


by Publius
Posted August 31, 2012, 4:04 PM

The New York Times reports:

The Pentagon on Friday threatened legal action against the former member of the Navy SEALs who has written a first-person account of the raid that killed Osama bin Laden, but the author's lawyer and the book's publisher, Penguin, said they were proceeding with publication on Sept. 4.

The Pentagon press secretary, George Little, told reporters in a briefing on Friday that the book's author, Matt Bissonnette, was "in material breach of nondisclosure agreements he signed with the U.S. government" to not reveal classified information and to submit his book to the Pentagon for review.

Mr. Little said the Pentagon was "reviewing all options" against Mr. Bissonette, but he would not specify what those options might be and repeatedly declined to say whether the Pentagon had determined if there was classified information in the book.

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District Court in Ohio Enjoins Measure Restricting Early Voting


by Publius
Posted August 31, 2012, 1:54 PM

The Wall Street Journal Law Blog reports:

The Obama campaign scored a victory in Ohio Friday when a federal district judge blocked a measure in the swing state that restricted early voting.

The measure, passed by Ohio's Republican-controlled legislature, ended early in-person voting for most people on the Friday evening before Election Day - a Tuesday - but allowed military and overseas voters to cast ballots until the Monday before the elections.

The Obama campaign and Democrats challenged the measure in court on behalf of Ohio voters, arguing that it disproportionately affected minority and working class residents. The lawsuit said the measure infringed on the fundamental right to vote and violated the Constitution's Equal Protection Clause.

Ohio officials maintained the burden was slight and was necessary to alleviate the strain on elections boards caused by in-person early voting.

U.S. District Judge Peter Economus said plaintiffs "have a constitutionally protected right to participate in the 2012 election - and all elections - on an equal basis with all Ohio voters."

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Florida Appeals Court Orders New Judge for Accused Shooter of Trayvon Martin


by Publius
Posted August 30, 2012, 9:46 AM

The Palm Beach Post reports:

Circuit Judge Kenneth Lester will be removed from the case against George Zimmerman, the man accused of killing Trayvon Martin.

Zimmerman, a former neighborhood watch leader, said in an appeal that he fears Lester is biased against him and he wanted a new judge to preside over his case.

On Wednesday, Fifth District Court of Appeal ruled in his favor.

“Although many of the allegations in Zimmerman's motion, standing alone, do not meet the legal sufficiency test, and while this is admittedly a close call, upon careful review we find that the allegations, taken together, meet the threshold test of legal sufficiency. Accordingly, we direct the trial judge to enter an order of disqualification which requests the chief circuit judge to appoint a successor judge,” the court said in a newly released document.

Lawyers for Zimmerman filed the 28-page motion filled with reasons why Zimmerman doesn’t believe Lester will give him a fair trial.

The defense slammed Lester for repeated comments that Zimmerman was "manipulating the system” and for holding the possibility of more charges, including contempt of court.

The defense also challenged Lester's neutrality after he called the state's case "strong” and characterized Martin as an unarmed juvenile while the judge ignored evidence that Zimmerman yelled for help for 40 seconds and that Martin broke his nose and bloodied his head with blows against concrete.

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Eighth Circuit Backs Elementary School Religious Club


by Publius
Posted August 30, 2012, 8:01 AM

Education Week reports:

A federal appeals court has ruled that the Minneapolis school district likely engaged in impermissible viewpoint discrimination when it barred a religious club for elementary students from an after-school program open to other community groups.

A three-judge panel of the U.S. Court of Appeals for the 8th Circuit, in St. Louis, ruled unanimously in favor of the Child Evangelism Fellowship of Minnesota, a chapter of a Warrenton, Mo.-based Christian organization that sponsors after-school Good News Clubs, in which Bible lessons are delivered to club participants at public elementary schools across the country.

The Minnesota chapter operated such an after-school club for about eight years at Lind Elementary School in Minneapolis, first under a permit and later as a recognized "community partner," a designation for groups that have access to school facilities and to the district's flier-distribution system for communicating with students and families. Some community partners, including the Good News Club, the Boy Scouts, the Girl Scouts, and Boys & Girls Clubs, operated after-school programs at public school facilities.

In the 2008-09 school year, a new after-school site coordinator at Lind Elementary expressed concern about "prayer and proselytizing" at the Good News Club meetings. The club was informed it would be removed from the after-school program beginning in the next school year. That would mean the club would no longer have access to district transportation and food services, though it would remain a community partner and could still use school facilities at certain times.

The Child Evangelism Fellowship sued the district under the First and 14th Amendments, alleging that the removal from the after-school program violated its free-speech and equal-protection rights. A federal district court denied a preliminary injunction that would have restored the club's access, holding that groups participating in the after-school program were subject to the restrictions of the First Amendment's prohibition against government establishment of religion.

The 8th Circuit panel, in its Aug. 29 decision in Child Evangelism Fellowship of Minnesota v. Minneapolis Special School District No. 1, suggested that it was an easy matter to reverse the district court based on a U.S. Supreme Court decision and an earlier 8th Circuit precedent with similar facts.

In the 2001 case of Good News Club v. Milford Central School, the Supreme Court ruled that a New York state school district had engaged in viewpoint discrimination when it excluded the after-school religious club, and that permitting the club to meet on school grounds would not violate the establishment clause.

The 8th Circuit was ahead of that decision with a 1994 ruling that upheld the right of a Good News Club to meet in a Missouri public school.

In the new case, the 8th Circuit court panel said, "This is a relatively uncontroversial case of viewpoint discrimination."

The panel said it disagreed with the district court that the Minneapolis situation was different from that present in the Supreme Court case or the 1994 8th Circuit case because the Good News Club had access to resources of the Minneapolis district. The panel said there were no substantive distinctions between any of the cases. Also, the appellate panel disagreed with the district court's view that the school was sponsoring the Good News Club because of the club's participation in the after-school program and its access to certain resources.

"The Supreme Court and our court have both consistently held that this type of speech [by the Good News Club] is private speech, not school sponsored," the 8th Circuit court said. "Following this precedent, we hold that CEF's meetings, even as part of the after-school program, are not school sponsored."

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Citigroup Settles Subprime Class Action for $590 Million


by Publius
Posted August 29, 2012, 5:26 PM

The New York Times reports:

Citigroup said on Wednesday that it had agreed to pay $590 million to settle a class action lawsuit brought by shareholders who contended that they had been misled about the bank’s exposure to subprime mortgage debt on the eve of the financial crisis.

The shareholder lawsuit, originally filed in November 2007, alleged that former officers and directors of Citigroup had “concealed the company’s failure to write down impaired securities containing subprime debt” at a time when the collapse in the mortgage market made it apparent that banks including Citi would be adversely impacted. In late 2007, Citigroup wrote down billions of dollars on collateralized debt obligations tied to subprime debt, and reported a fourth-quarter loss of $9.83 billion that year.

In a statement on Wednesday, Citigroup, which denied the allegations, said: “Citi will be pleased to put this matter behind us. This settlement is a significant step toward resolving our exposure to claims arising from the period of the financial crisis.”

It added, “Citi is fundamentally a different company today than at the beginning of the financial crisis.”

The proposed settlement, which needs to be approved by Judge Sidney H. Stein of the Federal District Court in Manhattan, covers investors who bought Citi shares from Feb. 26, 2007, through April 18, 2008. Shares of Citigroup traded as high as $55 in the summer of 2007. By March 2008, its stock price had tumbled by more than half.

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D.C. Circuit Rejects GOP-Drawn Texas Voting Maps


by Publius
Posted August 29, 2012, 1:31 PM

ABC News has the story:

Stadiums and hospitals removed from the districts of black congressional members and country clubs newly drawn into those of white incumbents. A lawyer emailing "No bueno" to a Republican staffer about plans that risked leaving a paper trail and jeopardizing the legality of a voting map.

Those were among the evidence a Washington federal court used to determine that Texas Republican lawmakers discriminated against minorities while drawing new political boundaries, throwing out the maps as violations of the Voting Rights Act but likely not in time to affect the November elections.

The decision Tuesday by the U.S. District Court for the District of Columbia is instead likely to reverberate in 2014, when some Texans could find their congressional and statehouse districts changed for the third time in five years.

The long-awaited ruling was hailed as a sweeping victory by minority rights groups that sued the state after the Republican-controlled Legislature pushed through new redistricting maps last year. Texas Attorney General Greg Abbott called the decision "flawed" and vowed to appeal to the U.S. Supreme Court.

"Better late than never," said Luis Vera, attorney for the League of United Latin American Citizens, one of the groups that sued the state. "It's a hell of a victory."

The court concluded that the maps didn't comply with the federal Voting Rights Act. In a 154-page opinion handed down nearly seven months after a Washington trial, the three-judge panel ruled that state attorneys failed to prove that Texas lawmakers did not draw new congressional and state Senate districts "without discriminatory purposes."

In some cases, the court wrote, black congressional members in Texas had economic drivers such as sporting arenas freshly carved out of their districts, though "no such surgery" was performed on any belonging to white incumbents.

"Anglo district boundaries were redrawn to include particular country clubs and, in one case, the school belonging to the incumbent's grandchildren," said U.S. Circuit Judge Thomas Griffith, writing the opinion for the panel.

On the state Senate map, the judges said, one email sent to a leading Republican mapmaker indicated that staffers "feared their actions might create the appearance of impropriety" under voting rights laws. In the email, a lawyer advised "No bueno" to a plan that risked leaving a paper trail showing that some proposed changes were never going to be considered.

The court found no "direct evidence" that discrimination was behind how the maps were drawn — no emails or letters, for instance, that reveal state officials plotting to suppress minority voting. The panel instead looked to circumstantial evidence and then inferred an intent to discriminate.

Abbott said Tuesday's ruling "extends the Voting Rights Act beyond the limits intended by Congress and beyond the boundaries imposed by the Constitution."

With just two months until Election Day, the fallout from the ruling is unlikely to be felt until new maps are installed for 2014. Instead, voters in Texas this November will use interim political maps drawn last year by a different three-judge panel in San Antonio.

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Richard Epstein on Hayek as Paul Ryan’s Intellectual Muse


by Publius
Posted August 29, 2012, 8:22 AM

Professor Richard A. Epstein writes at the Hoover Institute's Defining Ideas:

My last column for Defining Ideas, “Franklin Delano Obama,” stressed the dangers of Franklin Roosevelt’s “Second Bill of Rights,” which was long on rights but short on any articulation of their correlative duties. Roosevelt’s program works well everywhere except in a world of scarce resources, which, alas, is the only world we will ever know.

Fortunately, Roosevelt quickly met with some determined intellectual resistance. In 1944, when Roosevelt unveiled his “Second Bill of Rights,” Friedrich von Hayek, an Austrian economist, political theorist, and future Nobel Prize winner, wrote The Road To Serfdom. That book rightly became a sensation both in England and in the United States, especially after the publication of its condensed version in The Reader’s Digest in April 1945. Hayek’s basic message was the exact opposite of Roosevelt’s. He was deeply suspicious of government intervention into markets, thinking that it could lead to economic stagnation on the one hand and to political tyranny on the other.

Hayek has never been out of the news. But, right now, his name has been batted around in political circles because Paul Ryan, the Republican Vice-Presidential nominee, has acknowledged that he regards Hayek as one of his intellectual muses. That observation brought forward in the New York Times an ungracious critique (called “Made in Austria” in the print edition) of both Hayek and Ryan by Adam Davidson, a co-founder of NPR’s Planet Money. Davidson’s essay reveals a profound misunderstanding of Hayek’s contribution to twentieth-century thought in political economy.

Davidson leads with a snarky and inaccurate comment that, “A few years ago, it was probably possible to fit every living Hayekian into a conference room.” But it is utterly inexcusable to overlook, as Davidson does, Hayek’s enduring influence.  A year after the Road to Serfdom came out, Hayek published his 1945 masterpiece in the American Economics Review, “The Use of Knowledge in Society,” which has been cited over 8,600 times. In this short essay, Hayek explained how the price system allows widely dispersed individuals with different agendas and preferences to coordinate their behaviors in ways that move various goods and services to higher value uses.

Alas, Davidson’s dismissive account of Hayek does not mention even one of Hayek’s major contributions to weaning the United States and Great Britain from the vices of centralized planning. Thus Hayek’s 1940 contribution to the “Socialist Calculation” debate debunked the then-fashionable notion that master planners could achieve the economic nirvana of running a centralized economy in which they obtain whatever distribution of income they choose while simultaneously making sound allocations of both labor and capital, just like in Soviet Russia.

Hayek exposed this fool’s mission by stressing how no given individual or group could obtain and organize the needed information about supply and demand conditions throughout the economy. The virtue of the price system was its use of a common unit of measurement—money—to allow various actors to compete for a given resource without having to lay bare why they need any particular good or service. The seller need only accept the highest bid, without nosing around in other people’s business. The interaction between buyers and sellers allows for constant incremental adjustments of both price and quantity. Old information gets updated in a quick and reliable way, thereby eluding the administrative gauntlet of the socialist state.

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Minnesota Supreme Court Allows Voter ID Question on November Ballot


by Publius
Posted August 28, 2012, 5:35 PM

JURIST reports:

The Minnesota Supreme Court ruled Monday that a question on voter identification can be put to referendum in November, disregarding protests from the American Civil Liberties Union of Minnesota (ACLU-MN). The ACLU-MN challenged the initiative in May, claiming that the ballot initiative, which would amend the Minnesota constitution [text] to require photo ID in order to vote, is worded in "a manner that is misleading, confusing and unclear." The Supreme Court unanimously rejected these concerns:

But petitioners argue, among other things, that the ballot question is misleading because there is a difference between "valid government-issued photographic identification," as required in the proposed amendment, and "valid photographic identification," as required in the ballot question. We agree with petitioners that there is a difference between a "government-issued photographic identification," and a "valid photographic identification." That the ballot question reads differently than the proposed amendment, however, does not render the ballot question "'so unreasonable and misleading as to be a palpable evasion of the constitutional requirement to submit'" the proposed constitutional amendment" 'to a popular vote.'"

Petitioners also argue that the ballot question is misleading because it indicates that "all voters" will be required to present "valid photographic identification," when in fact, according to petitioners, the proposed amendment requires that only some voters (namely, those voting in person) present valid photographic identification. This argument is unpersuasive. Petitioners read the ballot question as narrowly referencing only the obligations placed by the proposed amendment on voters voting in person, and therefore conclude that the question is misleading because it states that the proposed amendment will require all voters to present photographic identification. But the ballot question does not refer specifically to only the portion of the proposed amendment that will affect voters voting in person, and petitioners are simply wrong in arguing that the proposed amendment requires only those voting in person to submit photographic identification.

Although the court was unanimous that the ballot initiative was not misleading, two judges dissented on the grounds that the ballot initiative is harmful and constricts constitutional rights otherwise, one particularly calling it a "bait and switch." The ACLU-MN lambasted the opinion [press release], saying, "Not only is this part of a wave of laws that have already had a severe impact on the right to vote nationwide, but this particular amendment effectively spells the end of Election Day registration, which significantly increases turnout."

The text of the initiative, which will appear on the November ballot as planned, is as follows: "Shall the Minnesota Constitution be amended to require all voters to present valid photo ID to vote and to require the state to provide free identification to eligible voters, effective July 1, 2013?"

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Former Judge Vaughn Walker on “Moving the Strike Zone”


by Publius
Posted August 28, 2012, 11:51 AM

Ed Whelan writes at NRO's Bench Memos:

Chief Justice Roberts’s analogy of judging to umpiring obviously did not intend to provide a comprehensive account of what judging entails. Rather (as Ramesh Ponnuru explained more fully in this National Review essay), the Chief Justice’s analogy memorably captured the judge’s duty of impartiality.

Anyone who overstates what the Chief Justice’s analogy was intended to convey can find ample ground for disputing the aptness of the hyperextended analogy. So it’s no surprise that former district judge Vaughn R. Walker, whose consistent pattern of malfeasance in the Prop 8 case amounts to what may be the most egregious performance ever by a federal district judge, makes some sound observations in his recently published lecture titled “Moving the Strike Zone: How Judges Sometimes Make Law.” That said, it’s quite telling—and explains a lot about his Prop 8 misconduct—that Walker summarizes his view of what judges “must do” as “take account of the pitcher and the batter in the legal arena, watch the windup, the throw, the curve, and the delivery and then, where they believe appropriate, move the strike zone.” (Page 1223 (emphasis added).)

There’s the basic choice: between a judge who understands his obligation to be to impartially call balls and strikes against a pre-defined strike zone and a judge, like Walker, who considers himself free to “move the strike zone” whenever he believes it “appropriate” to do so.

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Murder Defendant Claims MRI Scan Indicates He Didn’t Kill; Judge Disallows Evidence


by Publius
Posted August 28, 2012, 7:52 AM

The ABA Journal reports:

A former Army Ranger accused of killing a colleague claims a functional MRI scan indicates he was telling the truth when he asserted his innocence.

The defendant, Gary Smith, has long maintained that fellow Army Ranger Michael McQueen committed suicide, the Washington Post reports. Smith’s lawyer argued in a pretrial hearing that the scan from a company called No Lie MRI should be allowed, but Judge Eric Johnson of Montgomery County won’t allow the evidence. Johnson said the issues were “absolutely fascinating” but “brilliant people” don’t agree on whether the results can be trusted.

Smith and McQueen shared an apartment. Smith reported his roommate’s death in 2006 from a gunshot wound, but police didn’t find the weapon, the story says. Smith gave police three different accounts of what happened, one involving possible suspects with a grudge, and two involving suicide while Smith was or wasn’t at home. Smith said he panicked because McQueen used Smith's gun, and he threw the weapon in a nearby lake.

Smith’s original conviction in a 2008 trial was overturned because the trial judge refused to allow evidence that McQueen appeared depressed after an arrest on a DUI charge.

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Is There Too Little Political Diversity Among University Faculty?


by Publius
Posted August 27, 2012, 3:54 PM

Ruth Wisse writes in the Wall Street Journal:

Four years ago at the beginning of Harvard's school term, I was going over an assignment with a freshman when she confessed that she was feeling guilty—because she was working for the Obama campaign. I assumed she meant that her campaign work was taking too much time from her studies, but she corrected me: She was feeling guilty because she supported John McCain.

So why, I asked, was she working for his opponent? She answered: "Because I wanted so badly to get along with my roommates and with everyone else."

Few of us survive adolescence without some conflict of the kind experienced by this freshman and dramatized by Tom Wolfe in his novel "I Am Charlotte Simmons" (2004): the conflict between the demands of new surroundings and the moral beliefs and values one brings from home. Every environment dispenses its conventional wisdom, and swimming against the current is always hard. But our freshman's predicament was driven by an exaggerated impression of "everyone else."

In fact, student opinion at elite schools has lately been growing more varied. Conservatives in particular have become more outspoken. Harvard's Republican Club includes libertarians, fiscal conservatives, and social conservatives, who sometimes find common cause and sometimes don't. The Right to Life caucus is a natural ally, though not all Republicans support its views on abortion.

Then there is the True Love Revolution, a Harvard group formed in 2006 "to give students a moral and political option in issues relating to sex and marriage." Its members believe that liberationist attitudes toward sex, sexuality, and relationships damage students' health and well-being.

At Yale, where the Party of the Right has been a conservative and libertarian redoubt since the 1950s, feisty undergraduates have founded a new group to promote "genuine intellectual diversity" in the face of excessive ideological uniformity. Named for one of Yale's most famous mavericks, the William F. Buckley Jr. Program takes its motto from the mission statement of Buckley's magazine, National Review, standing against "the conformity of the intellectual cliques," and supporting "excellence (rather than 'newness')" and "honest intellectual combat."

In brief, political independence is alive and well, at least among students.

Nowadays, the pressure for conformism comes more from the faculty, which tips Democratic like the Titanic in its final throes. Programs that once upheld the value if not the practice of intellectual diversity tend to function more like unions, trying to keep their membership in line. Some professors make a habit of insulting Republican candidates and conservative ideas with the smirking assurance of talk-show hosts, unaware that their laugh lines reap from some students the contempt that they sow.

The increased political conformism at universities may be traced in part to the redefinition of diversity that accompanied the introduction of group preferences, aka "affirmative action." Schools instituting this policy never acknowledged that it conflicted with competing commitments to equal consideration "irrespective of race, religion, or gender," or that at least half the country questioned its wisdom.

In part the policy has become a joke, with claimants to 1/32nd Cherokee heritage gaining preferential treatment as minority hires. What is not a joke is that the meaning of "diversity" has shifted from the intellectual to the racial-ethnic sphere, foreclosing discussion of certain subjects like affirmative action, gender differences and everything considered politically incorrect.

Thus, the current Guide to the First Year at Harvard alerts incoming students to orientation programs in diversity designed to build connections within and across "nationality, race, ethnicity, gender, sexual orientation, class, physical ability, and religion." Characteristically and tellingly absent from the list is political or intellectual diversity.

Those who established higher education in this country knew that constitutional democracy was not biologically transmitted, but would have to be painstakingly nurtured in every new cohort of students. When schools dropped requirements for compulsory attendance at religious services and subjected all certainties to critical scrutiny, the schools may have assumed that faculty would find more creative ways of teaching the foundational texts and of rehearsing the debates inspired by those texts. Conservative students—and not they alone—long for exposure to the ideational diversity of Jefferson and Hamilton, Jesus and the Grand Inquisitor, Marx and Hayek, liberal and conservative. They want a campus where a professor who says he votes Republican isn't considered either courageous or crazy.

The pity is that, so far, students who desire such a campus will have to work for its transformation on their own.

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Second Circuit Upholds Life Sentence for Bin Laden Aide Who Stabbed Prison Guard


by Publius
Posted August 27, 2012, 11:50 AM

The Washington Post reports:

A federal appeals court on Friday upheld the life sentence given to a former Osama bin Laden aide who stabbed a federal prison guard in the eye even though it agreed there should have been greater efforts for him to attend his sentencing so he did not have to watch the proceeding on a video monitor.

The 2nd U.S. Circuit Court of Appeals in Manhattan said Mamdouh Mahmud Salim’s right to be present at his resentencing hearing two years ago was violated but that the error was not severe enough to warrant another sentencing.

U.S. District Judge Deborah Batts had imposed the life sentence for what she called his “unusually cruel, brutal” attack in 2000 on guard Louis Pepe. The attack occurred at the Metropolitan Correctional Center in lower Manhattan as Salim awaited trial in the August 1998 bombings of two U.S. embassies in Africa. The attacks killed 224 people, including a dozen Americans. Before the Sept. 11 attacks, Salim was believed to be the highest-ranking al-Qaida member held in the United States.

Salim, 54, challenged the fact that he only appeared at sentencing on video and said there were technical difficulties in the videoconference link from the prison where he was housed.

“Although it is an issue of first impression in this circuit, every federal appellate court to have considered the question has held that a defendant’s right to be present requires physical presence and is not satisfied by participation through videoconference,” the appeals court wrote. Still, it added: “In these circumstances, Salim was not prejudiced.”

A defense lawyer and prosecutors did not immediately comment on the ruling.

The stabbing left Pepe brain-damaged and blind in one eye. Besides the prison sentence, Batts had ordered Salim to pay $4.72 million in restitution to cover the medical expenses for Pepe’s continuing rehabilitation.

The resentencing occurred because the appeals court found that the judge’s original sentence in 2004 of 32 years in prison did not properly consider the terrorism aspects of the offense.

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Jurors Grappled With Complex Patent Issues in $1B Apple vs. Samsung Trial


by Publius
Posted August 27, 2012, 7:52 AM

The Huffington Post reports:

The youngest juror, a 24-year-old whose favorite court attire was T-shirts bearing the names of rock bands, chose a Beatles sweatshirt for Friday's dramatic unveiling of the $1.05 billion verdict in favor of computer titan Apple Inc. One of the oldest was a retired electrical engineer who, as foreman, signed the unanimous verdict that South Korea's Samsung Electronics Co. copied Apple's patented technology for the iPhone and iPad. Among the other seven jurors were a homemaker, a bicycle shop manager and a U.S. Navy veteran.

The decision Friday by this panel of people from many walks of Silicon Valley life was one that experts say could dramatically alter the future of computer tablet and phone design if the verdict stands. But the case also is part of a trend that has accompanied an explosion in the number of patent infringement cases, especially in the technology sector.

Increasingly, these highly complex disputes are being decided by juries, rather than judges, and the juries tend to issue more generous awards for patent violations.

That has companies on the receiving end of successful patent infringement lawsuits crying foul and calling for reform in the patent system, but it also has some legal experts questioning whether ordinary citizens should be rendering verdicts and fixing damages in such high-stakes, highly technical cases.

"That's a great question ... and it's the subject of a fair amount of current debate," said Notre Dame University law professor Mark McKenna.

Deliberations in the Apple v. Samsung battle were far more challenging than most. The jury was confronted with hundreds of questions on a 20-page verdict form that was more complicated than a U.S. tax return. They had in the jury room more than two dozen electronic devices at issue, 12 patents to decipher and 109-pages of instructions from the judge on rendering a verdict.

"This case is unmanageable for a jury," Robin Feldman, an intellectual property professor at the University of California Hastings Law School, said before the verdict. "There are more than 100 pages of jury instructions. I don't give that much reading to my law students. They can't possible digest it."

"The trial is evidence of a patent system that is out of control," Feldman said. "No matter what happens in this trial, I think people will need to step back and ask whether we've gone too far in the intellectual property system."

Apple filed suit in April 2011, accusing Samsung of essentially selling illegal knockoffs of its popular iPhones and iPads. Apple demanded $2.5 billion in damages and an order barring U.S. sales of the Samsung products in question. Samsung countered with its own claims, accusing Apple of using wireless technology it owned.

The jury rejected Samsung's claims and refused to award Apple the maximum amount demanded, finding that fewer Samsung products violated Apple's patent than alleged.

The jury arrived at its verdict after less than three days of deliberations, far swifter than many experts thought in view of the many complex issues.

The foreman, Velvin Hogan, a 67-year-old electrical engineer, told the San Jose Mercury News on Saturday that the panel was methodical. "We didn't whiz through this," said Hogan, who relied on his own experience patenting inventions. "We took it very seriously."

Hogan, who does not own Apple products, said the first task was to determine if Apple's patents were valid. Using his own experience getting a patent, Hogan said he had a revelation on first night of deliberations while watching television. "I was thinking about the patents, and thought, 'If this were my patent, could I defend it?'" Hogan recalled. "Once I answered that question as yes, it changed how I looked at things."

The jury did not completely grant Apple's demand for at least $2.5 billion, Hogan said, but they "wanted to send a message to the industry at large that patent infringing is not the right thing to do, not just Samsung."

Although the jurors all promised to weigh the evidence fairly, jury consultant Ellen Brickman said Samsung started out the underdog for several reasons. Apple is based just 10 miles (16 kilometers) from the courthouse, jurors have a predisposition to side with patent holders, and Samsung is a foreign-based company fighting a domestic outfit during tough economic times.

Finally, she noted that many Americans view Apple and its late founder Steve Jobs as legendary innovators. "Apple changed the world when it came to computers. Apple changed the world when it came to phones," she said.

Samsung has vowed to fight the case all the way to the U.S. Supreme Court. It will first ask the trial judge to toss the verdict. Failing that, Samsung will appeal to the Court of Appeals for the Federal Circuit in Washington D.C., a specialized court that hears nearly all patent appeals.

Apple itself benefited from a judge last year reversing a jury's verdict in a patent trial in Tyler, Texas. A jury had awarded software company Mirror Worlds $625.5 million after concluding Apple infringed three patents related to how documents are displayed on computer screens.

"Mirror Worlds may have painted an appealing picture for the jury, but it failed to lay a solid foundation sufficient to support important elements it was required to establish under the law," U.S. District Judge Leonard Davis wrote in April 2011 in tossing out the jury's verdict.

The number of jury trials, as opposed to "bench" trials presided over exclusively by a judge, has greatly increased in the last 20 years, a 2011 PriceWaterhouseCoopers study concluded. It found that only 14 percent of patent trials were held before juries in 1980, 25 percent in 1990 and nearly 60 percent since 2000.

The consultants attributed that dramatic rise in part to a tendency of juries to award higher damages than judges. The average jury award was a little more than $10 million during the last decade while the average award after a bench trial was barely more than $1 million.

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Stem Cell Funding Challenge Tossed by U.S. Appeals Court


by Publius
Posted August 24, 2012, 2:38 PM

According to the Associated Press:

A federal appeals court on Friday refused to order the Obama administration to stop funding embryonic stem cell research, despite complaints the work relies on destroyed human embryos.

The U.S. Circuit Court of Appeals for the District of Columbia upheld a lower court decision throwing out a lawsuit that challenged federal funding for the research, which is used in pursuit of cures to deadly diseases. Opponents claimed the National Institutes of Health was violating the 1996 Dickey-Wicker law that prohibits taxpayer financing for work that harms an embryo.

But a three-judge appeals court panel unanimously agreed with a lower court judge's dismissal of the case. This is the second time the appeals court has said that the challenged federal funding of embryonic stem cell research was permissible.

"Dickey-Wicker permits federal funding of research projects that utilize already-derived ESCs — which are not themselves embryos — because no 'human embryo or embryos are destroyed' in such projects," Chief Judge David B. Sentelle said in the ruling, adding that the plaintiffs made the same argument the last the time the court reviewed the issue. "Therefore, unless they have established some 'extraordinary circumstance,' the law of the case is established and we will not revisit the issue."

Researchers hope one day to use stem cells in ways that cure spinal cord injuries, Parkinson's disease and other ailments. Opponents of the research object because the cells were obtained from destroyed human embryos. Though current research is using cells culled long ago, opponents say they also fear research success would spur new embryo destruction. Proponents say the research cells come mostly from extra embryos that fertility clinics would have discarded anyway.

The lawsuit was filed in 2009 by two scientists who argued that Obama's expansion jeopardized their ability to win government funding for research using adult stem cells — ones that have already matured to create specific types of tissues — because it will mean extra competition.

President George W. Bush also permitted stem cell research, but limited the availability of taxpayer funds to embryonic stem cell lines that were already in existence and "where the life and death decision has already been made." Obama's order removed that limitation, allowing projects that involve stem cells from already destroyed embryos or embryos to be destroyed in the future. To qualify, parents who donate the original embryo must be told of other options, such as donating to another infertile woman.

Sentelle also rejected the opponent's two other arguments: that the same federal law prohibits funding for projects where embryos are "knowingly subjected to risk of injury or death," and that NIH issued guidelines on the funding without responding to complaints about the research.

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D.C. Circuit Strikes Down Graphic Warnings on Cigarettes


by Publius
Posted August 24, 2012, 11:59 AM

CNBC reports:

A U.S. appeals court on Friday struck down a law that requires tobacco companies to use graphic health warnings, such as of a man exhaling smoke through a hole in his throat.

The 2-1 decision by the court in Washington, D.C., contradicts another appeals court's ruling in a similar case earlier this year, setting up the possibility the U.S. Supreme Court will weigh in on the dispute.

The court's majority in the latest ruling found the label requirement from the U.S. Food and Drug Administration violated corporate speech rights.

"This case raises novel questions about the scope of the government's authority to force the manufacturer of a product to go beyond making purely factual and accurate commercial disclosures and undermine its own economic interest -- in this case, by making 'every single pack of cigarettes in the country mini billboard' for the government's anti-smoking message," wrote Judge Janice Rogers Brown of the U.S. Court of Appeals for the District of Columbia Circuit.

The FDA "has not provided a shred of evidence" showing that the graphic labels would reduce smoking, Brown added.

Five tobacco companies representing most of the major cigarette makers in the United States challenged the FDA rules: Reynolds American Inc, Lorillard Inc; Commonwealth Brands Inc, which is owned by Britain's Imperial Tobacco Group Plc; Liggett Group LLC and Santa Fe Natural Tobacco Co Inc.

The FDA has argued the images of rotting teeth and diseased lungs are accurate and necessary to warn consumers -- especially teenagers -- about the risks of smoking.

The health agency said on Friday that it does not comment on possible, pending or ongoing litigation. The U.S. Department of Justice, which argued the case for the FDA, said it needs to review the ruling before deciding on next steps.

The Campaign for Tobacco-Free Kids, which has vigorously supported stricter cigarette laws, urged the government to appeal.

"Today's ruling is wrong on the science and law, and it is by no means the final word on the new cigarette warnings," said Matthew Myers, the group's president, in a statement.


The Centers for Disease Control and Prevention estimates some 45 million U.S. adults smoke cigarettes, which are the leading cause of preventable death in the United States. And the World Health Organization predicts smoking could kill 8 million people each year by 2030 if governments do not do more to help people quit.

The U.S. Surgeon General warned in March that youth smoking has reached epidemic proportions, as one in four U.S. high school seniors is a regular cigarette smoker, paving the way to a lifetime of addiction.

Judge Judith Rogers, who wrote the dissenting opinion, said the FDA warnings were factual, and necessary to counter tobacco companies' history of deceptive advertising.

"The government has an interest of paramount importance in effectively conveying information about the health risks of smoking to adolescent would-be smokers and other consumers," she wrote.

Congress passed a law in 2009 that gave the FDA broad powers to regulate the tobacco industry, including imposing the label regulation. The law requires color warning labels big enough to cover the top 50 percent of a cigarette pack's front and back panels, and the top 20 percent of print advertisements.

The FDA released nine new warnings in June 2011 that were meant to go into effect this September, the first change in U.S. cigarette warning labels in 25 years. Cigarette packs already carry text warnings from the U.S. Surgeon General.

The ruling against the FDA means tobacco companies will likely not have to comply with the requirements for now, given divergent court rulings.

The U.S. Appeals Court for the 6th Circuit, based in Cincinnati, upheld the bulk of the FDA's new tobacco regulations in March, including the requirement for warning images on cigarette packs.

The difference in the two cases is that the FDA had not introduced the specific images when the companies filed the 6th Circuit suit. While the Washington suit focused on the images, the appeals court in Cincinnati addressed the larger issue of the FDA's regulatory power.

Most countries in the European Union already carry graphic images to illustrate the health risks of smoking. Earlier this month, Australia took a further step to limit smoking advertising by banning company logos on cigarette packs, and the EU said it was considering a similar ban.

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