FedSoc Blog

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.

According to CNET:

The U.S. Department of Justice and the FBI believe they don't need a search warrant to review Americans' e-mails, Facebook chats, Twitter direct messages, and other private files, internal documents reveal.

Government documents obtained by the American Civil Liberties Union and provided to CNET show a split over electronic privacy rights within the Obama administration, with Justice Department prosecutors and investigators privately insisting they're not legally required to obtain search warrants for e-mail. The IRS, on the other hand, publicly said last month that it would abandon a controversial policy that claimed it could get warrantless access to e-mail correspondence.

The U.S. attorney for Manhattan circulated internal instructions, for instance, saying a subpoena -- a piece of paper signed by a prosecutor, not a judge -- is sufficient to obtain nearly "all records from an ISP." And the U.S. attorney in Houston recently obtained the "contents of stored communications" from an unnamed Internet service provider without securing a warrant signed by a judge first.

"We really can't have this patchwork system anymore, where agencies get to decide on an ad hoc basis how privacy-protective they're going to be," says Nathan Wessler, an ACLU staff attorney specializing in privacy topics who obtained the documents through open government laws. "Courts and Congress need to step in."

The Justice Department's disinclination to seek warrants for private files stored on the servers of companies like Apple, Google, and Microsoft continued even after a federal appeals court in 2010 ruled that warrantless access to e-mail violates the Fourth Amendment. A previously unreleased version of an FBI manual (PDF), last updated two-and-a-half years after the appellate ruling, says field agents "may subpoena" e-mail records from companies "without running afoul of" the Fourth Amendment. . . .

Not all U.S. attorneys have attempted to obtain Americans' stored e-mail correspondence without a warrant. The ACLU persuaded a judge to ask whether warrantless e-mail access has taken place in six of the 93 U.S. Attorneys' offices -- including the northern California office that's prosecuted an outsize share of Internet cases. The answer, according to assistant U.S. attorney Christopher Hardwood, was "no."

Still, the position taken by other officials -- including the authors of the FBI's official surveillance manual -- puts the department at odds with a growing sentiment among legislators who insist that Americans' private files should be protected from warrantless search and seizure. They say the same Fourth Amendment privacy standards that require police to obtain search warrants before examining hard drives in someone's living room, or a physical letter stored in a filing cabinet, should apply.

After the IRS's warrantless e-mail access policy came to light last month, a dozen Republican and Democratic senators rebuked the agency. Their letter (PDF) opposing warrantless searches by the IRS and signed by senators including Mark Udall (D-Colo.), Mike Lee (R-Utah), Rand Paul (R-Ky.), and Ron Wyden (D-Ore.) said: "We believe these actions are a clear violation of the Fourth Amendment's prohibition against unreasonable searches and seizures."

Steven Miller, the IRS' acting commissioner, said during a Senate hearing that the policy would be changed for e-mail. But he left open the possibility that non-email data -- Google Drive and Dropbox files, private Facebook and Twitter messages, and so on -- could be accessed without a warrant. . . .

On her blog, Professor Ann Althouse calls attention to a recent interview of Justice Thomas:

"I loved the D.C. Circuit... and I could've stayed there. But I think I got maneuvered into this job. And then I had a really bad interview."

Said Clarence Thomas in this wonderful hour-long conversation with Harvard Law School Dean Martha Minow. The Harvard law students give him a standing ovation as he arrives in the room, and he jokes "I should quit while I'm ahead."

In fact, he goes on to be warm, interesting, deep, smart, and there's just way too much good stuff in here for me to quote everything that jumps out, because, really, everything jumps out. If you skip over the long introduction and get to the first question, he talks about growing up among illiterate but good and loving people and then discovering reading at a segregated library in Savannah. The librarians introduced him to Dr. Seuss.

Minow and Thomas talk about their mutual love for a book about introversion called "Quiet," and Thomas characterizes himself as very introverted. He talks about working in all 3 branches of government and greatly preferring the judiciary because in the EEOC and in the legislature, though he loved the people, it was too political. "I don't understand politics.... It made my head hurt.... It was like new math."

ADDED: He says Ruth Bader Ginsburg and Elena Kagan are delightful. When Kagan arrived, he said to her: "You know, it's going to be a joy disagreeing with you for years to come."

AND: At oral arguments, Justice Breyer doodles stick figures. The 2 of them sit together at oral argument and share jokes and laugh. "You know, he's very smart, but he's sort of a moving around smart," he says, making a gesture as if he were moving Breyer's little stick figures around. "And I tend to be someone, I lock into something, I want to think it through for a long time, and he likes to move around, and I sort of rein him in. Every so often, what I'll is I'll say, 'What about this, Steve?' and he'll pop up and ask and a question." So that's how Clarence Thomas asks questions at oral argument. Thomas laughs because it's "just something I'm throwing out," and Breyer makes it into a question. 

John Yoo, professor at the University of California Berkeley School of Law, writes in the Wall Street Journal:

A year ago this month, President Obama bypassed the Senate's advice-and-consent power by naming three new members to the National Labor Relations Board and appointing Richard Cordray to head the Consumer Financial Protection Bureau. Mr. Obama declared that these were "recess" appointments even though the Senate—by its own definition—remained in session.

The D.C. Circuit Court of Appeals on Friday unanimously struck down these unilateral appointments, but the three-judge panel's decision in Noel Canning v. NLRB did more than knock a few people out of work and effectively nullify a year's worth of rules that eased union organizing and regulated mortgages and credit cards.

Judge David Sentelle, given an opening by the unprecedented White House power grab, issued a ruling that has profound ramifications for the office of the presidency. He and judge Karen Henderson rejected the very idea of "intra-session recess appointments." Mr. Obama thus has jeopardized a vital executive power for all future presidents.

Senate advice and consent serves as an important counterweight in the unending struggle between the president and Congress. The Constitution, however, allows presidents to temporarily fill "vacancies that may happen during the recess of the Senate," because in the late 18th century legislative sessions were short and breaks could last as long as nine months.

Since 1823, presidents have filled offices that opened even while Congress was in session, on the legal fiction that the vacancies continue to "happen" when the recess came. In the early 20th century, presidents also claimed that, in addition to the official break between a Congress's first and second years, a short Senate adjournment constituted a recess when unilateral appointments could be made.

Mr. Obama's defenders may claim that his exercise of appointment power differed little from that of his predecessors. President George W. Bush, for example, appointed William Pryor in 2004 as a federal judge and John Bolton as U.N. ambassador in 2005 during Senate adjournments.

President Bush acted after he became frustrated with Senate inaction on his nominees. He was also frustrated by Majority Leader Harry Reid's maneuver, beginning in 2007, to keep the body in "pro forma" session where it continued to meet but no important business was conducted. But Mr. Bush respected the Senate's authority over its own rules, and he declined to unilaterally select officials in violation of the Appointments Clause.

Not so Mr. Obama, whose unwarranted use of executive authority has provoked the D.C. Circuit to reverse 190 years of constitutional practice. Though the Senate remained in session last January and even passed major legislation during that time, Mr. Obama went ahead and appointed the NLRB and CFPB officials anyway. The Justice Department argued that the president could decide for himself whether the Senate was really in session and whether it was "genuinely capable of exercising its constitutional function."

Under the Constitution's separation of powers, each branch of government sets its own internal rules. Only the Senate can decide to allow a filibuster. Only justices decide to issue written opinions, or decide cases by majority vote. The president chooses to whom he listens, with whom he discusses, and through whom he transmits his decisions.

Mr. Obama, however, claimed the right to judge the legitimacy of the other branches' proceedings—a seizure of power unheard of in American history. A future president employing this power could ignore legislation that he thought insufficiently debated, recognize laws that had not met the filibuster's 60-vote requirement, or only enforce unanimous Supreme Court decisions.

In Noel Canning, Judge Sentelle confronted more than one instance of executive overreach. Mr. Obama has also distorted the Framers' presidency into an instigator of domestic revolution, rather than as the protector of the national security and the enforcer of the laws. . . .

Mr. Obama . . . has wasted his office's constitutional capital for domestic advantage. He did not fill a vital office during a time of crisis; instead his appointments to the NLRB rewarded constituencies vital to his re-election and burnished his populist credentials. This is of a piece with another unprecedented exercise of executive power: Mr. Obama's refusal to enforce laws that he dislikes. His Justice Department, for instance, will not deport illegal immigrants as required by law. Mr. Obama's abdication of a core constitutional responsibility as a way of advancing his political fortunes is a remarkable and troubling turn in the history of the presidency.

Last week, the Federalist Society produced a podcast  the day of the D.C. Circuit's decision. The podcast featured:

• Dr. John C. Eastman, Chapman University School of Law
• Mr. Noel J. Francisco, Jones Day
• Prof. Todd J. Zywicki, George Mason University School of Law
• Moderator: Mr. Dean Reuter, Vice President & Director of Practice Groups, The Federalist Society

Among other things, Professor Zywicki discussed his recently published article, "Policy-Based Evidence-Making at the Consumer Financial Protection Bureau." In that article, he first describes the mortgage rules very recently adopted by the Consumer Financial Protection Bureau (CFPB). He goes on to question whether the rationale for the new rules is supported by factual evidence. Finding they are not, he calls for greater oversight of the CFPB.

You can listen to the podcast here.

As part of our 25th Anniversary celebration, the Federalist Society presented a full-day conference honoring Judge Robert H. Bork and his contributions to the law. This tribute video was presented at the conference luncheon on June 26, 2007.

The Durham County News Observer reports:

BLT: The Blog of Legal Times reports:

"I had to think of something in order to keep it in the news, because it's important people continue to talk about it, " Lee said during a speech to the Federalist Society this month. "I said at the outset that until such time as my party responds or I get some assurance from the president that this won't happen again, I’m going to continue to vote no. "

But now Lee says the Republicans have adequately responded by invoking a loosely defined Senate tradition of backing off from filling circuit court seats in the waning months of a president's term, dubbed the "Thurmond Rule." That rule was invoked in July.

"That issue is closed," spokesman Brian Phillips said. However, should the president again make recess appointments, Lee could again institute his policy, Phillips said. . . .

The video of Senator Lee's aforementioned talk at the Federalist Society's 2012 National Lawyers Convention can be watched here.

On September 11, 2001, at the age of 45 and at the height of her professional and personal life, Barbara K. Olson was murdered in the terrorist attacks against the United States as a passenger on the hijacked American Airlines flight that was flown into the Pentagon. The Federalist Society established this annual lecture in Barbara's memory because of her enormous contributions as an active member, supporter, and volunteer leader. Solicitor General Theodore B. Olson delivered the first lecture in November 2001. The lecture series continued in following years with other notable individuals.

In 2012, Technology Entrepreneur, Investor, and Philanthropist Peter A. Thiel delivered the lecture. He was introduced by Eugene B. Meyer, President of the Federalist Society.

Senator-elect Ted Cruz of Texas addressed attendees of the Federalist Society's 2012 National Lawyers Convention on Friday, November 16, at the Mayflower Hotel in Washington, D.C. Senator-elect Cruz was introduced by Leonard A. Leo, Executive Vice President of the Federalist Society.

Senator Mike Lee of Utah addressed attendees of the Federalist Society's 2012 National Lawyers Convention on Friday, November 16, at the Mayflower Hotel in Washington, D.C. Senator Lee was introduced by Leonard A. Leo, Executive Vice President of the Federalist Society.

Governor Rick Scott of Florida addressed attendees of the Federalist Society's 2012 National Lawyers Convention on Friday, November 16, at the Mayflower Hotel in Washington, D.C. Governor Scott was introduced by Dean A. Reuter, Vice President and Director of Practice Groups for the Federalist Society.

The Federalist Society's 2012 National Lawyers Convention kicked off on the morning of Thursday, November 15, with a welcome by Executive Vice President Leonard A. Leo. Showcase Panel I followed the welcome at around the 00:05:30 mark in the above video of the entire panel. It considered the following issues.

The Rehnquist Court was famous for its resuscitation of some fairly modest constitutional limits on federal power. One major question with the appointment of new Justices was where the Court was likely to go. In the recent oral arguments on the constitutionality of the law imposing a national health care mandate, the Roberts Court Justices seemed very closely divided. This panel will examine the Supreme Court's federalism jurisprudence in light of what was a close vote on the health care law. This case has reinvigorated the debate over the limits on federal power. Are there significant limits, or are they are a function of a bygone past? If the limits do not apply in economic areas, are they then suspect in other areas of morality where the courts have overturned major legislative decisions? Are such limits just a political function of who benefits? Likewise, is federalism only used by those who stand to benefit? How sustainable in practice are judicially-enforced limits on federal power?

The distinguished panelists were:

--Prof. Randy E. Barnett, Carmack Waterhouse Professor of Legal Theory, Georgetown University Law Center
--Hon. Paul D. Clement, Partner, Bancroft PLLC and former U.S. Solicitor General
--Hon. Frank H. Easterbrook, Chief Judge, U.S. Court of Appeals, Seventh Circuit
--Prof. Heather Gerken, J. Skelly Wright Professor of Law, Yale Law School
--Prof. Neal K. Katyal, Paul and Patricia Saunders Professor of National Security Law, Director, Center on National Security and the Law, Georgetown University Law Center and former Acting U.S. Solicitor General
--Prof. Robert G. Natelson, Senior Fellow, Constitutional Jurisprudence Independence Institute
--Moderator: Hon. Diane S. Sykes, U.S. Court of Appeals, Seventh Circuit
--Welcome and Introduction: Mr. Leonard A. Leo, Executive Vice President, The Federalist Society

MyFoxNY reports:

The NYPD says it will launch an all-seeing "Domain Awareness System" that combines several streams of information to track both criminals and potential terrorists.

Police Commissioner Raymond Kelly says the city developed the software with Microsoft.  

The program combines city-wide video surveillance with law enforcement databases, according to Kelly.

The Domain Awareness System will include technology deployed in public spaces as part of the counterterrorism program of the NYPD counterterrorism bureau, including: NYPD-owned closed circuit television cameras, license plate readers, and other undisclosed domain awareness devices.

Kelly said the system will be officially unveiled by Mayor Michael Bloomberg sometime this week. Commissioner Kelly announced the program before an audience at the Aspen Security Forum in Aspen, Colo. over the weekend.

The NYPD has been heavily criticized for using surveillance in Muslim communities and partnering with the Central Intelligence Agency to track potential terror suspects.

Muslim groups have protested and sued to stop the NYPD programs.

Kelly says the policies were essential to halting 14 terrorism plots against the city since the attacks of Sept. 11, 2001.

In April 2012, former Secretary of Homeland Security Michael Chertoff delivered an address on "National Security After U.S. v. Jones" at FedSoc's 2012 National Security Symposium.  Among other subjects, he discussed the pros and cons of widespread electronic surveillance. You can watch a video of his talk here.

The Washington Post reports:

The first round of the 2012 election is being waged in courtrooms across the country, and those challenging a wave of tough voter identification laws are finding state courts a more hospitable environment than the traditional civil rights venue of the federal courthouse.

Perhaps the most important challenge got underway Wednesday in the swing state of Pennsylvania, where opponents of a new law requiring IDs told a state judge that the commonwealth’s constitution forbids such a restriction.

“Under the case law and the express terms of the Pennsylvania Constitution, it is doubtful that there is any governmental interest that can justify depriving voters of their constitutional right,” said a brief filed on behalf of 10 individuals and groups such as the NAACP and League of Women Voters.

The strategy of filing challenges in state court has succeeded in Missouri and Wisconsin, where judges have relied on voting rights protections enshrined in state constitutions to block laws requiring voters to present photo identification.

Voting rights advocates are scrambling to fight a rush of state voting law changes adopted over the past two years that, among other changes, curtail the availability of early voting and impose new requirements on voter registration efforts.

Most attention has been focused on requirements that voters show photo identification, a measure that strikes many people as a common-sense notion that voters prove they are who they say they are. Many states require some method of identification, but 10, including Pennsylvania, have passed laws requiring specific kinds of government-issued IDs.

Sponsors say the laws are needed to combat voter fraud and assure the public that only qualified voters will have their ballots counted. But evidence of the kind of voting fraud the laws would discourage is elusive; Pennsylvania concedes it cannot prove any.

And opponents say the laws fall disproportionately on minorities, the poor and the elderly, who even in a modern world sometimes lack both photo identification and the legal documents and means that would allow them to obtain it.

The groups challenging the Pennsylvania law, as well as other advocacy organizations such as the Senior Law Center, say they can present numerous voters who would have trouble securing out-of-state birth certificates, paying the cost of other documents or traveling to state offices to get the photo IDs.

At FedSoc's 2011 National Lawyers Convention, the Free Speech & Election Law Practice Group hosted a panel on "Voter Fraud and Voter ID — The Constitution and the Right to Vote."  The line-up comprised:

• Mr. John Fund, Former Columnist, The Wall Street Journal and Opinionjournal.com
• Prof. Spencer A. Overton, Professor of Law, The George Washington University Law School
• Prof. Daniel P. Tokaji, Professor of Law, The Ohio State University, Moritz College of Law and and Senior Fellow of Election Law @ Moritz
• Mr. Hans von Spakovsky, Senior Legal Fellow and Manager, Civil Justice Reform Initiative, The Heritage Foundation
• Moderator: Hon. Thomas B. Griffith, U.S. Court of Appeals, D.C. Circuit

You can watch the full video here.

On July 6, 2012, former U.S. Solicitor General Theodore Olson delivered the Annual Supreme Court Round Up at The Mayflower Hotel in Washington, DC.

Featuring:

• Hon. Theodore B. Olson, Partner, Gibson Dunn & Crutcher LLP and Former U.S. Solicitor General
• Introduction: Mr. Douglas R. Cox, Gibson, Dunn & Crutcher