There's an interesting discussion going on over at Balkinization about whether theories of interpretation matter. For example, see the posts of Brian Tamanaha and Sandy Levinson.

I've always wondered about a related question. The judiciary adheres to stare decisis for many principles of law, but it seems to allow a free-for-all when it comes to interpretative method. Interpretative method (for both the Constitution as well as statutes) is left to the discretion of each individual judge or justice. So one judge might be an originalist, another might be a textualist, and yet another might adhere to the "living constitution." On the Supreme Court, for example, its institutional opinions -- those of the majority -- seem to shift from one interpretative method to another depending upon which justice authors that opinion. Why isn't the method of constitutional or statutory interpretation governed by stare decisis?

Stare decisis is justified based on the need for stability and consistency in the law. We frequently hear lofty pronouncements by courts about the great value of precedent. But these same values that underpin and justify stare decisis seemingly also apply to interpretative method. Wouldn't constitutional law be more stable and consistent if all the justices were to adhere to stare decisis about what method (originalism, textualism, etc.) should be used to interpret the Constitution? Why not bind justices in this way?

Of course, if methods of interpretation don't matter in the end, if cases are just decided on ideology and interpretative methods and theories are just elaborate window-dressing, then my question doesn't matter all that much. But if these methods do carry some influence or weight, if they do matter at all, then why do they remain so unsettled? Why not bind them with stare decisis? Perhaps justices might feel too constrained. If Justice Thomas couldn't be an originalist because of stare decisis, would this impinge upon his own individual prerogative, his unique judicial style? But stare decisis is about constraining justices based on what past justices have decided. So why not bind justices in this manner?

Is there a good argument for why stare decisis should not apply to interpretative method?

Image credit: David Lat (who has photos on my favorite photo site, Stock.xchng)

Posted by Daniel J. Solove at 12:03 AM | Comments (11) | TrackBack (0)

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Last week’s release of Grand Theft Auto IV (actually somewhere between the sixth and ninth game in the series, depending on how you count) was big news in the gaming world (even if some observers questioned the suspiciously universal acclaim). Players cleared their calendars and in some cases emptied their wallets to play the latest installment in this series of open-ended games, which drop the player into a vast city of cars to steal, bystanders to gun down, insane stunt jumps to make, and real-life references to spot.

Among lawyers, the games may be best-known for the regular moral panics they induce over fears of copycat violence, and for attorney Jack Thompson’s increasingly bizarre crusade against them. We might also ask what kind of a legal world the GTA series envisions within its famously capacious in-game universe.

The series’s built-in attitude of rampant lawlessness—it’s named after a crime, after all—might suggest a kind of deliberate criminality. That’s certainly the interpretation that fuels the regular calls for the games to be banned. And yes, the plots typically chart the protagonist’s Scarface-style rise as he carries out errands both murderous and larcenous for an entertaining assortment mob bosses. This interactive representation of lawlessness—the player playing at the role of criminal—puts the Grand Theft Auto games squarely within the tradition of deliberate shockers like Postal.

But this may be an unduly harsh take, and not just because the claim that playing violent games leads to violence in meatspace rests on some dubitable social science. San Andreas may well show us the world as Holmes’s bad man would see it, but consider the lessons he’d learn from it. Crime doesn’t always pay. In fact, offhandedly casual offenses—driving on the sidewalk to circle around traffic, say, and in the process clipping a pedestrian—can put the police on your tail. And the aggresive things you do to try and shake them often wind up making matters worse. Before you know it, you have a six-star wanted rating, they’re sending in the black helicopters, you’re crouched in a doorframe, and there’s pretty much only one way this story can end. Exaggerated though the arc may be, it does illustrate some of the vicious circles trapping the poor, the desperate, and the criminal.

Or consider the in-game depictions of the legal system itself. Get arrested by the police, and you’re back on the streets within seconds—minus some bribe money. Call it an indictment of revolving-door-prison liberalism, or call it an indictment of police more interested in protecting their turf than in doing justice or confronting Liberty City’s very real problems. The lawyers don’t come across much better: Ken Rosenberg is a paranoid cokehead who asks our hero to fix a case by intimidating jurors.

One last thought. Given the games’ increasingly humongous alternate reality, how about building in a penal code? Grand Theft Auto’s legal geekery index would soar if every unlawful act were accompanied by a statement of exactly what crime the player had just committed. “Arson in the second degree!” “Involuntary manslaughter!” “Grand theft garbage truck!” For added fun, the crimes could be correlated with a set of sentencing guidelines, so that the in-game statistics screen would tally up precisely the number of years of imprisonment the protagonist deserved.

Posted by James Grimmelmann at 11:19 PM | Comments (4) | TrackBack (0)

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When Bush v. Gore was decided in December of 2000, everyone thought it was a hugely significant case. But was Bush v. Gore a significant case after all?

When the votes were actually counted, after the fact, they showed that Bush would have won anyway. Nearly eight years later, it is safe to say that the case has not generated a jurisprudential revolution, even though a panel of Ninth Circuit judges tried to stop the California recall election by relying on Bush v. Gore, only to be overturned by an en banc panel of the Ninth Circuit. The Supreme Court has not cited the case at all, as far as I know, since Bush v. Gore was decided. Indeed, it is hard to imagine a constitutional law case decided in the past eight years that has been referenced less than Bush v. Gore has been referenced.

Many predicted that Bush v. Gore would undermine public support for the Court. Justice Stevens wrote in his dissenting opinion that "[t]ime will one day heal the wound to that confidence that will be inflicted by today's decision. One thing, however, is certain. Although we may never know with complete certainty the identity of the winner of this year's Presidential election, the identity of the loser is perfectly clear. It is the Nation's confidence in the judge as an impartial guardian of the rule of law."

Most of the studies of which I am aware show that Bush v. Gore has not, over the longer term, affected the Supreme Court's image in the public eye. Some studies show that there were short-term effects, but other research has demonstrated that over the longer-term the image of the Court has not been affected. If anything, some research has shown that public knowledge of the Court has increased, which is probably a good thing.

There is evidence that, consciously or not, law professors have tended to regard Bush v. Gore as not too big of a deal. As I taught my first Constitutional Law class this past year, I was shocked to see that Bush v. Gore was not even excerpted in the casebook I used, and was only referenced in passing in a few places.

But still, it HAS to be a big deal for the Supreme Court to intervene and essentially decide a presidential election. The case might not have made a big difference in measurable ways--or at least the measurable ways mentioned above--but when a court intervenes in that way, it has enormous symbolic importance in a democracy. So, even though Bush v. Gore does not affect any of the doctrinal issues in the (structural) constitutional law class, I assign excerpts of the case, for reasons of cultural literacy.

What do others do? I have not surveyed all of the casebooks, but my sense is that the casebook I used was not alone in not paying too much attention to the case. Do people assign this case? In what part of the class?

Posted by David Fontana at 07:09 PM | Comments (10) | TrackBack (0)

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Many thanks to Doug Berman over at Sentencing Law and Policy for his kind words about my last post discussing Begay v. United States. Doug ended his post by noting that “the only thing missing” from my analysis was an assessment of what the Court’s ruling in Begay might mean for the soon-to-be-decided United States v. Rodgriguez. Taking up Doug’s gently-placed gauntlet, here are my thoughts on the likely outcome of Rodriguez, as informed by the Justices’ voting/reasoning in Begay:

First, a little Background: Rodriguez involves clause (i) of the same Armed Career Criminals Act (“ACCA”) sentencing enhancement that was at issue in Begay (and in James). 18 U.S.C. §924(e)(2)(B). Whereas clause (ii) of that section imposes the enhancement if the defendant previously has been convicted of three “violent felonies,” clause (i) triggers the enhancement if a defendant previously has been convicted of a “serious drug offense” — defined as “a state drug trafficking offense for which a maximum term of imprisonment of 10 years or more is prescribed by law.” 18 U.S.C. §924(e)(2)(B)(i). At the time when he committed his latest offense, Rodriguez had three prior convictions in Washington State for delivery of a controlled substance. Under Washington State law, the maximum term of imprisonment for this offense is 5 years for first-time offenders, and 10 years for those committing the offense for a second time (or third, or fourth, etc. time). The statutory interpretation question thus becomes: Whether a state drug trafficking offense qualifies as a “serious drug offense” triggering the §924(e)(2)(B)(i) enhancement if the maximum term of imprisonment starts out at 5 years for first-time offenders, but rises to 10 years for repeat offenders.

Based on their votes in Begay (and James) construing clause (ii) of §924(e)(2)(B), and on their questions at oral argument, here are my speculations (and I want to emphasize that these are just speculations) as to how the Justices are likely to vote in Rodriguez:

Continue reading "Predictions for United States v. Rodriguez"

Posted by Anita S. Krishnakumar at 03:55 PM | Comments (1) | TrackBack (0)

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Southern California Law Review, 81:3 (March 2008)

Articles

Margaret H. Lemos, The Other Delegate: Judicially Administered Statutes and the Nondelegation Doctrine, 81 S. Cal. L. Rev. 405 (2008)

David Luban, On the Commander in Chief Power, 81 S. Cal. L. Rev. 477 (2008)

Notes

Padraic Foran, Unreasonably Wrong: The Supreme Court's Supremacy, the AEDPA Standard, and Carey v. Musladin, 81 S. Cal. L. Rev. 571 (2008)

Michael Moulton, Effecting the Impossible: An Argument Against Tax Strategy Patents, 81 S. Cal. L. Rev. 631 (2008)

Posted by Southern California Law Review at 01:44 PM | Comments (0) | TrackBack (0)

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Wired reports that the FBI subpoenaed the Internet Archive and demanded that Brewster Kahle (the Archive’s founder) provide records about one of the library's registered users, asking for the user's name, address and activity on the site. The FBI used a National Security Letter (example) to make the request. As Wired explains this type of letter does not require judge’s review before issuing it and often (almost always) has a gag order “forbidding the recipient from ever speaking of the subpoena, except to a lawyer.” The Archive, EFF, and the ACLU went to court and had the subpoena quashed.

As I argue in Property, Persona, and Preservation, given that our information is more and more technologically mediated, we need better systems to preserve our information. This case raises a related issue of once preserved what can be done with the information. Here, the Archive is preserving the information and then as a library allowing people to use that information. But because of the method of access, the FBI was able to ask for great detail about who looked at what information and when. Julie Cohen’s A Right to Read Anonymously: A Closer Look at "Copyright Management" In Cyberspace offers an explanation as to why the Archive’s win is so important. In short, reading anonymously involves identity of the reader and how we foster “freedom of thought and expression.”

In addition, the Wired article points out that despite the settlement the details of what was sought for example, the “kind of information the target was looking at or uploading -- such as animal rights information or Muslim literature” were kept secret. There may be reason for such secrecy. Still, when Congressional audits show that “hundreds of thousands of NSLs” have been issued, the use has not been tracked, the FBI “can only estimate how many NSLs it has issued,” each time an NSL has been challenged, it has lost (only three times according to the article), but one needs the help of a major public interest law group to fight the subpoena, something is wrong.

One disturbing thing is that no one knows exactly how these NSLs are being used or managed or if they do, they can’t talk about it. That situation reminds me of the private military context where the government also had little sense of how many and under what terms the PMCs were used. In other words, lack of oversight often leads to abuse, but then many know that, right? Another problem is that again like the PMC context, it seems quite difficult to have any sunshine fall upon this process. Why not have a judge look at such a letter? It seems the information is not going anywhere. Quite the opposite; remember it is preserved.

There is more to say on secrecy but for now I recommend Secrecy: The American Experience by Daniel Patrick Moynihan. I think I have recommended it before and probably Patrick O’Donnell has offered other books on the topic (which is always welcome). But as it is on my mind and an excellent look at how secrecy can help and harm a fight against whoever our enemies may be, I offer it again.

Posted by Deven Desai at 12:45 PM | Comments (2) | TrackBack (0)

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Texas Law Review, Volume 86, Number 6 (May 2008)

ARTICLES
Technocracy and Antitrust
Daniel A. Crane

Standards, Testing, and School Finance Litigation
James E. Ryan

BOOK REVIEW
Of Cabbages and Kings: A Review of Our Undemocratic Constitution by Sanford Levinson
Charles D. Kelso & R. Randall Kelso

NOTES
Remedying Daubert's Inadequacy in Evaluating the Admissibility of Scientific Models Used in Environmental-Tort Litigation
Matthew W. Swinehart

Standing Up for Justice: A Case for Amending a Rule that Unreasonably Restricts Who May Sue for Injury to Real Property
Claire B. Chandler

Posted by Texas Law Review at 01:18 PM | Comments (0) | TrackBack (0)

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Boston University Law Review, 88:2 (April 2008)
For prior issues, please visit our website.

SYMPOSIUM: THE ROLE OF THE PRESIDENT IN THE TWENTY-FIRST CENTURY

Contents

Introduction, 88 B.U. L. Rev. 321 (2008)

Saikrishna Bangalore Prakash, A Taxonomy of Presidential Powers, 88 B.U. L. Rev. 327 (2008)

Robert D. Sloane, The Scope of Executive Power in the Twenty-First Century: An Introduction, 88 B.U. L. Rev. 341 (2008)

Michael D. Ramsey, Presidential Originalism?, 88 B.U. L. Rev. 353 (2008)

Gary Lawson, What Lurks Beneath: NSA Surveillance and Executive Power, 88 B.U. L. Rev. 375 (2008)

Dawn E. Johnsen, What’s a President To Do? Interpreting the Constitution in the Wake of Bush Administration Abuses, 88 B.U. L. Rev. 395 (2008)

John Yoo, Jefferson and Executive Power, 88 B.U. L. Rev. 421 (2008)

Neal Devins & David E. Lewis, Not-So Independent Agencies: Party Polarization and the Limits of Institutional Design, 88 B.U. L. Rev. 459 (2008)

Julian E. Zelizer, The Conservative Embrace of Presidential Power, 88 B.U. L. Rev. 499 (2008)

William P. Marshall, Eleven Reasons Why Presidential Power Inevitably Expands and Why It Matters, 88 B.U. L. Rev. 505 (2008)

Harold J. Krent, From a Unitary to a Unilateral Presidency, 88 B.U. L. Rev. 523 (2008)

Daniela Caruso, (Presidential) Powers in the European Union, 88 B.U. L. Rev. 561 (2008)

Posted by Boston University Law Review at 10:04 AM | Comments (0) | TrackBack (0)

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Conservative pundit Arthur C. Brooks has been discussing his book Gross National Happiness in a number of venues, including the NYT Freakonomics blog. Having criticized the progressive Robert H. Frank for using such data to support egalitarianism, I'll now question Brooks's subjectivism (which has led him in exactly the opposite direction as Frank on the inequality question).

Brooks is happy to report that his political allies are "winning the happiness game hands down." He gives several hypotheses for conservative joy; stronger religiosity, more time with family, a preference for "simplicity" over "complexity," and less likelihood to see oneself as a victim. Brooks occasionally concedes Mill's argument that it is "better to be Socrates dissatisfied than a pig satisfied." But he appears most amenable to the view that liberals are likely to be whiny, complaining, resentful people, while conservatives resolutely consider themselves in control of their fate and satisfied with their lives.

Brooks's research raises a number of interesting policy questions. First of all, what's his root concern--happiness or virtue? We might map the classic tension between freedom and virtue to the present case: is it good action or the subjective feeling (Brooks alleges) it creates the desideratum here? If the latter, why not just provide people with soma? If the former, it's a bit odd to introduce the "happiness evidence" as a reason for being, say, conservative, or good. Who's Brooks's audience? Exhausted hedonists just on the brink of giving up their Don Juan days to find more lasting pleasure at anti-tax rallies?

Continue reading ""In much wisdom there is much grief . . .""

Posted by Frank Pasquale at 11:18 PM | Comments (4) | TrackBack (0)

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A U.S. District Judge has enjoined a defendant from using a term for its business. That is not an unusual result. The one part of the order that may be of note is that the defendant is not allowed to purchase ad words using the plaintiff’s mark and the defendant must use negative adwords as well on search engines. Here is the pertinent language:

[Defendant is enjoined and restrained] from purchasing or using any form of advertising including keywords or “adwords” in internet advertising containing any mark incorporating Plaintiff’s Mark, or any confusingly similar mark, and shall, when purchasing internet advertising using keywords, adwords or the like, require the activation of the term “ORION” as negative keywords or negative adwords in any internet advertising purchased or used.

So here the mark is Orion. The defendant has been found to have infringed. The normal range of prohibited future activities is in place. But in addition, the defendant must take steps to prevent its appearance on a search engine results page when someone is looking for the plaintiff’s services. The court explains:

For purposes of this court order, a “negative keyword” or “negative adword” shall mean a special kind of advertiser keyword matching option that allows an advertiser to prevent its advertisement from appearing when the specific terms are a part of a given user’s internet search or search string. It does not infer that the Defendant may use the specified negative keywords or adwords for any other purpose.

Now it seems the defendant was rather blatantly trying to use the plaintiff’s mark (counsel appeared but an answer was not filed). Yet, if the plaintiff’s mark and business match the litany of strength that the court offers (“ranked fourth in the nation among community bank holding companies and thrifts for outstanding performance,” “In June of 2006, Plaintiff was ranked as Florida’s Top Performing Community Bank for the second consecutive year, and was also ranked among the nation’s top performing bank holding companies,” “In June of this year, American Bankers Association’s (ABA) Banking Journal, ranked Orion Bancorp, Inc., fifth in the nation for outstanding financial performance”), wouldn’t a competitor want to be able to appear when someone searched for the premiere bank of the region? Shouldn’t that be allowed?

Continue reading "Don’t Even Think About It: Negative Ad Words and Trademark Injunctions"

Posted by Deven Desai at 06:50 PM | Comments (3) | TrackBack (0)

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Sure, it was a leak, possibly politically motivated. But for 24 hours, every Italian's tax information was publicly available on the web.

The finance ministry described the move as a bid to improve transparency.

Deputy Economic Minister Vincenzo Visco said he could not understand what all the fuss was about.

"I can't understand what the problem is," he is quoted as telling Italy's Corriere della Sera newspaper.

"This already exists all around the world, you just have to watch any American soap to see that. We had the system ready by January but we delayed publication to avoid arguments during the election campaign."

I can't imagine what Visco means by American soap opera's treatment of tax law, but I myself would be perfectly happy in a world where folks' tax filings were transparent. (In part, of course, the cost to me isn't terribly low, as I'm sure that the public institution I work for will eventually be compelled to disclose salary data. Similarly, government officials, whose salaries are knowable, have small incentives to care about privacy). But even so, wouldn't the privacy losses we'd all feel be balanced by the pro-social consequences of transparency? For example, I'd bet that you'd see a rise in competitive charitable giving, and more pressure on unequal pay for equal work.

Posted by Dave Hoffman at 05:54 PM | Comments (8) | TrackBack (0)

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Check out this terrific article in Fortune about Steve Jobs. As the article points out, far more than most corporate leaders, Jobs is personally identified with Apple's brand:

Jobs is also among the most controversial figures in business. He oozes smug superiority, lacing his public comments with ridicule of Apple's rivals, which he casts as mediocre, evil, and - worst of all - lacking taste. No CEO is more willful, or more brazen, at making his own rules, in ways both good and bad. And no CEO is more personally identified with - and controlling of - the day-to-day affairs of his business. Even now, Jobs views himself less as a mogul than as an artist, Apple's creator-in-chief. He has listed himself as "co-inventor" on 103 separate Apple patents, everything from the user interface for the iPod to the support system for the glass staircase used in Apple's dazzling retail stores.

That personal identification makes disclosure of an executive health issues a tricky materiality problem. When Jobs was diagnosed with cancer in 2003, the relationship between Jobs' body and Apple's SEC filings was front-and-center:

Jobs put the procedure [surgery] off for more than nine months, raising the thorny issue of disclosure. He told the board, and the board decided to say nothing. Palo Alto attorney Larry Sonsini, the company's longtime outside counsel, advised the directors that the CEO's right to privacy trumped any disclosure requirement as long as he could continue to perform his duties. A second outside lawyer agreed.

So Apple conducted business as usual, disclosing nothing and letting the tiny circle of insiders who knew about the situation continue to trade Apple shares.

Had Jobs' health gone sour, could investors have successfully claimed that Apple failed to disclose material facts? I tend to think so, and don't think much (at all) of the balancing privacy interest. It strikes me that, no less than presidential candidates, CEOs of publicly traded firms have contracted away their right to a private medical life. That said, the authority on these issues is really Joan MacLeod Heminway, whose Personal Facts About Executive Officers: A Proposal for Tailored Disclosures to Encourage Reasonable Investor Behavior really sets up the problem nicely.

Posted by Dave Hoffman at 04:09 PM | Comments (7) | TrackBack (0)

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The Oregonian reports that Adidas won an astronomical $305 million trademark infringement verdict against discount retailer Payless Shoes this morning. Trademark blogger Marty Schwimmer can't think of another infringement verdict even close to this size, and neither can I. Most trademark litigators would consider any case worth more than $25 million a very big one.

Payless lost most of its key legal arguments in a set of pretrial rulings back in February, as Rebecca Tushnet explained at the time. But even if one might have predicted an Adidas victory at that point, I think its magnitude is pretty surprising. It doesn't look like this award is vulnerable to a due process attack in the vein of BMW v. Gore and State Farm, however, because the punitive damages appear to have been calculated to represent double the Payless profits attributable to the infringement ($30.6 million in actual damages, $137 million in profits, and $137 million in punitive damages). In those cases, by contrast, the ratio of punitive to actual damages was many times greater (145:1 in State Farm).

The dispute centers on 268 different Payless sneakers with parallel stripes. (Images here.) Adidas has a trademark for three parallel stripes on the side of a shoe. The jury found that all but one of the Payless versions, with various numbers of stripes on the side, infringed on that trademark.

Some might consider those stripes a pretty basic aspect of sneakers. I remember all my sneakers as a kid looking like that, and I think they were usually Keds. Indeed, one of my 4-year-old daughter's favorite books, Alexander and the Terrible, Horrible, No Good, Very Bad Day, written in 1972, illustrates the point very nicely (sign into Amazon here for the image):

So then we went to the shoestore to buy some sneakers. Anthony chose white ones with blue stripes. Nick chose red ones with white stripes. I chose blue ones with red stripes but then the shoe man said, We're all sold out. They made me buy plain old white ones, but they can't make me wear them. ... It was a terrible, horrible, no good, very bad day.

I think the Payless attorneys know just how you feel, Alexander. ("The jury found that stripes on sneakers identify Adidas as their source in the public mind, and I still have to pay the lawyers, and now we have to file the post-verdict motion to set aside the damages and then the appeal. And I have to wear my railroad train pajamas, and I hate my railroad train pajamas.")

[Cross-posted on Info/Law]

Posted by William McGeveran at 04:02 PM | Comments (1) | TrackBack (0)

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I'm happy to point out that my article, Docketology, District Courts and Doctrine, is now in print in Volume 85 of the Washington University Law Review. You can find previous discussion of the piece on this blog, starting here. The final version is significantly improved over the drafts, so I hope you'll check it out. If anyone is motivated by the article to try some dockets research, let me know know, and I will tell you all the ways I've messed it up in the past!

Coming next: Docketology, Part II.

Posted by Dave Hoffman at 03:41 PM | Comments (0) | TrackBack (0)

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What is happening at Princeton University? My sense of this is not exactly systematic, but it is real--Princeton's political science faculty seems not to have become capture to many of the methodological features of the behavioral revolution that have captured many of the political science departments of other universities, at least when it comes to the study of law and courts.

Consider, first, that Princeton's political science department is called its Department of Politics rather than its Department of Political Science. At the time when the behavioral revolution (or more exactly, the attitudinal revolution) was initially sweeping political science studies of courts, Princeton had the interdisciplinary but not really deeply attitudinal Walter Murphy (who in many ways followed in the steps of Edward Corwin). Now, Princeton has had on its politics faculty in recent times Gary Bass, Christopher Eisgruber, Kenneth Kersch, Andrew Moravcsik, Kim Lane Scheppele, Anne-Marie Slaughter, Keith Whittington, and Jennifer Widner--all writing about courts and law, one way or another.

All first-rate scholars, but none really behavioralists. Compare this to the approach to courts and law of other elite political science departments, where scholars either ignore courts altogether (if Cindy Skach does not count, then Harvard has not really had a judicial politics scholar since Martin Shapiro left) or study courts as behavioralists. And even departments that have judicial politics scholars do not have as many as Princeton has now and has had in the past.

I cannot admit to as much knowledge about Princeton's other departments, so I wonder if this is true of their other departments, and what explains these (notable) dissents from behavioralism in their political science department and potentially other departments.....

Posted by David Fontana at 10:29 AM | Comments (4) | TrackBack (0)

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The New York Times has run a feature article about my colleague John Duffy, who has written a very influential paper on the appointment of patent judges. John's paper, Are Administrative Patent Judges Unconstitutional?, is available at SSRN. From the abstract:

As amended in 1999, 35 U.S.C. § 6 authorizes the Director of the Patent and Trademark Office (PTO) to appoint all administrative patent judges of the Board of Patent Appeals and Interferences. That method of appointment is almost certainly unconstitutional, and the administrative patent judges serving under such appointments are likely to be viewed by the courts as having no constitutionally valid governmental authority. The full extent of the problem was revealed in a recent statement to the press by a PTO spokeswoman, who disclosed that nearly two-thirds of the agency's administrative patent judges were appointed under the new statute. If administrative patent judges are being randomly assigned to three-judge panels, then a simple probability calculation shows that more than 95% of Board panels are likely to include at least one unconstitutionally appointed judge.

According to the New York Times:

Law professors are sometimes influential, but in a general way. Their insights can help shape the law, over time and at the margins.

But John F. Duffy, who teaches at the George Washington University Law School, is a different kind of law professor. He has discovered a constitutional flaw in the appointment process over the last eight years for judges who decide patent appeals and disputes, and his short paper documenting the problem seems poised to undo thousands of patent decisions concerning claims worth billions of dollars. . . .

The problem Professor Duffy identified at least arguably invalidates every decision of the patent court decided by a three-judge panel that included at least one judge appointed after March 2000.

John's paper began as a blog post. It is now a short paper on SSRN. It is quite an achievement to turn an entire field upside down in just 11 pages!

Posted by Daniel J. Solove at 01:51 AM | Comments (2) | TrackBack (0)

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Can a company sign an airtight "nondisparagement" agreement with a departing employee? That's one question raised by this fascinating post at Above the Law. It reprints an email by a departing associate who essentially accuses a firm of trying to hide the real reason for her being let go. At one point she states:

As for your request for a release, non-disclosure, and non-disparagement agreement in return for three months' pay, I reject it. Unlike you, I am not just a paid mouthpiece with no independent judgment. I will decide how and to whom to communicate how you have treated me. I find it ironic that you would try to buy the right not to be disparaged after behaving as you have. Your actions speak volumes, and you don't need much help from me in damaging your reputation.

This is not my area, but I find work in the general field of regulation of information flow fascinating. This news story by Adam Liptak suggests that while "settlements for silence" are generally enforceable, there are several reasons why a beneficiary of one may not seek to enforce it. Richard Epstein has argued for a "better coordination" of contract and free speech law here, and his proposal would largely eliminate public policy exceptions (and First Amendment defenses) to enforcement. Epstein argues that "where true information is obtained illegally-- whether by trespass, fraud, or breach of confidence or contract--the presumption should shift sharply in the other direction, so that both damages and injunctive relief are made available to the party with the right to keep that information confidential."

Posted by Frank Pasquale at 08:12 PM | Comments (3) | TrackBack (0)

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When I was in grad school in England, one of the dorms had a radiator that required the user to insert pound coins into a slot for heat. I found this bizarre at the time. . . but perhaps it will be a model for hospitals soon. As an article entitled "Cash Before Chemo" suggests, IV drips may as well include credit card readers in some hospitals:

[For the effectively uninsured Mrs. Kelly,] [c]hemotherapy would continue for more than a year, as would requests for upfront payments. At times, she arrived at the hospital and learned her appointment was "blocked." That meant she needed to go to the business office first and make a payment. One day, Mrs. Kelly says, nurses wouldn't change the chemotherapy bag in her pump until her husband made a new payment. She says she sat for an hour hooked up to a pump that beeped that it was out of medicine, until he returned with proof of payment.

To the Journal's credit, reporter Barbara Martinez reveals the complexity of the story. . . including the fact that Mrs. Kelly's household appears to have rental income of about "$11,000 a month before taxes and maintenance costs [and] interest income of about $35,000 a year from two retirement accounts." So why didn't they have insurance? Turns out Mrs. Kelly did, but was part of an ever-growing group of underinsured Americans:

Continue reading "Marketized Health Care: Some Horrible Choices at the Margin"

Posted by Frank Pasquale at 06:17 PM | Comments (0) | TrackBack (0)

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Last month, the Supreme Court issued an opinion in a little-discussed but methodologically intriguing statutory interpretation case called Begay v. United States. Begay addresses the range of predicate convictions that qualify a defendant for sentence enhancement under the Armed Career Criminal Act of 1984 (the “ACCA”), 18 U.S.C. §924(e). The sentencing enhancement provision is one which the Court addressed last term (2006-2007) in the context of a different predicate offense, in a case called James v. United States. Taken in tandem, the two cases intrigue because despite involving the same statutory provision and being decided by the same nine justices (no retirements or replacements in the interim), they produced different outcomes, different voting coalitions, and even different reasoning by some Justices.

At issue in both cases is a provision of the ACCA that imposes a mandatory 15-year minimum sentence on an offender who possesses a firearm while committing a felony IF the offender previously was convicted of three “violent felonies” or “serious drug offenses.” The Act defines “violent felony” to include any adult crime punishable by at least one year’s imprisonment that “is burglary, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another.” 18 U.S.C. §924(e)(2)(B)(ii). This last clause is referred to as the “otherwise” or “residual” clause and is the provision subject to interpretation in both Begay and James. In James, the question presented was whether a conviction for “attempted burglary” falls within the residual clause; in Begay it was whether a conviction for driving under the influence of alcohol (DUI) does. (Under New Mexico law, DUI becomes a felony punishable by a prison term of more than one year the fourth time an individual commits it; by the time of his federal offense, Begay had twelve DUI convictions, nine of which counted as felonies under New Mexico law.)

The Court, in two fractured opinions, answered the presented questions “yes” in James (attempted burglary counts) and “no” in Begay (a DUI does not count). Only three Justices were in the majority in both cases. Only one Justice dissented in both. So, what is going on with Justices’ reasoning? The following roadmap attempts to explain:

Continue reading "Dejá-Vu in Begay v. United States"

Posted by Anita S. Krishnakumar at 01:09 PM | Comments (3) | TrackBack (0)

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The Computer History Museum “is dedicated to the preservation and celebration of computing history.” A current exhibit is a working version of Charles Babbage’s difference engine which is seen as a 19th Century computer design that was never built for a host of reasons from personality to claims that it could not be built with the technology of the time. The man and his machine are described here. One man, Doron Swade, has not only chronicled Babbage’s life of invention, difficulty in working with other people, and on-going quest for a computing machine but built one of the computing machines using methods available in Babbage’s era.

The machine was built, and the story of Nathan Myhrvold’s desire to have one built for him and shipped to the United States is here. Luckily the machine is on display at the Computer History Museum until May, 2009. Here is a video about the machine and the exhibit.

cross-posted at Madisonian

Posted by Deven Desai at 12:39 PM | Comments (0) | TrackBack (0)

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Recently Ben Barres, a professor of neurobiology, gave a fascinating talk at Harvard titled "Some Reflections on the Dearth of Women in Science." His talk was based on his Nature article "Does Gender Matter" (to achievement in the sciences). I found the talk an extraordinary confirmation of my earlier worries about self-fulfilling prophecies and bias in the blogosphere.

Barres was responding to Steven Pinker's book The Blank Slate: The Modern Denial of Human Nature, which, according to Barres, argues that men are innately "more aggressive and ambitious" and women innately "feel emotions more strongly" and "prefer to take care of children." Barres explored how Rosalyn Barnett and Carolyn Rivers' book Same Difference: How Gender Myths are Hurting our Relationships, Our Children, and Our Jobs extensively undermined such ideas, exploring the numerous "nurture" based rationales for differences Pinker saw as innate. Barres recited several studies evidencing "gender prejudice" that influences choices from the very earliest stages of child development. His slide show (available here) also raised serious questions about Pinker's neo-Darwinian agenda, tracing bias in it all the way back to Darwin's 1871 Descent of Man, which argued that "The chief distinction in the intellectual powers of the two sexes is shown by man's attaining to a higher eminence, in whatever he takes up, than can woman." (In 1985, Richard Lewontin responded that "biological determinists have never found any credible concrete basis for such differences.").

After punching various holes in Pinker's scientific program, Barres concluded that "When faculty tell their students that they are innately inferior based on race or gender they are crossing a line that should not be crossed –the line that divides responsible free speech from verbal violence." His comments bring to mind a struggle for the soul of academia--whether the university is defined by either a) a libertarian willingness to entertain *any* idea or b) a communitarian belief that academics are part of a larger process of social inquiry designed to improve the world. The former idea is a tempting for many, but when we try to recognize the range of research programs that are actually worthwhile to accomplish, we quickly see that such rules of recognition are themselves parasitic on situated concepts of what is important to us and what aspects of our tradition are most worth promoting. Barres points out that the mere act of setting an agenda of inquiry can itself not merely manifest, but also promote, the very biases the inquirer claims merely to be exploring.

Consider, for instance, an academic department set up to explore Pinker's hypothesis that "Religion is a desperate measure that people resort to when the stakes are high and they have exhausted the usual techniques for the causation of success." Or the question of whether academics should study the propriety of torture in the service of national security. We may all want to pat ourselves on the back for being brave enough to consider such inquires. (In the same manner as, say, Pinker appears to be proud to consider dangerous ideas.) Yet as Raimond Gaita has argued, sometimes an "open mind" can also be a (morally) empty one. Gaita argues that "Society is in fact defined by what is undiscussable."

Posted by Frank Pasquale at 09:55 AM | Comments (11) | TrackBack (0)

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I'm very pleased to announce that Professor James Grimmelmann will be guest blogging with us this month. James is an associate professor at New York Law School and a member of its Institute for Information Law and Policy. He received his J.D. from Yale Law School, where he was Editor-in-Chief of LawMeme and a member of the Yale Law Journal. Prior to law school, he received an A.B. in computer science from Harvard College and worked as a programmer for Microsoft. He has served as a Resident Fellow of the Information Society Project at Yale, as a legal intern for Creative Commons and the Electronic Frontier Foundation, and as a law clerk to the Honorable Maryanne Trump Barry of the United States Court of Appeals for the Third Circuit.

James studies how the law governing the creation and use of computer software affects the distribution of wealth, power, and freedom in society. As a lawyer and technologist, he aims to help these two groups speak intelligibly to each other. He writes on such topics as intellectual property, virtual worlds, search engines, electronic commerce, online privacy, and the use of software as a regulator.

James blogs at his blog, The Laboratorium.

Some of his publications include:
* Information Policy for the Library of Babel, 3 J. Bus. & Tech. L. 29 (2008)
* The Structure of Search Engine Law, 93 Iowa L. Rev. 1 (2007)
* Virtual Borders: The Interdependence of Real and Virtual Worlds, First Monday (Feb. 2006)
* Regulation by Software, 114 Yale Law Journal 1719 (2005)

Posted by Daniel J. Solove at 12:14 AM | Comments (0) | TrackBack (0)

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The George Washington Law Review, Issue 76:3 (April 2008)

(Contents of current and past issues are available from our website.)

Articles:

Catherine M. Sharkey, Products Liability Preemption: An Institutional Approach, 76 Geo. Wash. L. Rev. 449 (2008) [PDF]

Michael Selmi, Interpreting the Americans with Disabilities Act: Why the Supreme Court Rewrote the Statute, and Why Congress Did Not Care, 76 Geo. Wash. L. Rev. 522 (2008) [PDF]

Alexandra D. Lahav, Bellwether Trials, 76 Geo. Wash. L. Rev. 576 (2008) [PDF]

David H. Gans, Severability as Judicial Lawmaking, 76 Geo. Wash. L. Rev. 639 (2008) [PDF]

Notes:

C. Vered Jona, Cleaning Up for Congress: Why Courts Should Reject the Presumption of Severability in the Face of Intentionally Unconstitutional Legislation, 76 Geo. Wash. L. Rev. 698 (2008) [PDF]

Michael D. Barolsky, High Schools Are Not Highways: How Dole Frees States from the Unconstitutional Coercion of No Child Left Behind, 76 Geo. Wash. L. Rev. 725 (2008) [PDF]

Elisa Kantor, New Threats, Old Problems: Adhering to Brandenburg’s Imminence Requirement in Terrorism Prosecutions, 76 Geo. Wash. L. Rev. 752 (2008) [PDF]

Jennifer Park, Balancing Rehabilitation and Punishment: A Legislative Solution for Unconstitutional Juvenile Waiver Policies, 76 Geo. Wash. L. Rev. 786 (2008) [PDF]

Posted by George Washington Law Review at 10:32 AM | Comments (0) | TrackBack (0)

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Everyone probably has their list of most underrated legal scholars. At the top of my list would stand Alec Stone Sweet. I have never met him, never taken a class with him, and wouldn't recognize him if he walked into the GW faculty lounge on Monday. But I think his work is enormously important, and enormously good.

I say this for two reasons. First, he reestalblished a dormant field of legal scholarship, comparative constitutional law. I have written before about how comparative constitutional scholarship was a vibrant subject of academic writing for much of the history of American scholarship. This was true in the early years of political science, and in the eary years of constitutional scholarship. But in many ways it died down. Stone Sweet's book on judicial politics in France was published in 1992, right around the time that scholars were becoming interested in comparative constitutional issues again (with the recent collapse of the Soviet Empire and the creation of new constitutions in Central and Eastern Europe), and his other writings around that time serve in many ways as the first generation of recent scholarship on these issues.

Second, his writings are part of increasingly important positive accounts of judicial behavior. He has written pieces about how courts come to exercise power, how they operate in different systems of judicial review, and so on. Again, these articles were part of the first generation of recent scholarship on another important area, positive political theory.

Yet, for some reason, when I mention his articles to many who write on constitutional issues, his name is not known to them. This is a shame.

Posted by David Fontana at 08:08 AM | Comments (1) | TrackBack (0)

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As the semester draws to a close, I'll be adding a couple features to my blogging here. First, there's always a big pile of stuff each week I'd like to blog on, but don't get around to. So I'll just post links to the articles, ala Tyler Cowen. Second, I'll be trying to do a series on art & politics this season. Having lamented the press repeatedly, I think I owe it to readers to comment on people who are thinking more creatively about the political scene. . . including Kenneth Tin-Kin Hung, Timothy Donnelly, MIA, and Paul Chan. Without further adieu:

1. Have a tough time memorizing things? Check out this software program by Piotr Wozniak (which I'm definitely consulting if I try to re-learn Spanish).

2. Patrick S. O'Donnell both comments incisively on the food crisis and rounds up posts from around the blawgosphere. O'Donnell and Paul Horwitz have an interesting discussion on sustainability here. My own take would begin by comparing an article on the new living standards of very poor persons, and one on a "Club Med for Dogs."

3. China's new weapon: Low executive pay. Over to you, Todd Henderson.

4. Yale U. Press leads the way in opening access to books on internet topics. [Full disclosure: they do advertise here.]

Have a great weekend.

Posted by Frank Pasquale at 04:32 PM | Comments (0) | TrackBack (0)

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Law & Politics Book Review has recently published an issue with short book reviews of many great works of literature with legal and political themes. The issue is available online here.

Here is the table of contents:

Continue reading "Law & Politics Book Review on Law & Literature"

Posted by Daniel J. Solove at 10:23 PM | Comments (1) | TrackBack (0)

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Here's a hilarious video imagining what a social network website encounter would be like in real life.

One of the difficulties with social network websites is that they present a very simplified picture of human relationships. A person's social world cannot readily be divided up into friends and not-friends. Human relationships are much more complicated and diverse. The simplified matrix of relationships available on social network websites can result in some awkwardness, and it can also result in too much information disclosure. We might want to disclose a lot of information to certain close friends, but much less information to acquaintances or to friends in a more professional context. There is no easy solution for this problem, because a social network website with hundreds of categories for relationships might be rather complicated and oppressive to use. And people might not be pleased to know precisely where on one's relationship matrix they stand. Jack might think he's good friends with Jill, but Jill might classify him as merely a distant acquaintance whom she merely wants to associate with for the purpose of climbing hills.

Hat tip: Sivacracy

Posted by Daniel J. Solove at 08:00 PM | Comments (2) | TrackBack (0)

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