Tagged: Supreme Court

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Supreme Court Gives Patent Law New Bite (Definiteness)

I want to thank Danielle Citron and the other folks at Concurring Opinions for inviting me to blog.  As Danielle mentioned in her introduction, I am a law professor at the University of Colorado Law School focused on technology and law.  (More info about me is here: http://harrysurden.com; Twitter: @Harry Surden).

Patent Law’s Definiteness Requirement Has New Bite

The Supreme Court may have shaken up patent law quite a bit with its recent opinion in the Nautilus v. Biosig case (June 2, 2014).

At issue was patent law’s “definiteness” requirement, which is related to patent boundaries. As I (and others) have argued, uncertainty about patent boundaries (due to vague, broad and ambiguous claim language), and lack of notice as to the bounds of patent rights, is a major problem in patent law.

I will briefly explain patent law’s definiteness requirement, and then how the Supreme Court’s new definiteness standard may prove to be a significant change in patent law. In short – many patent claims – particularly those with vague or ambiguous language – may now be vulnerable to invalidity attacks following the Supreme Court’s new standard.

Patent Claims: Words Describing Inventions

In order to understand “definiteness”, it’s important to start with some patent law basics.  Patent law gives the patent holder exclusive rights over inventions – the right to prevent others from making, selling, or using a patented invention.  How do we know what inventions are covered by a particular patent?  They are described in the patent claims. 

Notably, patent claims describe the inventions that they cover using (primarily) words.

For instance, in the Supreme Court case at issue, the patent holder – Biosig – patented an invention – a heart-rate monitor.  Their patent used the following claim language to delineate their invention :

I claim a heart rate monitor for use in association with exercise apparatus comprising…

live electrode

and a first common electrode mounted on said first half

 In spaced relationship with each other…”

Screen Shot 2014-06-06 at 9.32.30 AM

So basically, the invention claimed was the kind of heart rate monitor that you might find on a treadmill.   The portion of the claim above described one part of the overall invention – two electrodes separated by some amount of space.  Presumably the exercising person holds on to these electrodes as she exercises, and the device reads the heart rate.

( Note: only a small part of the patent claim is shown – the actual claim is much longer)

Patent Infringement: Comparing Words to Physical Products

So what is the relationship between the words of a patent claim and patent infringement?

In a typical patent infringement lawsuit, the patent holder alleges that the defendant is making or selling some product or process (here a product) that is covered by the language of a patent claim (the “accused product”).  To determine literal patent infringement, we compare the words of the patent claim to the defendant’s product, to see if the defendant’s product corresponds to what is delineated in the plaintiff’s patent claims.

For instance, in this case, Biosig alleged that Nautilus was selling a competing, infringing heart-rate monitor.  Literal patent infringement would be determined by comparing the words of Biosig’s patent claim (e.g. “a heart rate monitor with a live electrode…”) to a physical object –  the competing heart-rate monitor product that Nautilus was selling (e.g. does Nautilus’ heart rate monitor have a part that can be considered a “live electrode”)?

Literal patent infringement is determined by systematically marching through each element (or described part) in Biosig’s patent claim, and comparing it to Nautilus’s competing product. If Nautilus’ competing product has every one of the “elements” (or parts) listed in Biosig’s patent claim, then Nautilus’s product would literally infringe Biosig’s patent claim.

If patent infringement is found, a patent holder can receive damages or in some cases, use the power of the court  to prevent the competitor from selling the product through an injunction.

Patent Claims – A Delicate Balance with Words

Writing patent claims involves a delicate balance.  On the one hand, a patent claim must be written in broad enough language that such a patent claim will cover competitors’ future products.

Why?  Well, imagine that Biosig had written their patent claim narrowly.  This would mean that in place of the broad language actually used (e.g. “electrodes in a spaced relationship”), Biosig had instead described the particular characteristics of the heart-rate monitor product that Biosig sold.  For instance, if Biosig’s heart-rate monitor product had two electrodes that were located exactly 4 inches apart, Biosig could have written their patent claim with language saying, “We claim a heart rate monitor with two electrodes exactly 4 inches apart” rather than the general language they actually used, the two electrodes separated by a “spaced relationship”

However, had Biosig written such a narrow patent, it might not be commercially valuable.  Competing makers of heart rate monitors such as Nautilus could easily change their products to “invent around” the claim so as not to infringe. A competitor might be able to avoid literally infringing by creating a heart-rate monitor with electrodes that were 8 inches apart.  For literal infringement purposes, a device with electrodes 8 inches apart would not literally infringe a patent that claims electrodes “exactly 4 inches apart.”

From a patent holder’s perspective, it is not ideal to write a patent claim too narrowly, because for a patent to be valuable, it has to be broad enough to cover the future products of your competitors in such a way that they can’t easily “invent around” and avoid infringement.  A patent claim is only as valuable (trolls aside) as the products or processes that fall under the patent claim words.  If you have a patent, but its claims do not cover any actual products or processes in the world because it is written too narrowly, it will not be commercially valuable.

Thus, general or abstract words (like “spaced relationship”) are often beneficial for patent holders, because they are often linguistically flexible enough to cover more variations of competitors’ future products.

Patent Uncertainty – Bad for Competitors (and the Public)

By contrast, general, broad, or abstract claim words are often not good for competitors (or the public generally).  Patent claims delineate the boundaries or “metes-and-bounds” of patent legal rights  Other firms would like to know where their competitors’ patent rights begin and end.  This is so that they can estimate their risk of patent liability, know when to license, and in some cases, make products that avoid infringing their competitors’ patents.

However, when patent claim words are abstract, or highly uncertain, or have multiple plausible interpretations, firms cannot easily determine where their competitor’s patent rights end, and where they have the freedom to operate.  This can create a zone of uncertainty around research and development generally in certain areas of invention, perhaps reducing overall inventive activity for the public.

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SCOTUSblog files credentialing appeal to Senate

lyle-denniston

Lyle Denniston

Over at SCOTUSblog a letter has been filed with Laura Lytle of the Senate Press Gallery in connection with the Blog’s appeal of the Standing Committee’s decision not to renew Lyle Denniston’s press credential. In early April, the Senate Press Gallery denied SCOTUSblog’s application for a press pass, and advised that it would refuse to renew the credential it had previously granted Mr. Denniston when it expires this month. The Supreme Court’s longstanding policy is to look to credentials issued by the Senate in connection with its own credentialing.

SCOTUSblog pursued a Senate credential for several years, modifying its blog policies to address the concerns expressed by the Gallery. Last year, SCOTUSblog succeeded – the Senate Press Gallery credentialed Mr. Denniston as a reporter for SCOTUSblog. That credential was then presented to the Supreme Court. The Court, however, declined to recognize the credential, explaining that it would instead review its credentialing policy.  The Court has yet to indicate when that review will conclude.

Before the Senate issued a credential to Mr. Denniston, the Court recognized him based on his work for WBUR radio in Boston. That remains unchanged. Additionally, as an interim measure during the review of its policies, SCOTUSblog requested public seats for the cases that Amy Howe (SCOTUSblog’s editor) was covering. The Court has granted those requests.

According to Tom Goldstein (the publisher of SCOTUSblog), “the Senate Press Gallery’s decision to deny us a credential is important to us.  We wanted the credential in substantial part because we cover Supreme Court-related matters in the Senate.  Most significantly, we do gavel-to-gavel, liveblog coverage of Supreme Court nominations. We also expect to cover hearings related to the Court’s budget.  So those efforts are now more difficult.”

Among other things, the May 14th letter to the Senate states:

As a result of [its] extensive coverage, the blog has built a substantial readership: On the days when the Court is issuing decisions during the middle of the Term (i.e., before periods of the public’s peak interest), it averages nearly sixty thousand unique visits per day, and it has roughly 160,000 Twitter followers. In addition, the blog has over ten thousand subscribers to its RSS feed, along with over five thousand subscribers for its email updates. 

A number of issues are addressed in the letter along with the nature of the Blog’s financial and editorial operations.

(NB: I serve as the Blog’s book editor and contribute to it. I have not, however, been involved in any credentialing matters for the Blog and have likewise not discussed the matter with its publisher, editor, or staff.)

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FAN 14 (First Amendment News) — Why the Justices vote as they do in First Amendment Free Expression Cases (updated)

As I mentioned in an earlier column, there is a new empirical study entitled “Do Justices Defend the Speech They Hate? In-Group Bias, Opportunism, and the First Amendment.” The study was done by Professors Lee EpsteinChristopher M. Parker, & Jeffrey A. Segal. Since I just introduced that study in a cursory fashion, I wanted to say a bit more about the study and its findings.  

→ Let us start here with this admonition to lawyers and scholars: The ideological status (or “grouping”) of the party bringing a First Amendment challenge (speech, press, assembly, or association) may well determine the outcome. That, at least, is the general takeaway point from this new study done by three political scientists (Lee Epstein is also a law professor). In other words, the focus is not simply on the legal claim in the abstract or on the ideological makeup of the judge in general. It is an old but forgotten lesson: the right plaintiff can make or break the case. But here the right plaintiff depends on aligning his or her ideological grouping with that of a majority of the Justices hearing the case. If you doubt it, the authors argue, simply consider the ideological divide in cases such as Boy Scouts v. Dale or Madsen v. Women’s Health Center or  Morse v. Frederick or Citizens United or Garcetti v. Ceballos.

Such “in-group bias,” the authors maintain, “leads to the hypothesis that judges engage in opportunistic behavior following from litigant favoritism.” To buttress their general claim, Epstein, Parker, and Segal examined 4,519 votes of the Justices in 516 First Amendment free expression cases decided between the 1953-2010 Court Terms. Based on their examination they concluded that “the Justices’ votes tend to reflect their preferences towards the speakers’ ideological grouping, and not solely an underlying taste for the First Amendment qua Amendment.” While scholars such as Emily Bazelon (see here) and Adam Winkler (see here) have made similar points, this study is the first one to make the case based on a systematic examination of a large number of First Amendment cases and the voting patterns of 33 Justices (from Hugo Black to Elena Kagan). Again, below is one of the tables setting out some of the authors’ findings:Screen Shot 2014-05-05 at 3.25.12 PM

Here are three questions for Professors Epstein, Parker and Segal:

1.) How might one categorize the ideological grouping of, say, the litigant in United States v. Stevens where the Court voted 8-1 to sustain the First Amendment claim? Or what about the ideological grouping of the litigant in United States v. Alvarez, where the Court sustained a free speech claim by a 6-3 margin? Or what about Knox v. Service Employees International Union where the Court voted 7-2 to uphold the First Amendment claim (with Justices Sotomayor and Ginsburg in the majority)?

2.)  What about the rule and reasoning of a case? That is, even if, say, conservative Justices favor a litigant based on some ideological similarity with their own views, might not that ruling and the logic of the case serve to benefit “liberal” litigants in future cases? Or as Howard Wasserman (I assume he is Professor Wasserman) put it in a comment to my last post: “Is there a problem relying entirely on results and votes rather than reasoning? This would be more meaningful if a justice came out diametrically opposite in two cases that were identical but for the identity and political persuasion of the speaker and that involved the same constitutional test, analysis, or standard.”

3.) What are we to make of unanimous rulings like the ones in First Amendment cases such as New York State Bd. of Elections v. Lopez Torres or Locke v. Karass or Rumsfeld v. Forum for Academic & Institutional Rights?

The authors have kindly replied, and their response is set out below:

The first and third questions seem to address a similar issue, which is the extent to which factors outside of ideology influence voting on the Court. While we argue that ideology is a major component of a Justice’s vote, it is not the only factor.  The influence of ideology does not mean that other legal or institutional issues may play a role in voting. For example, our model finds that Justices are less likely to support freedom of association claims as compared to their support for speech in purer free speech cases. We also find that justices are less likely to support speech that violates a federal law as compared to a state or local law. So while ideology plays a significant role in voting, that does not preclude the possibility that we will see larger, or even unanimous majorities on some of the “easier” free speech cases.

Some of the cases you mentioned, like U.S. v. Stevens and Knox v. Service Employees International Union, may also create ideological ambivalence in Justices.  For example, do liberal Justices continue to vote against anti-obscenity laws or uphold a law aimed at preventing animal cruelty (in Stevens), or do they support labor unions or individual workers (in Knox)?  This may help explain why we see ideologically mixed coalitions in some cases.

The second question deals with the possibility that a liberal (or conservative) Justice may vote to create a precedent that benefits liberals (conservatives) in the short term but can be exploited by the other side in future cases. There is always the potential for this, although we think it is significantly mitigated in many of the most controversial free speech cases recently.  Where we see the clearest ideological splits are on cases that create a new standard that is likely to consistently benefit one side over another. For example, campaign finance cases that uphold the money-as-speech standard and continuously loosen restrictions on this form of speech apply to both conservative and liberal donors.  However, in terms of support for restrictions on this type of speech liberals consistently support regulations while conservatives oppose them. So rulings that remove restrictions on campaign spending will endorse the conservative vision of the role of money in politics, regardless of whether or not it benefits liberal donors as well.

Similarly, in cases involving abortion protesters may be facially neutral and create a standard that supports all forms of public protesters, but it is pretty clear that the decisions on these cases are going to affect pro-life protesters much more than any other group. While a reversal of Hill v. Colorado in the forthcoming McCullen v. Coakley decision could be used by liberal protesters (such as an Occupy Wall Street type protest), the conservative justices could also distinguish the precedent to apply more narrowly to abortion protests given their unique nature.  Or if Hill v. Colorado is upheld liberal justices could state that the unique history of violence on the part of pro-life protesters limits that precedent to restricting protesting outside of health facilities but not peaceful protests like Occupy Wall Street. Given these circumstances it is not surprising that we consistently see 5-4 votes along ideological lines in campaign finance and abortion protest cases.

[Hat tip to Professor Parker for helping to expedite this reply and thanks to all of the authors for accommodating our readers.]

Meanwhile, I wonder how far ideological labeling can take us. While I do not deny the importance of this fact and this important new study, I think it well to remember that labels like “conservative” or “liberal” also change over time. For example, recall the lineup in the 5-4 Posadas commercial speech case wherein the conservatives voted against the First Amendment claim and the liberals for it. Furthermore, how likely is it that traditional First Amendment conservative Justices like, say, Felix Frankfurter or Byron White would have joined their contemporary counterparts in sustaining a free speech claim in a cases such as United States v. Stevens or Brown v. Entertainment Merchants Association? My point: ideological turf sometimes shifts over time and labels take on new meanings (or become blurred).

To be continued? Let me know what you think and we may well post more. (One more thing: a big welcome to our colleagues in Political Science. Please keep us abreast of your work in the First Amendment field.)

Bopp is Back!

James Bopp, Jr. is the man who, among other things, first brought the legal challenges in the Citizens United and McCutcheon cases. He is, I gather, now about to file a lawsuit before a three-judge court in a federal district court in the District of Columbia. When filed, the complaint will petition the court to allow national and state parties to form super PACs that can raise and spend unlimited amounts on election campaigns, something the Federal Election Commission has barred. According to a Washington Times news report, “current rules for soft money require that state and local parties use only severely limited, federally regulated ‘hard dollar’ donations to fund federal electioneering activities. This includes voter registration drives within 120 days of an election, voter ID and get-out-the-vote programs and any communications that mention federal candidates — with some exceptions.” The story goes on to quote Mr. Bopp: “‘This means that few local political parties do these activities because of the hard-money requirement,’ Bopp told [Louisiana Republican Party Chairman Roger Villere] in an email suggesting that the Louisiana chairman become the plaintiff in the proposed lawsuit. ‘State political parties that are able to set up hard money accounts find it hard to raise this money because of the annual $10,000 contribution limit for hard money.'”

Will the RNC join this anticipated lawsuit? Stay tuned.

Headline: “News media challenges ban on journalism drones” Read More

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FAN 12.2 (First Amendment News) – Justice Altio on the First Amendment

Over at The American Spectator, Matthew Walther (an assistant editor there) has a very informative article titled Sam Alito: A Civil Man – The pleasure of Justice Alito’s Company. It is an overview of the Justice’s career on the Court and before. The article is well flavored with revealing snippets from an interview Mr. Walther did with the Justice. Anyone interested in the Court will want to read this article with its rich mix of the personal and professional side of the Justice.Samuel-Alito-articleInline

I have taken the liberty of excerpting a few passages from the Walther article, passages that concern, naturally, the First Amendment.

______________________

Citizens United & State of the Union 

“When he tells me that he is done making appearances at the State of the Union, I ask him about the last time he attended, in 2010, when he mouthed what looked like the words ‘Not true’ in response to President Obama’s characterization of the Court’s ruling in Citizens United v. Federal Elections Commission. ‘I don’t play poker,’ he says.”

“Either I should take it up so that I learn to have a poker face, or it’s a good thing that I don’t because I’d lose a lot of money. People thought I said something. I assume that they’re correct. I certainly thought it. The president said that Citizens United overruled a century of precedent, which just isn’t true. The chief justice has said that he thought that the president’s criticizing us while we were sitting there was inappropriate. I don’t know that something like that has been done before.”

United States v. Stevens & Snyder v. Phelps

“In Stevens I thought that the real restriction was on conduct, on animal cruelty, rather than on expression,” he says. “There is virtually no way to prosecute the people who are involved in these acts. If you say that you can’t circulate these videos it dries up the market for them.”

Snyder was a tough call,” he says. “Obviously eight of my colleagues disagreed with me.” I ask him what Stevens and Snyder tell us about the limits of the free speech. “The core of the First Amendment is political speech. Any restriction of political speech I think is very dangerous. That is what was involved in Citizens United. This was speech about a candidate for president. What could be more important than that? It’s about the free exchange of ideas concerning public policy, economics, science, art, religion, philosophy, all of those things.”

“Now I can’t speak for my colleagues, but I think I understand the impulse to say that we cannot tolerate any restrictions on freedom of speech because if we allow it even when it’s something like a video of a woman stomping a little animal, then that kind of limitation will begin to restrict the things that need to be covered. But if a court is going to allow restrictions on political speech or intellectual debate or discussion of the arts, our having ruled on these outliers is not going to stop it.”

______________________

There is more, much more, to Matthew Walther’s profile of and interview with Justice Alito, which I recommend to you.

For those interested, earlier accounts of Justice Alito’s views on the First Amendment are offered here, herehere, and here.

Last FAN Column: “First Amendment salon to be launched

Last Scheduled FAN Column: “Red Lion Revisited?

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E-Book on McCutcheon Case Just Published

At the risk of being accused of shameful promotion, I am nonetheless delighted to say that my book with David Skover was released yesterday and is now available as an e-book on Amazon, Barnes & Noble, and Google Play. The book is titled When Money Speaks: The McCutcheon Decision, Campaign Finance Laws, and the First Amendment and was available 36 hours after the Court rendered its ruling in McCutcheon v. FEC. davidskoverThis is the first book to be released in the SCOTUS-Books-in-Brief series.

This is also my fifth book with David (going back to 1996) and the ride has been an incredible one. As a co-author he is all things wonderful and wondrous and none of those books would have been possible but for his incredible talents and work ethic. So, a BIG NOD to my co-author. One more thing: the book is dedicated to Nadine Strossen, “The First Lady of Liberty,” as we tag her. I can think of no one who has been a greater champion of liberty than Nadine. All that said, here is a dollop of yet more of shameless promotion:

Book Description

Top Five Books: Publication Date: April 2, 2014WMS-cover2

80,000 words, e-book: $2.99

“A brilliant discussion of campaign finance in America…a must for all who care about the American political system.” —Erwin Chemerinsky

“Thorough, dispassionate, and immensely readable.” —Floyd Abrams 

“A must read for anyone interested in constitutional law, free speech, or elections. An original and welcome brand of narrative scholarship.”  —Adam Winkler

“Informative. Reliable.  Accessible. This is the best book on the general topic. And a great read, too!” —David M. O’Brien

On April 2, 2014, the U.S. Supreme Court struck down aggregate limits on how much money individuals could contribute to political candidates, parties, and committees. The McCutcheon v. FEC decision fundamentally changes how people (and corporations, thanks to Citizens United) can fund campaigns, opening the floodgates for millions of dollars in new spending, which had been curtailed by campaign finance laws going back to the early 1970s.

WHEN MONEY SPEAKS is the first book to explain and dissect the Supreme Court’s controversial ruling in McCutcheon, including analysis of the tumultuous history of campaign finance law in the U.S. and the new legal and political repercussions likely to be felt from the Court’s decision. The book is cast in narrative form, replete with accounts of the players who made the case what it has become. Also included are photos of the key players — the lawyers, activists, and Shaun McCutcheon, too. The authors also did extensive interviews (up to and including the day of the ruling) with several of the key figures in the case.

McCutcheon has been billed as “the sequel to Citizens United,” the decision giving corporations the same rights as individuals to contribute to political campaigns. Lauded by the right as a victory for free speech, and condemned by the left as handing the keys to our government to the rich and powerful, the Court’s ruling has inflamed a debate that is not going to go away anytime soon, with calls for new laws and even a constitutional amendment on the left—while those on the right (including Justice Clarence Thomas in his concurring opinion) call for an end to all contribution limits. Two of the nation’s top First Amendment scholars—Ronald Collins and David Skover—have produced a highly engaging, incisive account of the case, including exclusive interviews with petitioner Scott McCutcheon and other key players, as well as an eye-opening history of campaign finance law in the U.S.

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Hypothetically Speaking: Justice Breyer’s Dialectical Propensities

220px-StephenBreyerIn July of 1994, Judge Stephen Breyer testified before the Senate Committee on the Judiciary in connection with his nomination to the Supreme Court. In responding to a question posed by Senator Howard Metzenbaum, Judge Breyer could not resist the temptation to respond by way of a hypothetical:

Let’s say—and I will use a hypothetical, I don’t like to use that here, because I know this isn’t a classroom and I know these are serious matters and I don’t like to be professorial, frankly, but I think in this instance, maybe thinking of, say, they turn this wheel around and they charged 8 cents for the electricity, and that might help. They then transmit it across a wire. They then sell it to them- selves, because they are in the retail operation, too. And they sold it, let us say, for 10 cents. So they make it for 8 cents and they sell it to themselves for 10 cents, and the price to the consumer is 10 cents. Now, the plaintiff in this case came along and said, you see, 8 cents is what we have to pay for it, because they sold a little bit to independent retailers, too, and that plaintiff was an independent retailer. And that independent retailer . . . .

In the interest of brevity, I abbreviated my quotation of the Judge’s hypothetical.

As Court watchers well know, the hypothetical (typically long and complicated) is his signature move. What prompted my thoughts on Justice Breyer and his courtroom style were some recent comments (see also here and here) made about Justice Clarence Thomas and his courtroom style. That said, I thought I would share a few examples, albeit shorter ones, of Justice Breyer’s dialectical propensities.

During the course of oral arguments in FCC v. Nextwave Communications, Inc. (2002), a statutory interpretation case, Justice Breyer ventured to make a point by way of a hypothetical:

I learned the second year of law school–and obviously many of my colleagues don’t agree with me, but I learned the second year of law school that when you have a text which says “all,” that there are often implied, not-written exceptions. . . ‘No animals in the park’ doesn’t necessarily apply to a pet oyster . . . . 

Or consider another hypothetical Justice Breyer posed to Professor Randy Barnett, who represented the Respondents in Gonzales v. Raich (2004):

You know, he grows heroin, cocaine, tomatoes that are going to have genomes in them that could, at some point, lead to tomato children that will eventually affect Boston. … So you’re going to get around all those examples by saying what?

Of course, other examples might have been selected (say, Breyer’s hypotheticals in McCutcheon v. FEC), but that is an assignment for a more extended discussion. For now, it is enough to ask: How have Court watchers responded to the Justice Breyer’s style of questioning? Here are a few random samples of what I turned up in response to that question.

A former Harvard Law School professor, Breyer is the most verbose of the justices. He’s unleashed nearly 35,000 words during oral arguments since January, a transcript review shows. Repeatedly, he insists that lawyers imagine scenarios that are parallel to—or perhaps perpendicular to—the facts at hand. . . . When they work, hypothetical questions can reveal a contradiction or expose a fundamental legal principle. Of course, they don’t always work. — Michael Doyle, March 16, 2007

Breyer is the Court’s most frequent practitioner of the hypothetical question, a conjurer of images that are unusual and hyoccasionally bizarre. Mark Sherman, March 2, 2008

During Supreme Court arguments Wednesday in a case involving claims against high-ranking government officials over post-Sept. 11 detention practices, discussion frequently turned to an unusual hypothetical scenario posed by Justice Stephen Breyer: a lawsuit over a mouse found in a bottle of Coca-Cola. Though Chief Justice John Roberts Jr. at one point called the hypothetical “by its nature particularly absurd,” he and the other justices who adopted it seemed to find it quite instructive. Tony Mauro, December 11, 2008

Justice Breyer . . . occasionally runs the hypothetical too far out, and it becomes as complex as the underlying legal concept he is trying to make intelligible. Lyle Denniston, December 7, 2011

Justice Breyer is notorious for asking long-winded hypotheticals in which he can occasionally get lost, and unfortunately these hypotheticals may waste an advocate’s valuable time and may not be pertinent . . . . Ryan Malphurs, 2013

Justice Breyer offered one hypothetical and a view of the legal implications, then conceded he or his law clerk might have it wrong and would have to review the rules again. Bob Bauer, October 9, 2013

Justice Breyer . . . is the Talmudic scholar of hypotheticals. Art Lien, February 25, 2014

Stephen Breyer’s interminable law professor hypotheticals . . . are about drawing attention to themselves rather than helping the Court work through issues. Scott Lemiux, February 26, 2014

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SCOTUS-Books-in-Brief – Goodbye to the Sloooow Past!

Top Five Books has just announced a forthcoming series of e-books on Supreme Court cases. The series is titled “SCOTUS: Books-in-Brief.”  It is designed to provide readers – lay and scholarly alike – with a reliable, informative, and engaging narrative account of a significant Supreme Court ruling shortly after it comes down. Provided in e-book format, each work will be economically priced and accessible on multiple e-platforms.

Each e-book will be available within a week of the decision and will consist of an historical account of the general subject, a full statement of its facts, profiles of the parties, analyses of the lower court judgments, examination of the briefs filed and the oral arguments in the WMS-cover2Supreme Court, a discussion of the larger issues raised by the case, an analysis of the final judgment, and a comprehensive timeline – and all completed and ready for e-publication shortly after a Court ruling is rendered.

The first book in the series (now virtually complete at 75,000 words save for commentary on the forthcoming ruling) is When Money Speaks: The McCutcheon Decision, Campaign Finance Laws, and the First Amendment. (See excerpt here.)

Writers Wanted!

If you are a good writer, have expertise in a certain area pertaining to a case before the Supreme Court, and can complete a 30,000-40,000 word manuscript (depending on the complexity of the case and subject matter) in a relatively short period of time, then contact us – we’d love to hear from you.

For more information about those on the advisory board and the series generally, click here.

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Have Presidents Gotten Better at Picking Ideologically-Compatible Justices?

Do Justices vote independently of all political forces surrounding their appointments? My earlier post discusses how, even in recent decades, Justices’ votes have been surprisingly independent of the ideologies of Senates to which they were nominated. Even so, it may be that presidents fared better than the Senate and recently enhanced their ability to appoint ideologically-compatible Justices.

History is rife with examples of Justices who disappointed their appointing presidents.   As recounted by Henry Abraham, Teddy Roosevelt complained vociferously about Justice Holmes’ ruling in Northern Securities, Truman called Justice Clark his “biggest mistake,” and Eisenhower also referred to Justices Warren and Brennan as “mistakes.”  My earlier study finds frequent grounds for presidential disappointment, based on voting records for eighty-nine Justices over a 172-year period. Just under half of these Justices voted with appointees of the other party most of the time. Still, of the last twelve Justices, only two, Stevens and Souter, aligned most often with appointees of the other party. This low number calls into question whether the frequency of presidential disappointments has diminished recently.

My recent paper identifies change over time using regression analysis and more nuanced measures of presidential ideology. The analysis shows ideologies of appointing presidents did not significantly predict Justices’ votes before the 1970s, but they gained significant predictive power thereafter. This enhanced success coincides with Presidents Nixon’s and Reagan’s efforts to prioritize ideology in appointments to the bench. While earlier presidents did not uniformly ignore nominees’ ideology, they lacked modern technological resources. By the Reagan administration, computerized databases allowed presidential aides to quickly assemble and analyze virtually all of a nominee’s past writings. The improved information may have enabled presidents to better anticipate nominees’ future rulings.

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The Senate’s Influence over Supreme Court Appointments

Thanks, Sarah, for the warm welcome. It is a pleasure to guest blog this month.

With pundits already speculating about President Obama’s next Supreme Court nominee, it seems a good time to discuss relationships between political forces surrounding Supreme Court appointments and Justices’ decisions. Justices sometimes disappoint their appointing presidents, and ideologically-distant Senates are often blamed for presidents’ “mistakes.” For example, David Souter and John Paul Stevens turned out to be far more liberal than the Republican presidents who appointed them (Bush I and Ford, respectively). These presidents both faced very liberal Senates when they selected Souter and Stevens.

Are nominees like Souter and Stevens anomalies or part of a larger pattern of senatorial constraint? My recent article in the Hastings Law Journal offers the first empirical analysis of the Senate’s role in constraining presidents’ choices of Supreme Court nominees over an extended period. It considers ideologies of Senates faced by nominating presidents and measures whether the ideologies of these Senates predict Justices’ voting behavior. The analysis substantially qualifies earlier understandings of senatorial constraint.

Earlier empirical studies consider only limited numbers of recent nominees (see article pp. 1235-39). They suggest that the Senate has constrained presidents’ choices, and many scholars theorize that the Senate has enhanced its role in the appointments process since the 1950s. Analysis of a larger group of nominees shows the Senate’s ideology has had significant predictive power over Justices’ votes in only two isolated historical periods. Senatorial ideology was last significant in the 1970s, shortly after the filibuster of Abe Fortas’s nomination to be Chief Justice, but then it actually lost significance after the Senate rejected Bork in 1987.

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The Varying Use of Legal Scholarship by the U.S. Supreme Court across Issues

While patent law is my core area of scholarly interest, I have also studied the use of legal scholarship by the courts. My co-author Lee Petherbridge from Loyola-LA and I have conducted several comprehensive empirical studies using large datasets on the issue. More precisely, we have analyzed how often federal courts cite to law review articles in their decisions. We have empirically analyzed the issue from a variety of angles. We have studied the use of legal scholarship by the U.S. Supreme Court (available here), by the regional U.S. Courts of Appeals (study available here), and by the Federal Circuit (available here). I won’t recount the finding of those studies here. Instead, I will report some new information and ask readers for potential explanations of the data.

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