FedSoc Blog

According to Thomson Reuters:

Once upon a time, ordinary lawyers appeared at the U.S. Supreme Court. If, by some chance, their client's case defied long odds and made it onto the justices' docket, lawyers who'd been on the litigation from its start would make a once-in-a-lifetime argument to the highest court in the land. Those days are mostly gone. As my brilliant Reuters colleague Joan Biskupic discussed Tuesday in a story about the competition to represent a pro se plaintiff whose petition for certiorari was granted last year, arguments at the Supreme Court have come to be the near-exclusive province of lawyers who specialize in this high-prestige, high-profile practice.

A case that the justices agreed Monday to hear in their upcoming term shows that the elite Supreme Court bar actually seems to be on the lookout for issues that will attract the justices' attention even before cert petitions are filed. The case, Ray Haluch Gravel v. Central Pension Fund, raises the question of whether a federal district court's ruling on the merits that leaves unresolved a request for contractual attorneys' fees is a final decision - and thus appealable - or whether the decision is not appealable until the court has ruled on contractual attorneys' fees. That's a matter of consequence for parties deciding when to file their appeals, but certainly not a huge constitutional battle. Nor are the sums of money at issue - at most, about $350,000 in supposedly unpaid union contributions and attorneys' fees - particularly notable, except for the Massachusetts landscaping company and union fund involved in the case. Both the landscaper and the union were represented in federal district court in Boston and at the 1st Circuit Court of Appeals by regional firms with fewer than 50 lawyers.

Yet both had top-notch Supreme Court counsel for their cert filings: Mayer Brown for Ray Haluch and the University of Pennsylvania Supreme Court Clinic for the union. Dan Himmelfarb of Mayer Brown and Stephanos Bibas of Penn declined to comment, but it's a good bet that when the 1st Circuit issued its decision last September, noting a deep split in the federal circuits on whether contractual attorneys' fees are collateral to the merits of a case, the Supreme Court bar suddenly became interested in an otherwise modest dispute between a small business and the union representing a few of its employees.

The question presented to the court is closely related to one the justices decided in their 1988 ruling in Budinich v. Becton Dickinson. In that opinion, the court held that statutory attorneys' fees are "collateral to and separate from" the merits of a case, so that when a trial court issues a damages ruling before a ruling on statutory attorneys' fees, the clock for an appeal on the merits starts ticking when the first ruling is entered, not when the fee judgment is rendered. Rather surprisingly, even after the Budinich decision there has been enough uncertainty about whether the same reasoning applies to contractual attorneys' fees to create deep divisions among the federal circuits. In the Ray Haluch case, the 1st Circuit agreed with the 3rd, 4th and 8th Circuits that contractual attorneys' fees are sometimes collateral to the final decision - but said that in this case, the fee award was wrapped up in the merits decision, so that even though the union didn't appeal until more than 30 days after the district court's judgment on its underlying contribution claim, its appeal was timely because it came within 30 days of the trial judge's ruling on fees.

But as Mayer Brown's cert petition for the landscaper explains, five of the other circuits have reached different conclusions. The 11th Circuit has said that contractual fees are never collateral to the merits. The 2nd, 5th, 7th and 9th Circuits have held that they always are. . . .

The Huffington Post reports:

Predicting the outcome of Supreme Court decisions is a bit of a fool's errand, as most people who tried to do so before last year's ruling on the Affordable Care Act can attest. But if anyone has a good sense for how the nine justices will rule, it's the lawyers who argued the cases before them.

On Tuesday, David Boies, one half of the star legal duo that argued the same-sex marriage case before the court, offered a few insights into how he thinks the ruling will come down. He stressed that he never predicts the actual outcome of a case, but his comments were still illustrative.

Boies conceded that proponents of Proposition 8, the California law banning same-sex marriage, could end up losing because the court will rule that they were ineligible to appeal a lower court ruling that the law was unconstitutional. A victory on those grounds would be a victory for Boies and his fellow lawyer Ted Olson, but not the one they wanted.

"The question is, do those people have a standing to come before the court and defend it? Under Supreme Court precedent, they probably do not have standing," Boies said. "The court is very restrictive in terms of to whom they grant standing, and they never granted standing to private citizens who do not have a fiduciary relationship to the state. And one way that the court could solve this particular case is to hold that these people do not have standing."

Under this scenario, same-sex marriage would be made legal in California, but the issue of it is a constitutional right would be left unaddressed. Other states, in short, would be unaffected.

Boies also said that he felt the Court would have to piece together a final decision from various opinions, rather than coalesce around a single ruling. The case wasn't as clear as the challenge to the Defense of Marriage Act -- the other same-sex marriage decision waiting a verdict -- and it would likely require some dexterity on the part of the justices to get to a majority, Boies said.

"I think you are less likely to have a fractured court in the DOMA case than in the marriage equality case," he said. "I think that the DOMA case, you are likely to have at least five justices, maybe more, all coming together in one opinion. In marriage equality, you might end up where you don't have five justices signing on to any one opinion and so you have to aggregate them."

The comments, made during an event hosted by the moderate Democratic think tank Third Way, come just days before the court is expected to offer its rulings in both cases. The decisions will be the most significant on the issue of civil rights in several decades.

LGBT rights advocates had initially been nervous about having both cases decided at the same time, arguing that DOMA should go first because had it a better chance of being overturned. But those concerns have dissipated over time.

Boies acknowledged that he was surprised that the justices raised concerns about the timing of the case during oral arguments.

"Usually when a court takes a case, it is going to decide," he said. "But here as the arguments unfolded, you saw at least some of the justices beginning to reflect that maybe they should not have taken the first of these cases to come up from the Court of Appeals."

Were the ruling to fall short of complete affirmation of a constitutional right to same-sex marriage, he added, legal actions would continue.

"If we don't win it nationally, there will be additional litigation," said Boies.

Pamela A. MacLean reports at the Trial Insider blog:

Arizona’s voter initiative banning bail for undocumented aliens charged with a serious felony survived a constitutional challenge Tuesday in the 9^th U.S. Circuit Court of Appeals.  The panel voted 2-1 that Proposition 100 did not violate the Constitution’s due process protections, excessive bail clause of the Eighth Amendment, or the Sixth Amendment right to counsel.

In dissent, Judge Raymond Fisher called Proposition 100’s legislative history shows “Arizona is plainly using the denial of bail as a method to punish ‘illegal’ immigrants, rather than simply as a tool to help manage arrestees’ flight risk.”

In 2006, Arizona voters overwhelmingly approved an amendment to their state constitution known as Proposition 100.  It barred state court judges from setting bail for serious felony offenses, if the person charged has entered the U.S. illegal.  The measure did not define “serious felony” offenses, but left that to the Legislature.

Angel Lopez-Valenzuela and Isaac Castro-Armenta, two men arrested for felonies, filed a class action in federal court against Arizona. Lopez-Valenzuela was charged with transport of drugs for sale and Castro-Armenta was accused of assault with a deadly weapon, kidnapping and assisting a criminal syndicate.

Both were denied bail under Proposition 100.

“Denial of bail without individualized consideration of flight risk or dangerousness is not unusual,” said Judge Richard Tallman for the majority.  “After all, the vast majority of states categorically deny the right to bail to persons charged with capital crimes,” he said.

Tallman said Arizona has a substantial interest in ensuring that those charged with serious state-law crimes are available to answer the charges.

“Because Proposition 100 is reasonably related to the legitimate goal of controlling flight risk, we hold that it is not excessive in violation of substantive due process under the Constitution,” Tallman said.

Fisher’s dissent argued that he would hold Proposition 100 violates due process protections and is an overbroad scheme that locks up undocumented immigrant arrestees awaiting trial without demonstrating individually who would be a flight risk and who would not.

On May 20, the Supreme Court announced its decision in PPL Corporation and Subsidiaries v. Commissioner of Internal Revenue. The case considered whether, in determining the “creditability” of a foreign tax--meaning the extent to which a U.S. company paying the foreign tax can claim a corresponding credit against its U.S. taxes--courts can and should take account of the practical operation and intended effect of the foreign tax.

In an opinion delivered by Justice Thomas, the Court held unanimously that the foreign tax was creditable against federal income taxes.  Justice Sotomayor filed a concurring opinion.

To discuss the case, we have Christina Sandefur, a staff attorney at the Goldwater Institute’s Scharf-Norton Center for Constitutional Litigation.

Click here to view this article on the source site »

Lyle Denniston comments at SCOTUSblog:

Because merely keeping quiet when police ask damaging questions is not claiming a right to silence, the Supreme Court ruled Monday, prosecutors may use that silence against the suspect at the trial.   If an individual is voluntarily talking to the police, he or she must claim the Fifth Amendment right of silence, or lose it; simply saying nothing won’t do, according to the ruling.

The Court had taken on the case of Salinas v. Texas to decide whether it violates the Fifth Amendment for prosecutors to use pre-arrest silence as evidence of guilt.   But the Court did not reach that issue, since it said that one must say something that invokes the Amendment’s protection, or else it does not apply.  Prosecutors’ use of the silence is then permitted, it ruled.

“A witness’s constitutional right to refuse to answer questions depends on his reasons for doing so, and courts need to know those reasons to evaluate the merits of a Fifth Amendment claim,” Justices Samuel A. Alito, Jr., wrote.  The Court rejected the argument that, because suspects do not know the law, their silence should be understood as a Fifth Amendment plea.

Justice Alito’s opinion had only the support of two other members of the Court — Chief Justice John G. Roberts, Jr., and Justice Anthony M. Kennedy.   Justice Clarence Thomas, in a separate opinion joined by Justice Antonin Scalia, would have answered the constitutional question that the Court had agreed to hear in this case, and declare that prosecutors could have used the suspect’s silence against him at the trial even if he had specifically claimed a Fifth Amendment right.

The Alito opinion, though, did control the outcome of the case, rejecting the constitutional challenge to the murder conviction of a Houston man, Genovevo Salinas.  He had voluntarily gone to a police station with officers to talk about the murder of two brothers in 1992.  He was not under arrest, and was not in custody, so he had no right to “Miranda warnings” telling him that he had a right to silence.

He answered almost all of the officers’ questions, but simply sat silent when the officers asked him if shotgun casings found at the scene would match his gun.  He acted very nervous in response, but said nothing.  Prosecutors used the fact that he said nothing to help convince the jury that he was guilty.  He was convicted and is serving a twenty-year sentence.

The Court rejected the argument by Salinas’s attorney that, since he was not in custody at the time and had not been given warnings about his rights, that he did not have to explicitly claim the protection of the Fifth Amendment when he did not want to answer the police questions about the shotgun casings.   The Court had previously said, in a number of other contexts, that one had to invoke the right for it to take effect, but it had never done so in the setting of a voluntary encounter of an individual with officers at a police station.

The Alito opinion said that there was no formal way an individual had to use to invoke his Fifth Amendment right, and concluded that it has not been hard for courts to figure out when that right has, in fact, been invoked.

Justice Stephen G. Breyer wrote the dissenting opinion, joined by Justices Ruth Bader Ginsburg, Elena Kagan, and Sonia Sotomayor.  They would have ruled that courts should examine all of the specific circumstances of an individual’s encounter with police to decide whether, in fact, that person’s silence was an attempt to claim the Fifth Amendment right. . . .

In April 2013, the Federalist Society produced a post-argument podcast on the case with Kent Scheidegger, the Legal Director of the Criminal Justice Legal Foundation. You can listen to it here.

The Wall Street Journal reports:

Arizona violated the federal "Motor Voter" law when it added a proof-of-citizenship requirement to standard voter-registration forms intended for use nationwide, the Supreme Court held Monday.

The ruling comes a year after the Supreme Court struck down most of another Arizona law designed to punish illegal immigrants seeking work.

Writing for the court, Justice Antonin Scalia said federal law required states to "accept and use" the streamlined form provided by the 1993 National Voter Registration Act, as the Motor Voter law is formally named.

Although federal law requires registrants to certify, under penalty of perjury, that they are U.S. citizens, it doesn't require documentary evidence. Arizona argued that its 2004 law mandating that registrants supply concrete proof of citizenship, such as a birth certificate or passport, complemented the federal requirement rather than interfering with it.

By a 7-2 vote, the Supreme Court disagreed. The Motor Voter law, which was intended to streamline voter registration, didn't authorize states to unilaterally add requirements to the standardized national form, Justice Scalia wrote.

Voter-registration groups had argued that the proof-of-citizenship requirements interfered with registration drives and other efforts to sign people up to vote.

States are still free to use their own voter-registration forms in addition to the federal form, the court said, and Arizona can require registrants to supply proof of citizenship when using the state form. Moreover, Arizona is free to cross-check information registrants supply on the federal form to ensure its accuracy, the court said.

In addition, Justice Scalia added, Arizona can ask the federal Election Assistance Commission to include state-specific requirements to the federal form.

Chief Justice John Roberts and Justices Anthony Kennedy, Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor and Elena Kagan joined all or part of Justice Scalia's opinion.

"The court has reaffirmed the essential American right to register to vote for federal election without the burdens of state voter-suppression measures," said Barbara Arnwine, president of the Lawyers' Committee for Civil Rights, one of the organizations representing the challengers to the Arizona law.

Justices Clarence Thomas and Samuel Alito dissented.

Justice Alito wrote that the decision "brushes aside the constitutional authority of the states and produces truly strange results." He said it was odd that voters' ability to register in Arizona could depend on whether they chose the federal form or a state form requiring proof of citizenship. "I find it very hard to believe that this is what Congress had in mind," he wrote. . . .

In April 2013, the Federalist Society's Free Speech & Election Law Practice Group producted a podcast on the case with Erik S. Jaffe, an appellate attorney and Chairman of the practice group. You can listen to it here.

Bloomberg News reports:

The U.S. Supreme Court will decide whether people who file housing discrimination suits must show they were victims of intentional bias, accepting a case that may undercut the Obama administration’s crackdown on the lending industry.

The justices today agreed to consider an appeal by Mount Holly, New Jersey, which is fighting a U.S. Fair Housing Act lawsuit filed by residents over the demolition of a predominantly minority neighborhood. The town says the residents must prove an intent to discriminate, not just that the project has a disproportionate effect on racial minorities.

The case will test a legal theory, known as “disparate impact,” that the Obama administration has repeatedly invoked in lawsuits against banks over housing and auto loans. Bank of America Corp., Wells Fargo & Co. (WFC) and SunTrust Banks Inc. (STI) have agreed to pay at least $480 million to settle claims since December 2011.

“Defending allegations of disparate impact -- even if proven to be meritless -- is typically very expensive,” five lender trade groups, led by the American Financial Services Association, argued in papers urging the justices to intervene.

A decision favoring the banking industry would mark a major change in the enforcement of the 1968 fair-housing law. Eleven courts of appeals have ruled on the issue, and all have said the statute allows disparate-impact claims.

The high court’s ruling might also affect the Equal Credit Opportunity Act, which bars discrimination in all types of lending and contains similar language. The Consumer Financial Protection Bureau has relied on the disparate-impact doctrine in its enforcement of that law.

The Supreme Court under Chief Justice John Roberts already is preparing to rule in two cases that may redefine longstanding legal protections for racial minorities. The justices will rule by the end of June on university affirmative action programs and the 1965 Voting Rights Act.

The justices will hear the new case in the nine-month term that starts in October.

The housing case stems from an effort by Mount Holly to redevelop what it said was a blighted, high-crime area. Known as the Gardens, the neighborhood was originally developed to provide homes for returning World War II veterans and their growing families. In more recent years, the Gardens was the only predominantly black and Hispanic area in town, with 75 percent minority residents in 329 residential units.

Kent Greenfield, professor at Boston College Law School and a former clerk to Justice David H. Souter, comments in the Boston Globe:

Justice Ruth Bader Ginsburg has been one of the most important jurists on the Supreme Court over the last 50 years. The second woman ever to serve on the court, Ginsburg has become during her 20-year tenure the strongest judicial advocate for women’s rights in the nation’s history. She embodies exemplary personal strength — twice a cancer survivor, she belies her 80 years and frail appearance with an energetic schedule of appearances and speeches away from the court. At hearings, her soft-spoken, courteously phrased questions cloak a dogged insistence on clear answers.

Ginsburg is also the senior member of the court’s four-justice liberal bloc. As in last year’s Obamacare decision, she often takes the lead in articulating the counterpoint to the views of the right wing of the court, personified by Antonin Scalia. She is also beloved; those who know her speak of her understated grace and gentleness.

But Ruth Bader Ginsburg should step down.

Justices are appointed for life, but only three in the last 60 years stayed until death took them. Most leave either when health issues make their retirements necessary (Thurgood Marshall, for example), or when they voluntarily decide the time has come to step aside. The last three justices to leave — Sandra Day O’Connor in 2006, David Souter in 2009, and John Paul Stevens in 2010 — all left while they were healthy and vibrant.

So the question facing Ginsburg is not whether to retire, but when. And the most important aspect of that decision must be when the president can choose a replacement most likely to protect her legacy. O’Connor, appointed by Ronald Reagan, announced her retirement in the first months after George W. Bush won reelection and was eventually replaced by conservative Samuel Alito. Souter, though appointed by a Republican, was in the liberal wing of the court and retired in Barack Obama’s first year, allowing the president to nominate Sonia Sotomayor.

Many court watchers expected Ginsburg to give her notice before last year’s election, to avoid the risk of a Republican winning the opportunity to replace her. Perhaps she was confident in an Obama reelection, but for whatever reason she took that risk. The payoff may be revealed in the coming days, when the Court announces its final opinions from a particularly pivotal year when it considered affirmative action, voting rights, and gay marriage.

But she should not risk further delay.

If she announces her retirement now, the president will be able to choose a replacement from an impressive short list that almost certainly includes California Attorney General Kamala Harris and California Supreme Court Justice Goodwin Liu. Harris would be the Court’s first African-American woman; Liu its first Asian-American. Either would be worth Obama spending political capital to champion. Because this is not an election year, the Senate’s confirmation hearings could occur with relative dispassion, and the chances of Republican filibuster would be minimized. There will be huffing and puffing, of course, but chances are that Obama will get his choice.

And even if this account overstates the functionality of a dysfunctional Senate, things only get worse from here. Next year Obama will likely be politically weaker. Nearly two-thirds of the 33 Senate seats up for election in 2014 are held by Democrats, and most of those seats are in swing states where a vote for a progressive Supreme Court nominee during the election season could be an albatross. The Senate Republicans will be more willing to filibuster as well, since if they hold out past November the Democrats could very well lose their majority. And if the Democrats indeed lose their majority in 2014, Obama’s options thereafter are reduced to nominating a milquetoast moderate.

Ginsburg need only look down the bench to see the embodiment of the risk she is running. Thurgood Marshall, the first African-American on the court and a liberal lion, had to leave for health reasons under the presidency of George H.W. Bush. Bush appointed Clarence Thomas, who is even more conservative than Scalia.

Ginsburg has soldiered on through bouts with cancer, the death of her spouse, and two decades of battles with Scalia and Thomas. But if we reach the end of this term without her retirement, it will be a victory for those who oppose everything she stands for.

According to Thomson Reuters:

In a decision that questions the National Labor Relations Board's authority to craft certain types of rules, a federal appeals court has invalidated one that required workplace posters notifying employees of their right to unionize.

The decision on Friday by the 4th U.S. Circuit Court of Appeals rejected a 2011 rule that required employers to post, physically or electronically, a notice describing workers' rights under the National Labor Relations Act.

The case was a direct challenge brought by the U.S. Chamber of Commerce and its affiliate in South Carolina. It was the second time in as many months that a federal appeals court has rejected the rule, after the District of Columbia Circuit Court of Appeals said last month the poster rule violated employers' free speech rights.

Proskauer Rose attorney Ronald Meisburg, a former NLRB general counsel, said the 4th Circuit's decision created a "dividing line" between the board's reactive versus proactive rulemaking.

"The courts are going to look very critically at rules that are proactive, whereas I think they'll give the board more leeway with respect to rules that are reactive," Meisburg said.

The NLRB has typically used adjudication to develop labor standards instead of rulemaking, though the NLRA grants it the authority to make rules and regulations from "time to time" that are necessary to carry out the law's provisions.

When the board announced in 2010 the proposed right-to-unionization notice, it received more than 7,000 comments, many of them critical and from the business community. The final version was published in August 2011.

The poster language crafted by the board stated that employees in workplaces subject to the NLRA had the right to form and join unions, collectively bargain with representation, discuss the terms of their employment and take action to improve working conditions. Employers who did not post the notice would be found to have committed an unfair labor practice.

The 4th Circuit noted the rule was "unusual" because the NLRB has "only rarely engaged in rulemaking during its seventy-seven year history," and "never promulgated a notice-posting rule of any kind."

In rejecting the poster requirement, the three-judge panel said that it was also unique in that it anticipated a problem instead of responding to one that had been raised during an election or unfair labor practice dispute. Notifying employees of their rights was not in and of itself a part of the law the board is tasked with enforcing.

"Because the Board is nowhere charged with informing employees of their rights under the NLRA, we find no indication in the plain language of the Act that Congress intended to grant the Board the authority to promulgate such a requirement," the three-judge panel wrote.

The Chamber's Chief Counsel for Regulatory Litigation Rachel Brand said they were pleased with the result and with the broad reasoning used by the 4th Circuit.

"The board has a reactive authority, not a carte blanche regulatory authority," Brand said.

On May 20, the Supreme Court announced its decision in City of Arlington v. FCC.  The case considered whether a court should give so-called Chevron deference to a government agency’s determination regarding its own jurisdiction.

In an opinion delivered by Justice Scalia, the Court held by a vote of 6-3 that courts must apply Chevron to an agency’s interpretation of a statutory ambiguity regarding its own jurisdiction.  Justices Thomas, Ginsburg, Sotomayor, and Kagan joined the majority opinion.  Justice Breyer filed an opinion concurring in part and in the judgment.  Chief Justice Roberts filed a dissenting opinion, which was joined by Justices Kennedy and Alito.

To discuss the case, we have Emily Bremer, an Attorney Advisor to the Administrative Conference of the United States. Ms. Bremer’s views are her own and do not necessarily represent the views of the Administrative Conference of the United States or it members.

Click here to view this article on the source site »

On June 11, 2013, the Federalist Society's Executive Branch Review Project held its First Annual Executive Branch Review Conference at the National Press Club in Washington, D.C. The second breakout session featured this panel discussion on Dodd-Frank and Beyond. Participating were:

• Hon. Kathleen Casey, Senior Advisor, Patomak Global Partners, LLC, and former Commissioner, U.S. Securities & Exchange Commission
• Prof. Deepak Gupta, Founder, Gupta Beck PLLC, and Adjunct Professor of Law, Georgetown University Law Center and former Senior Litigation Counsel and Senior Counsel for Enforcement Strategy, Consumer Financial Protection Bureau
• Prof. Todd J. Zywicki, George Mason University School of Law, and Mercatus Center Senior Scholar
• Moderator: Prof. Robert T. Miller, Professor of Law and F. Arnold Daum Fellow in Corporate Law, University of Iowa College of Law

Senator Charles Schumer writes in the Wall Street Journal:

Getting hit with a patent lawsuit is like being forced onto a highway that has only two exits, both of which exert a high toll. You can pay the plaintiff either as a settlement or in licensing fees, or you pay your lawyers to litigate the case and hopefully win. Because of the high cost of patent litigation—the average litigation defense costs a small or midsize company $1.75 million—it is often marginally cheaper for a defendant to pay up front to make the case go away. The average settlement for the same group of companies is $1.33 million. So it is no surprise that a cottage industry of what are politely called Patent Assertion Entities, but are more commonly known as trolls, is flourishing.

Patent trolls cost U.S. companies $29 billion in 2011 alone. Many of these suits are the result of poor-quality patents being asserted by highly litigious parties against ordinary businesses that are left with unacceptable options: pay a costly licensing fee, settle a court case to avoid litigation costs or spend millions in litigation fees in the hope of prevailing.

This has been especially problematic for technology startups. These small businesses have everything going for them: fresh ideas, smart employees and loyal customers. But they risk being entirely undercut by a clever patent troll who takes advantage of them in court. I have heard from New York businesses that have had to fold as a result of a lawsuit filed over a single patent that was so poorly defined it was overbroad. This is anathema to a pro-growth business culture and to the very principles of the intellectual property system.

President Obama has announced a slew of executive and legislative measures aimed at solving the problem of patent abuse. While all of his proposals will help address this serious problem, I was particularly pleased to see his endorsement of a bill I introduced in May 2013, the Patent Quality Improvement Act.

The Patent Quality Improvement Act expands Section 18 of the America Invents Act, a provision I authored in 2011. Section 18 provides cost-effective administrative review for the types of poor-quality patents that cover intangible methods of doing business using computers. Because these patents tend to be vague, they have been wreaking havoc in the courts and in boardrooms across the country.

The review program under Section 18 has only been operational for six months, but so far it appears to be working. Around two dozen requests for review are being processed by the Patent Trademark Office. And in three cases, district courts have stayed litigation pending the outcome of the official review.

Effectively, Section 18 is providing a cost-effective off-ramp for the patent litigation highway. The only problem is that it is too narrow. One limitation is that it was only authorized as a temporary program and is set to expire in 2020. What's more, the types of patents that are allowed to be considered under Section 18 are limited to those that apply to financial products or services. This limitation was introduced because financial businesses were the primary targets of troll litigation when we were debating the bill. As patent trolls have expanded their targets, however, so too should we grow the arsenal of weapons we give businesses to fight them.

The Patent Quality Improvement Act expands the scope and time frame of Section 18 so that going forward it will apply to all of the low-quality patents being asserted against legitimate businesses. The expansion of Section 18 will benefit businesses in multiple ways. For any business that has actually been sued, it provides a cheaper exit strategy. More broadly, the very existence of this offramp will discourage trolls from suing. If a troll knows he can no longer trap a defendant in expensive and lengthy litigation, his interest in the suit will diminish substantially. And American businesses can get back to the work of innovation and growth, rather than frivolous litigation defense. 

Last month, the Federalist Society held a panel discussion titled "Is the Patent System Working or Broken? A Discussion with Four Distinguished Federal Judges." Participating were:

• 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
• Introduction by: Prof. Adam Mossoff, George Mason University School of Law 

You can watch a video of the event here.

The ABA Journal reports:

In a ruling that is likely to catch the attention of employers nationwide, a federal judge in New York has ruled that unpaid interns were misclassified employees and has certified a class action against Fox Entertainment Group in which internships throughout the company's corporate offices will be reviewed.

Granting, in part, a summary judgment motion filed by the interns, U.S. District Judge William Pauley ruled that lead plaintiffs Alex Footman and Eric Glatt were employees of Fox Searchlight Pictures when the producer was creating Black Swan in New York, according to the Hollywood Reporter.

Hence, the Fair Standards Labor Act and New York state labor law applied, he held in a Tuesday opinion (PDF).

Although the two plaintiffs were treated as unpaid interns, the judge held that their work situation at Fox did not qualify as a bona fide training program under a six-factor U.S. Department of Labor test. The DOL envisions that interns will not replace regular employees and will get training equivalent to what they might have learned from attending school on the subject.

"They worked as paid employees work, providing an immediate advantage to their employer and performed low-level tasks not requiring specialized training," Pauley said of Footman and Glatt in his opinion. "The benefits they may have received–such as the knowledge of how a production or accounting office functions or references for future jobs–are the results of simply having worked as any other employee works, not of internships designed to be uniquely educational to the interns and of little utility to the employer. They received nothing approximating the education they would receive in an academic setting or vocational school."

In a written statement provided to the Hollywood Reporter, Fox said: "We are very disappointed with the court’s rulings. We believe they are erroneous, and will seek to have them reversed by the 2nd Circuit as quickly as possible."

The plaintiffs are represented by Outten & Golden, who will now serve as class counsel.

A federal judge in another case over unpaid internships at Harper's Bazaar and other publications in the magazine division of Hearst Corp. recently denied class certification, as an ABC News article details.

The Wall Street Journal reports:

The Supreme Court unanimously ruled Thursday that human genes isolated from the body can't be patented, a victory for doctors and patients who argued that such patents interfere with scientific research and the practice of medicine.

The court was handing down one of its most significant rulings in the age of molecular medicine, deciding who may own the fundamental building blocks of life.

The case involved Myriad Genetics Inc., which holds patents related to two genes, known as BRCA1 and BRCA2, that can indicate whether a woman has a heightened risk of developing breast cancer or ovarian cancer.

Justice Clarence Thomas, writing for the court, said the genes Myriad isolated are products of nature, which aren't eligible for patents.

"Myriad did not create anything," Justice Thomas wrote in an 18-page opinion. "To be sure, it found an important and useful gene, but separating that gene from its surrounding genetic material is not an act of invention."

Even if a discovery is brilliant or groundbreaking, that doesn't necessarily mean it's patentable, the court said.

However, the ruling wasn't a complete loss for Myriad. The court said that DNA molecules synthesized in a laboratory were eligible for patent protection. Myriad's shares soared after the court's ruling.

The court adopted the position advanced by the Obama administration, which argued that isolated forms of naturally occurring DNA weren't patentable, but artificial DNA molecules were.

Myriad also has patent claims on artificial genes, known as cDNA.

The high court's ruling was a win for a coalition of cancer patients, medical groups and geneticists who filed a lawsuit in 2009 challenging Myriad's patents. Thanks to those patents, the Salt Lake City company has been the exclusive U.S. commercial provider of genetic tests for breast cancer and ovarian cancer.

"Today, the court struck down a major barrier to patient care and medical innovation," said Sandra Park of the American Civil Liberties Union, which represented the groups challenging the patents. "Because of this ruling, patients will have greater access to genetic testing and scientists can engage in research on these genes without fear of being sued."

Myriad didn't immediately respond to a request for comment.

The challengers argued the patents have allowed Myriad to dictate the type and terms of genetic screening available for the diseases, while also dissuading research by other laboratories.

Humans have roughly 25,000 genes, which are DNA segments that represent basic units of heredity.

Myriad said its patents were the result of significant financial investments that allowed the company to make breakthroughs in diagnosing a woman's hereditary cancer risk. The company and its backers, including trade groups for the pharmaceutical and biotech industries, warned that disallowing patents like Myriad's could deter financial investments for future medical innovations.

But many companies in the medical industry took a more sanguine view of the case, saying an end to gene patents could open up new opportunities to develop diagnostic services, including tests that analyze large numbers of genes at once.

The Supreme Court's ruling largely overturned a divided appeals court opinion that broadly allowed gene-related patents. Lower court judges noted that the U.S. Patent and Trademark Office had been granting patents on DNA sequences for 30 years.

Justice Thomas said deference to the Patent Office wasn't warranted. Concerns about industry reliance on past Patent Office practices "are better directed to Congress," he said.

At arguments in April, Supreme Court justices were skeptical that human DNA extracted from the body could be patented like a mechanical invention. The debate highlighted how some discoveries may not be patentable, even if they unlock important medical mysteries.

"Patent law is filled with uneasy compromises," Justice Stephen Breyer said during the arguments. "On the one hand, we do want people to invent; on the other hand, we're very worried about them tying up some kind of whatever it is, particularly a thing that itself could be used for further advance."

The court in recent years has sought to constrict the scope of patent protections, concerned that patents were being issued too easily and so broadly as to squelch competition and impede innovation. Justice Elena Kagan at one point alluded to such concerns, describing the Patent and Trademark Office as "patent-happy."

The arguments featured a battle of analogies.

"A baseball bat doesn't exist until it's isolated from a tree. But that's still the product of human invention to decide where to begin the bat and where to end the bat," Myriad lawyer Gregory Castanias told the court.

Chief Justice John Roberts, who compared the gene-isolating technique to simply "snipping" one element from a longer strand, disagreed.

"The baseball bat is quite different," he said. "You don't look at a tree and say, well, I've cut the branch here and cut it here and all of a sudden I've got a baseball bat. You have to invent it."

In May 2013, the Federalist Society's Intellectual Property Practice Group produced a post-argument podcast in which Gregory Dolin, associate professor and co-director, Center for Medicine and Law at theUniversity of Baltimore School of Law, spoke about the case.  You can listen to it here.

Damon W. Root writes for Reason magazine:

On Monday, the Supreme Court ruled 9-0 that a group of California raisin farmers may proceed with a constitutional challenge against a New Deal-era law forcing them to turn over a portion of their crop to the federal government without compensation in order to reduce supply and fix prices. As I noted in my report on the ruling, this is the second unanimous defeat this term for the Obama administration in a 5th Amendment Takings Clause case.

That’s not exactly a great track record for the White House, though as George Mason University law professor Ilya Somin observes, it actually gets worse if you broaden the category to property rights more generally. That’s because last term, in Sackett v. Environmental Protection Agency, a unanimous Supreme Court rejected Obama’s argument that the EPA may issue regulatory commands to property owners without having to subject those commands to judicial review by the courts. “There is no reason to think that the Clean Water Act was uniquely designed to enable the strong-arming of regulated parties into ‘voluntary compliance’ without the opportunity for judicial review,” the ruling declared.

So that’s three major property cases and three resounding defeats for the Obama administration. As Somin puts it, “what these rulings really reflect is that the administration took such extreme positions that even liberal justices generally unsympathetic to property rights claims could not swallow them.”