FedSoc Blog

Today, people read almost daily reports about the "broken patent system" in newspaper articles, blogs and at social media websites. Is this true? On the one hand, the high-tech and biotech industries seem awash in patent litigation, and Congress, the FTC, and the Supreme Court are considering adopting a variety of reform measures. On the other hand, the availability of patents and the property rights they secure are driving  technological innovations once imagined only as science fiction - tablet computers, smart phones, genetically modified seeds, genetic testing for cancer, personalized medical treatments for debilitating diseases, and many others - and these technological marvels are now a commonplace feature of our lives.

A panel of distinguished jurists will discuss these two conflicting perspectives on whether the patent system today promotes or hampers innovation: Arthur Gajarsa, former Judge on the Court of Appeals for the Federal Circuit, Paul Michel, former Chief Judge of the Court of Appeals for the Federal Circuit, and Richard Posner, Judge of the Court of Appeals for the Seventh Circuit. The panel will be moderated by Douglas Ginsburg, former Chief Judge of the Court of Appeals for the D.C. Circuit and a Professor of Law at George Mason University School of Law.

The panelists have combined many years of experience in adjudicating patent cases, writing and speaking on patent or IP policy, and engaging with legal and policy issues closely connected with the patent system, such as antitrust and law and economics. With wide-ranging views on the current health of the patent system and the relevant solutions, the panel discussion will be insightful and illuminating. The event is co-sponsored by the Center for the Protection of Intellectual Property at George Mason University School of Law and the Federalist Society's Intellectual Property Practice Group.

Featuring:

• Hon. Arthur J. Gajarsa, former Judge, U.S. Court of Appeals, Federal Circuit
• Hon. Paul R. Michel, former Chief Judge, U.S. Court of Appeals, Federal Circuit
• Hon. Richard A. Posner, Judge, U.S. Court of Appeals, Seventh Circuit
• Hon. Douglas H. Ginsburg, Senior Circuit Judge, U.S. Court of Appeals, D.C. Circuit and Professor of Law, George Mason University School of Law - Moderator

Event details:

Start : Tuesday, May 14, 2013 12:00 PM

End   : Tuesday, May 14, 2013 2:00 PM

Location: National Press Club, 529 14th St. NW, Washington, DC

This event will be webcast live. 

Registration details:  Registration for this event is now closed. There is no cost to attent this event. Lunch will be included.  Please dial 202-822-8138 with any questions.

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 the AP:

One of the most liberal members of the U.S. Supreme Court, Justice Ruth Bader Ginsburg could be expected to give a rousing defense of Roe v. Wade in reflecting on the landmark vote 40 years after it established a nationwide right to abortion.

Instead, Ginsburg told an audience Saturday at the University of Chicago Law School that while she supports a woman's right to choose, she feels the ruling by her predecessors on the court was too sweeping and gave abortion opponents a symbol to target. Ever since, she said, the momentum has been on the other side, with anger over Roe fueling a state-by-state campaign that has placed more restrictions on abortion.

"That was my concern, that the court had given opponents of access to abortion a target to aim at relentlessly," she told a crowd of students. "... My criticism of Roe is that it seemed to have stopped the momentum that was on the side of change."

The ruling is also a disappointment to a degree, Ginsburg said, because it was not argued in weighty terms of advancing women's rights. Rather, the Roe opinion, written by Justice Harry Blackmun, centered on the right to privacy and asserted that it extended to a woman's decision on whether to end a pregnancy.

Four decades later, abortion is one of the most polarizing issues in American life, and anti-abortion activists have pushed legislation at the state level in an effort to scale back the 1973 decision.

Ginsburg would have rather seen the justices make a narrower decision that struck down only the Texas law that brought the matter before the court. That law allowed abortions only to save a mother's life.

A more restrained judgment would have sent a message while allowing momentum to build at a time when a number of states were expanding abortion rights, she said. She added that it might also have denied opponents the argument that abortion rights resulted from an undemocratic process in the decision by "unelected old men."

Ginsburg told the students she prefers what she termed "judicial restraint" and argued that such an approach can be more effective than expansive, aggressive decisions.

"The court can put its stamp of approval on the side of change and let that change develop in the political process," she said. . . .

Asked about the continuing challenges to abortion rights, Ginsburg said that in her view Roe's legacy will ultimately hold up.

"It's not going to matter that much," she said. "Take the worst-case scenario ... suppose the decision were overruled; you would have a number of states that will never go back to the way it was."

The Boston Globe ran a lengthy article that begins:

Imagine you sto by a Starbucks one morning, and the shop is robbed only minutes after you leave. Witnesses say the perpetrator was drinking coffee, so investigators retrieve dozens of cups from the trash, looking for genetic evidence. When they analyze it, they may find the robber’s DNA, but they’re going to find many other people’s as well—including yours.

What can they do with that information?

Instinctively, it feels like the answer should be “nothing”—that the DNA is yours, and anyone who uses it without your permission has crossed a line. Those molecules contain data about your heritage, your appearance, your predisposition to disease—all kinds of secrets you had no intention to release to the world when you threw your cup away.

But the legal reality is something quite different: Your DNA has just entered a gray area.

“In general the idea is anything you intentionally relinquish to the public, to scavengers, in the garbage, is free for anyone,” said Elizabeth Joh, professor of law at the University of California Davis. This is true for your hard drive, your diary, your credit card statements—and it’s true for your DNA, regardless of whether you realize you’re casting it aside.

Legal scholars call this material “abandoned DNA,” and Joh is one of a handful of thinkers saying it’s time the law reckoned with what rights we have to this trove of extremely personal information. Detritus containing DNA was effectively useless to most people two decades ago. But today it is becoming faster and cheaper to sequence fragments of DNA—revealing the unique genetic material that begins to make us who we are—and the law has yet to catch up. State laws are a patchwork of regulations, and most jurisdictions, including Massachusetts, are mum about the privacy status of the DNA we leave behind us every day.

Legal scholars argue that the free-for-all status of abandoned DNA poses an immediate threat to our privacy, not just because of problems that might arise down the line, but because of abuses that are already possible. The problem is hard to solve because abandoned DNA doesn’t fit neatly into any of our existing legal categories: We have a strong expectation of privacy about our medical records, and state and federal laws increasingly protect genetic information; by contrast, simple property left behind belongs to anyone who picks it up. The DNA we leave behind is neither and both: It is garbage that also contains vital information. And right now, as far as the law is concerned, it is essentially fair game.

***

To the extent that the legal system is grappling with abandoned DNA, it’s chiefly in the criminal realm. Police are making more active use of DNA all the time, collecting and storing the information it contains, and a vigorous debate is underway about the privacy rights we have over our DNA in the context of an investigation. Later this spring the Supreme Court will decide, in the case Maryland v. King, whether the police can force a suspect to give a DNA sample when he or she has merely been arrested—but not yet convicted—for a crime.

“Abandoned DNA” comes into play when the police don’t have a DNA sample, and can’t force a suspect to give one up. In Washington in 2003, police posed as a fictitious law firm and sent a letter with a return envelope to a murder suspect named John Nicholas Athan, inviting him to participate in a fake class-action lawsuit. He replied, and police lifted DNA from Athan’s saliva on the seal of the envelope and used it to convict him of the killing. The Washington State Supreme Court reviewed the technique and ruled it permissible, explaining that as soon as a letter goes in the mail, “The envelope, and any saliva contained on it, becomes the property of the recipient.”

What might at first seem like clever police work strikes Joh as a very slippery slope. In treating DNA the same way we treat the envelope it came on, she suggests, we miss some important differences. First, DNA is uniquely hard to hang onto: It’s in stray hairs and on chewing gum, and we constantly give it away without choosing to. “What can a person do to so stop shedding DNA?” she asks. Second, there is a meaningful difference between physical objects that contain DNA and the information encoded on them. The former is just spit on the sidewalk; the latter reveals facts about us that we may not even want to know ourselves, and we’d like to think that the law can also make that distinction.

That might sound very subjective—that the difference between a molecule of gum and a molecule of DNA is how we feel about it—but privacy law does sometimes hinge on just that. In a landmark 1967 decision, the Supreme Court expanded Fourth Amendment rights, which prohibit illegal searches and seizures, to include what Justice John Harlan called the “reasonable expectation of privacy”—which, to genetic-privacy advocates, clearly applies to DNA. . . .

The Associated Press reports:

The Internal Revenue Service inappropriately flagged conservative political groups for additional reviews during the 2012 election to see if they were violating their tax-exempt status, a top IRS official said Friday.

Organizations were singled out because they included the words "tea party" or "patriot" in their applications for tax-exempt status, said Lois Lerner, who heads the IRS division that oversees tax-exempt groups.

In some cases, groups were asked for their list of donors, which violates IRS policy in most cases, she said.

"That was wrong. That was absolutely incorrect, it was insensitive and it was inappropriate. That's not how we go about selecting cases for further review," Lerner said at a conference sponsored by the American Bar Association.

"The IRS would like to apologize for that," she added.

Lerner said the practice was initiated by low-level workers in Cincinnati and was not motivated by political bias. After her talk, she told The AP that no high level IRS officials knew about the practice.

Agency officials found out about the practice last year and moved to correct it, the IRS said in a statement. The statement did not specify when officials found out.

About 75 groups were inappropriately targeted. None had their tax-exempt status revoked, Lerner said.

Senate Republican Leader Mitch McConnell of Kentucky called on the White House to investigate.

"Today's acknowledgement by the Obama administration that the IRS did in fact target conservative groups in the heat of last year's national election is not enough," McConnell said. "I call on the White House to conduct a transparent, government-wide review aimed at assuring the American people that these thuggish practices are not under way at the IRS or elsewhere in the administration against anyone, regardless of their political views."

Many conservative groups complained during the election that they were being harassed by the IRS. They accused the agency of frustrating their attempts to become tax exempt by sending them lengthy, intrusive questionnaires.

The forms, which the groups made available at the time, sought information about group members' political activities, including details of their postings on social networking websites and about family members.

Certain tax-exempt charitable groups can conduct political activities but it cannot be their primary activity.

IRS Commissioner Douglas Shulman told Congress in March 2012 that the IRS was not targeting groups based on their political views.

"There's absolutely no targeting. This is the kind of back and forth that happens to people" who apply for tax-exempt status, Shulman told a House Ways and Means subcommittee.

Shulman was appointed by President George W. Bush. His 6-year term ended in November. President Barack Obama has yet to nominate a successor. The agency is now being run by acting Commissioner Steven Miller.

"The Ways and Means Committee has persistently pushed the IRS to explain why it appeared to be unfairly targeting some political groups over others – a charge they repeatedly denied," said Rep. Charles Boustany, R-La., chairman of the Ways and Means oversight subcommittee.

"The IRS's `too little too late' response is unacceptable, and I will continue to work to ensure there are protections in place so no American, regardless of political affiliation, has their right to free speech threatened by the IRS," Boustany said.

Tea Party groups were livid on Friday.

"I don't think there's any question we were unfairly targeted," said Tom Zawistowski, who until recently was president of the Ohio Liberty Coalition, an alliance of tea party groups in the state.

Zawistowski's group was among many conservative organizations that battled the IRS over what they saw as its discriminatory treatment of their effort to gain non-profit status. The group first applied for non-profit status in June 2009, and it was finally granted on Dec. 7, 2012, he said – one month after Election Day.

During the 2012 election, many tea party groups applied for tax-exempt status under section 501 (c) (4) of the federal tax code, which grants tax-exempt status to social welfare groups. Unlike other charitable groups, these organizations are allowed to participate in political activities but their primary activity must be social welfare.

That determination is up to the IRS.

Lerner said the number of groups filing for this tax-exempt status more than doubled from 2010 to 2012, to more than 3,400. To handle the influx, the IRS centralized its review of these applications in an office in Cincinnati.

Lerner said this was done to develop expertise among staffers and consistency in their reviews. As part of the review, staffers look for signs that groups are participating in political activity. If so, IRS agents take a closer look to make sure that politics isn't the group's primary activity, Lerner said.

As part of this process, agents in Cincinnati came up with a list of things to look for in an application. As part of the list, they included the words, "tea party" and "patriot," Lerner said.

"It's the line people that did it without talking to managers," Lerner. "They're IRS workers, they're revenue agents."

In all, about 300 groups were singled out for additional review, Lerner said. Of those, about a quarter were singled out because they had "tea party" or "patriot" somewhere in their applications.

The IRS statement said that once applications were chosen for review, they all "received the same, even-handed treatment."

Lerner said 150 of the cases have been closed and no group had its tax-exempt status revoked, though some withdrew their applications.

"Mistakes were made initially, but they were in no way due to any political or partisan rationale," the IRS said in a statement. "We fixed the situation last year and have made significant progress in moving the centralized cases through our system."

Marcus S. Owens, who spent a decade leading the IRS division that oversees tax-exempt organizations, said Friday that it made sense that the problem arose among workers in Cincinnati because the agency "really has delegated a lot of authority" to local offices to make decisions about handling their workload.

But Tea Party groups weren't buying the idea that the decision to target them was solely the responsibility of low-level IRS workers.

"It is suspicious that the activity of these `low-level workers' was unknown to IRS leadership at the time it occurred," said Jenny Beth Martin, national coordinator for Tea Party Patriots, which describes itself as the nation's largest tea party organization. "President Obama must also apologize for his administration ignoring repeated complaints by these broad grassroots organizations of harassment by the IRS in 2012, and make concrete and transparent steps today to ensure this never happens again."

The Daily Caller reports:

Famed Harvard Law School professor Alan Dershowitz ranks Sen. Ted Cruz among the school’s smartest students, adding that the Canada-born Texan can run for president in 2016.

Cruz was a “terrific student,” Dershowitz told The Daily Caller. “He was always very active in class, presenting a libertarian point of view. He didn’t strike me as a social conservative, more of a libertarian.”

“He had brilliant insights and he was clearly among the top students, as revealed by his class responses,” Dershowitz added.

Dershowitz also gave a high estimate of Massachusetts Democratic Sen. Elizabeth Warren — who has decidedly different political views than Cruz.

Dershowitz says he and Cruz would often debate issues presented in Dershowitz’s criminal law class. “Cruz’s views were always thoughtful and his responses were interesting,” the law professor explained. “I obviously disagreed with them and we had good arguments in class. I would challenge him and he would come up with very good responses.”

Cruz’s “career has not surprised me. I thought he would go on to accomplish important things.”

“His movement toward social conservatism has surprised me a little bit,” Dershowitz added, but “people will change and perhaps when you are at Harvard Law School you are less likely to espouse a socially conservative point of view.”

Cruz “was an outstanding student in my class,” Dershowitz said. “Without a doubt he is among the smartest students I’ve ever had… I’ve had great students but he has to be at the top of anyone’s short list, in terms of raw brain power.”

Dershowitz places Cruz alongside Warren among the Senate’s smartest members.

“Their election raised the IQ level of the Senate discernibly. The two of them have to be among the smartest senators now,” Dershowitz said.

Dershowitz and Cruz stayed in touch when Cruz was a law clerk for Justice William Rehnquist and then Texas solicitor general. Dershowitz called Cruz and wished him well when he ran for U.S. Senate.

Does Dershowitz think Cruz should run for president?

“The question is whether he can,” Dershowitz said. “I think he can. I think he’s a natural-born citizen and therefore he’s eligible to run. There will be challenges, perhaps, to his eligibility.”

But Dershowitz doesn’t think that his old student would win the 2016 GOP nomination.

“I don’t think he’ll get the nomination when you think about Rubio and posturing himself a little more to the center on immigration,” Dershowitz said. “Cruz won’t run in 2016 and that he’ll wait. Just a prediction. He would probably establish himself first before he ran.” . . .

Senator Cruz delivered the keynote address at FedSoc's 2013 Annual Student Symposium.  To read a summary of his remarks, click here.

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. . . .

Education Week reports:

A federal appeals court on Thursday reinstated a Michigan law that bars school districts from deducting teachers' union dues for their employees.

A panel of the U.S. Court of Appeals for the 6th Circuit, in Cincinnati, ruled 2-1 that the state's Act 53, a 2012 measure that by its own terms was meant as "a check on union power," likely does not violate the free speech or equal protection rights of teachers' unions. The court threw out a lower court's injunction that had kept the law from taking effect.

The case accepts as a given that public-employee unions benefit from having agencies such as cities or school districts collect union dues and fees from their workers and pass them along to the unions. When the unions have to collect such dues on their own, there are added transaction costs as well as less of a yield than when the dues are withheld from government paychecks.

The National Education Association and its Michigan affiliate argued in their challenge to Act 53 that by barring only school employers (as opposed to cities, counties, or other agencies) from withholding dues for union-affiliated employees, the state was practicing a form of viewpoint discrimination that infringed the free speech rights of the teachers' unions.

The 6th Circuit majority rejected the arguments.

"Public Act 53 does not restrict speech; it does not discriminate against or even mention viewpoint; and it has nothing to do with a forum of any kind," Judge Raymond M. Kethledge wrote for the majority in the May 9 decision in Bailey v. Callaghan. "Instead, the act merely directs one kind of public employer to use its resources for its core mission rather than for the collection of union dues. That is not a First Amendment concern."

The majority said a 2009 decision by the U.S. Supreme Court in Ysursa v. Pocatello Education Association foreclosed one of the NEA's key arguments because that ruling said the First Amendment "does not confer an affirmative right to use government payroll mechanisms for the purpose of obtaining funds for expression."

But in a lengthy dissent, Judge Jane Branstetter Stranch said the Supreme Court's Ysursa decision involved an Idaho restriction on public-payroll checkoffs for union political activities, not for general dues. And the Idaho restriction at issue covered all public-employee unions, "not just a disfavored few," Stranch said.

She said Act 53 "impermissibly discriminates against school unions because Michigan disagrees with the positions they advocate." . . .

Nicholas Rosenkranz, professor at Georgetown Law School, comments at the Volokh Conspiracy:

The Harvard Crimson is currently running “a three-part series on gender disparity issues at [Harvard] Law School.” Part I reports that there are 17 tenured or tenure-track women out of 92 total on the Harvard Law School faculty. It goes on to report:

Since she took the helm of the school four years ago, [Dean] Minow has worked to change these numbers. Her first step: hiring equal numbers of men and women for entry-level faculty positions since 2009. This year, the Law School has made two hiring offers, one to a man and one to a woman.

Annually, the entry-level hiring committee conducts about 40 interviews, which are balanced in terms of gender breakdown. From these initial interviews, the hiring committee whittles down the pool of potential candidates, who must present to a faculty workshop, secure the recommendation of the hiring committee, and finally secure the approval of the faculty as a whole before they are hired. All the while, the hiring committee is careful to retain an equal number of male and female candidates, according to Law School professor David J. Barron ’89, chair of the entry-level committee.

The goal of having more female faculty members is “very much part of the consciousness, and consciousness matters,” said Barron.

At least as described, this sounds rather like a strict 50/50 gender quota, doesn’t it?

Reading this article, I couldn’t help but recall the recent conference on intellectual diversity at Harvard Law School. Readers may recall that Dean Minow issued an eloquent endorsement of intellectual diversity in conjunction with that conference:

“He who knows only his own side of the case, knows little of that.” John Stuart Mill’s insight carries importance for any place of learning and special significance for a law school. For one cannot truly understand a legal argument on behalf of one client or side without thoroughly understanding and addressing competing arguments and objections. Even if there were no other reasons available, this would supply sufficient basis for a robust commitment to intellectual diversity among the faculty and students, courses and journals, activities and speakers at Harvard Law School.

But there are other powerful reasons to pursue and nurture intellectual diversity at Harvard Law School. We recruit extraordinary students and work hard to equip them to pursue great careers and great dreams. Both in honing their aspirations and equipping them to achieve them, nothing works as well as serious intellectual encounters with smart and motivated individuals with varied viewpoints. Faculty and students also advance knowledge and law reform through scholarship and public service. Here, too, debates within and across groups deepen scholarship and test law reform ideas. It would be wonderful if one did not have to leave Harvard Law School to discover objections and improvements to descriptions and revisions of financial institution behavior, consumer products safety, national security strategies, federalism, and constitutional adjudication, just to name a few current subjects of research and reform work, but it will suffice if being at Harvard Law School affords faculty and students with super preparation for any ideas and concerns that may be encountered elsewhere. This is the path of truth-seeking; this is the method of iterative improvement. Yet there is at least one more crucial reason for placing priority in intellectual diversity within this institution. The bet made by commitments to the rule of law and to democracy is that we can use reason and participatory institutions to govern diverse and often contentious individuals and groups. That bet cannot prevail without cultivation of leaders who set the example for civil and curious engagement across all kinds of divides—be they defined by race, region, class, language, political party, gender, ideology, or other signifiers of difference. Modeling and cultivating honest and engaged discussion across lines of difference is not only our best practice. It is our commitment to make good on the privileges that the Harvard Law School enjoys, reflects, and bestows.

John Stuart Mill also wrote, “In all intellectual debates, both sides tend to be correct in what they affirm, and wrong in what they deny.” I am not sure he is right, but I think we will make more progress testing this and many other propositions in the company of talented people who draw sustenance from varied and clashing intellectual resources. We may even find surprising points of agreement and convergence, but we would not even know of this wonderful possibility in the absence of intellectual diversity.

In light of Dean Minow’s statement, I wonder whether the goal of having more conservative/libertarian faculty members is now also “very much part of the consciousness” at Harvard. (For what it’s worth, women are far better represented than conservatives/libertarians on almost all top law faculties, including Harvard’s.) Will Harvard Law School also be adopting a strict 50/50 quota for intellectual diversity? Is this sort of quota appropriate for gender? If so, would it not also be appropriate for ideology?

Talking Points Memo reports:

New York City could soon become the first major city in the country to give non-citizens the right to vote. The proposal, which would allow certain non-citizens to vote in local elections, appears to have a veto-proof majority in the New York City Council — enough to overcome opposition by Mayor Michael Bloomberg. As hearings on the proposal get underway Thursday, supporters are optimistic it will become law by the end of the year and believe it will have an impact beyond the five boroughs.

“It’s going to be huge and just imagine the implications that are involved here,” Councilman Daniel Dromm, one of the co-sponsors of the legislation along with Councilwoman Gale Brewer, told TPM Wednesday.

Currently, citizenship is a requirement for voters throughout New York state. This legislation, “Voting By Non-Citizen Residents,” would allow immigrants who are “lawfully present in the United States” and have lived in New York for “six months or longer” on the date of a given election to vote provided they meet all the other current requirements for voter registration in New York State. This means they must “not be in prison or on parole for a felony conviction” and “not be declared mentally incompetent by a court.” For their first time voting, they must also provide identification including; “copy of a valid photo ID, current utility bill, bank statement, paycheck, government check, or some other government document that shows your name or address.” Identification requirements would not remain after their initial vote. The bill only affects local races and calls for the registration forms provided to these “municipal voters” to specify that they “are not qualified to vote in state or federal elections.”

“This is extremely important, because it’s based on the founding principle of this country and that was, ‘No Taxation Without Representation.’ All of the people who would be included in this and would be allowed to vote are paying taxes, they’ve contributed to society,” Dromm said.

If the City Council passes the proposal, New York would be, by far, the largest city in the nation that allows non-citizens to vote. Non-citizen voting currently exists in multiple smaller municipalities in Maryland and Massachusetts. The locations that have passed immigrant voting in Massachusetts have been unable to implement it because they need state approval. According to Ron Hayduk, an author, professor at Queens College, and co-founder of the New York Coalition To Expand Voting Rights, who was part of the team that helped advise on the creation of the bill, contends that, as a charter city, New York would not need approval from the state. However, Hayduk acknowledged there is some dispute on that issue, which he said will be debated at a joint hearing conducted Thursday by the Council’s committees on immigration and governmental operations.

“There’s legal experts that are going to be testifying … that are going to make the case that New York City has the authority to enact this on its own and it will not come into conflict with any state law,” said Hayduk. “There may be others that dispute that and, if that’s the case, it may end up in the courts.”

One person who doesn’t believe the bill is acceptable under state law is New York City Mayor Michael Bloomberg, who has been a prominent advocate for other types of immigration reform in the past.

“The Mayor believes voting is the most important right we are granted as citizens and you should have to go through the process of becoming a citizen and declaring allegiance to this country before being given that right. That being said, this bill violates the State constitution and the Administration does not support it,” Evelyn Erskine, a spokeswoman for the mayor said.

However, Bloomberg’s opposition may not be enough to block the “Voting By Non-Citizen Residents” bill. It currently has the support of 34 of the Council’s 51 members, exactly the amount needed to override a veto by the mayor. Dromm first introduced the legislation in 2010 with the support of just eight council members.

There is one other person who could potentially block the bill despite its support: mayoral candidate and City Council Speaker Christine Quinn. After Thursday’s hearing, the bill would next need to be scheduled for a vote in committee. If is passes that vote, it would need to go to the council floor for a vote. As speaker, Ms. Quinn decides when bills come to the floor, effectively giving her power to stall legislation indefinitely. However, Dromm is bullish about the bill’s prospects.

“I’m optimistic both with the committee and on the floor and I would hope that we could pass this by the end of the year,” he said.

Jamie McShane, a spokesman for Quinn, said he doesn’t think she is expected to be at Thursday’s hearing, but is “looking forward to reviewing testimony after the hearing happens.”

For his part, Councilman Ydanis Rodriguez said he supports the bill both as the representative of a district with a large immigrant population and as someone who was an immigrant himself. Rodriguez said he came to America from the Dominican Republic in 1983 and gained citizenship in 2000.

“In those years, from the 80’s through the 90’s, I was doing exactly the same thing as someone who’s a U.S. citizen. … I was working hard, I was paying taxes, I went to school, I graduated, I became a teacher in 1993 when I got my green card,” explained Rodriguez. “I believe that we have a great opportunity to make New York City the first large city in the nation that would allow residents with green cards to vote in local elections.”

Dromm also argued the bill would improve civic engagement and force politicians to listen to the concerns of immigrant communities.

“For disenfranchised communities, people who have not been allowed to participate, who have not become civically engaged, this would be a huge move in the right direction,” Dromm said. “Having the ability to participate in elections would create a lot more civic engagement and, on a political level, I don’t think communities like the community that I represent, which is 68 percent immigrant, would ever be able to be ignored again by anybody running for major citywide office in New York City.”

New York is currently preparing for a mayoral election in November, but Dromm said he doesn’t “anticipate it being in effect” by then.

“I’m going to be honest with you, there are some issues that we need to work out in terms of its implementation with the Board of Elections and stuff,” said Dromm.

Along with the local implications, Hayduk said the passage of the bill would have a national impact — both in other cities that are considering proposals for immigrant voting and in the wider immigration reform debate.

“It would send a big message to the rest of the country and embolden campaigns which are ongoing in other places like San Francisco, and Portland, Maine, and Washington, D.C., and other places,” said Hayduk. “It would certainly be viewed favorably by immigrants’ rights advocates and be seen by other policy makers as another level of discussion about the whole business of the role of immigrants in the United States.”

The National Law Journal reports:

A federal appeals court in Washington on Tuesday struck down a rule requiring companies to post a notice advising employees of their rights under federal labor law, including the right to form or join a union. 

The rule, which the National Labor Relations Board published in August 2011, would have required nearly 6 million employers, many of them small businesses, to conspicuously display the employee-rights poster, a three-judge panel of the U.S. Court of Appeals for the D.C. Circuit said on May 7.

Writing for the appeals court, Senior Judge A. Raymond Randolph said the poster rule made an employer's failure to post the notice an unfair labor practice. However, federal law protects "the right of employers (and unions) not to speak," he continued.

"This is why, for example, a company official giving a noncoercive speech to employees describing the disadvantages of unionization does not commit an unfair labor practice if, in his speech, the official neglects to mention the advantages of having a union," Randolph said.

Judges Janice Rogers Brown and Karen LeCraft Henderson agreed with the disposition of the case. Writing separately, however, Henderson said she also would have found the board lacked authority to promulgate the posting rule under a different provision of the National Labor Relations Act.

Lawyers for the NLRB argued, among other things, that content of the poster reflected the board's speech, not the employer's. The board's attorneys said the poster's message was not ideological. Enforcement of the rule was on hold pending the outcome of the appeal.

Linda Dreeben, deputy associate general counsel at the NLRB, could not be reached for comment. Neither could Dawn Goldstein, who argued the case in the appeals court.

Littler Mendelson partner Maurice Baskin in Washington, who practices in national labor policy, argued in the D.C. Circuit in September for the challengers, including the National Association of Manufacturers.

"The D.C. Circuit decision was a victory for the rule of law and for some six million employers around the country," Baskin said in an email. "The grounds adopted by the court and by the concurrence are compelling and we hope will foreclose further appeals by the board. "

Jay Timmons, president of the National Association of Manufacturers, said in a prepared statement that "stopping the NLRB's burdensome agenda of placing itself into manufacturers' day-to-day business operations is essential to preventing further government-inflicted damage to employee relations in the United States."

A federal trial judge in South Carolina in April 2012 also concluded the NLRB lacked authority to promulgate the posting rule.

The government is challenging that decision in a case pending before the U.S. Court of Appeals for the Fourth Circuit. The appeals court heard the case in March. 

According to Bloomberg News:

Google asked an appeals court to deny class status to a group of authors who claim in a $3 billion lawsuit that the company’s project to digitally copy millions of books from libraries violates their copyrights.

Lawyers for Google and three writers, including Jim Bouton, the author of “Ball Four,” argued their case today before a three-judge panel of the U.S. Court of Appeals in Manhattan. Google is seeking to overturn a lower-court order that let the authors proceed as a class on behalf of other writers.

“Plaintiffs cannot claim to represent the many class members who benefit from and approve of Google Books,” Seth Waxman, a lawyer for Mountain View, California-based Google, told the judges, who said they would issue a ruling later.

The Authors Guild, which represents writers, and individual authors sued in 2005, alleging that Google, owner of the world’s most popular search engine, was making digital copies of books from libraries without seeking permission from copyright owners or paying fees.

Judge Denny Chin rejected a negotiated settlement by the parties in 2011. Attempts to renegotiate the deal failed, and the litigation resumed. Chin granted class certification last year to all authors residing in the U.S. who have at least one book in Google’s project.

Class certification makes it possible for all those who meet specified criteria to sue together rather than separately, increasing the chances of a settlement.

“Let’s get it adjudicated on a class basis, not piecemeal, book-by-book,” Robert LaRocca, a lawyer for the authors, told the judges.

Google said in court papers that it has scanned more than 20 million books worldwide and that Internet searchers would be able to view “snippets” of each book online. Its defense relies on the fair-use provision of copyright law, which allows the use of copyrighted materials without permission for educational, research and news purposes.

U.S. Circuit Judge Pierre Leval suggested that defense might be worth adjudicating first.

“The big question is: Is Google going to succeed with its fair-use defense?” he said to the company’s lawyer. “The class-action question raises interesting and challenging points, but I wonder if you’re out of sequence.”

Leval said the appeals court might send the case back to the district court to consider the fair-use argument and the parties could return later to the appeals court on the class-action matter.

“I don’t want to litigate fair-use issues with one hand tied behind my back,” Waxman replied.

Last July, the parties filed motions for judgment without a trial. Chin halted action on the case in district court until the appeals court rules.

The authors are seeking statutory damages of $750 for each book. Court papers state that more than 4 million English-language books have been digitally copied. That would mean damages of at least $3 billion, a figure named by Waxman in court today.

Lyle Denniston writes at SCOTUSblog:

The Republican National Committee on Tuesday mounted a fervent new effort to get the Supreme Court to give those who contribute money to political campaigns as much freedom as those who spend money independently to promote candidates and causes.  In a sixty-page brief in a case that the Court is to decide at its next Term, the GOP’s national organization argued that the time has come to give donors wider First Amendment freedom to make contributions to parties and candidates.

For the past thirty-seven years, the Court has held fast to the idea that limits on political spending put a heavier burden on political expression than limits on contributions do, and so the government has more power to regulate contributions than spending.   The differing approach originated in the Court’s 1976 decision in Buckley v. Valeo, and it has withstood repeated attacks by advocates for donors and even by strong criticism by some Justices themselves — including current Justices Anthony M. Kennedy, Antonin Scalia, and Clarence Thomas.

The RNC is seeking to use the new case of McCutcheon v. Federal Election Commission (docket 12-536) as a test of that distinction, arguing that changes in the law and more recent Supreme Court decisions have undermined the rationale for tougher restraints on donations.

The individual donor also involved in the case, Alabaman Shaun McCutcheon, filed a separate brief; it can be read here.  That brief, however, confines to a footnote its challenge to “Buckley‘s unsustainable dichotomy between contributions and expenditures.” Even so, the footnote did argue that the Court should not hesitate to overrule that distinction, since it is based on the Constitution and thus cannot be overturned by new legislation.

Both the RNC and McCutcheon urged the Court to use the most rigorous constitutional test — “strict scrutiny” — to judge limitations on campaign contributions.  The Court has used various phrases in judging such restrictions, but has never embraced the toughest test.   The RNC devoted considerably greater attention to that issue than did McCutcheon.

This case does not involve any challenge to what are called the “base limits” on campaign contributions.  Those are the annual limits on what a donor can give to a candidate directly, to a campaign committee, a party, or a party committee.  The challenges, rather, are to what are called “aggregate limits” — the total amount that a donor can give to all political recipients during a two-year election cycle.   Both the RNC and McCutcheon contended that these overall limits impose a heavier burden on campaign expression than do the base limits, and cannot be justified by any argument that giving to more recipients risks corruption in campaign financing.

Although the Buckley decision did uphold an “aggregate limit” — an overall ceiling during an election cycle — of $25,000, both the
RNC and McCutcheon argued that the Court did so in order to prevent donors from evading the base limits then in effect on contributions.   But Congress has changed the law, and blocked off avenues for such evasions, the two briefs argued.

The RNC challenge targets the two-year limit now in effect of $74,600 on donations that it can receive as a political committee that is not an immediate part of a candidate’s campaign organization.   The McCutcheon challenge is aimed at the same $74,600 two-year ceiling on contributions to non-candidate committees, and also at the $48,600 two-year ceiling on donations to candidate organizations.  While he is willing to abide by the base limits on his contributions to any entity, he wants to give more in the aggregate than the two-year ceilings allow.

Those are the ceilings that will be in effect during the 2013-2014 cycle. . . .

According to Greenwire:

Federal judges wrestled today with whether U.S. EPA ran afoul of the law in directing states to implement regulations to address climate change.

At issue before a three-judge panel of the U.S. Court of Appeals for the District of Columbia Circuit are two cases that challenge EPA's interactions with states after the agency finalized landmark greenhouse gas rules in 2010.

EPA had sought to make sure states that had Clean Air Act permitting authority for new major facilities were able to adequately take into account greenhouse gas emissions.

In December of that year, EPA called for those states to submit state implementation plans, or SIPs, for review, a process referred to as a SIP Call. It gave those states a short deadline to comply.

Texas, Wyoming and industry groups such as the National Mining Association and Utility Air Regulatory Group said EPA should have given states more time. David Rivkin, representing Texas, told the judges that EPA sought to coerce states into adopting the agency's policy.

EPA was "putting a gun to the head of the states," Rivkin said.

The cases are the latest challenge from Texas and industry to EPA's climate program. Last June, the D.C. Circuit upheld four rules at the heart of EPA's greenhouse gas efforts (Greenwire, June 26, 2012).

For most states with permitting authority, EPA signed off on greenhouse gas revisions to their prevention of significant deterioration, or PSD, permitting programs and let them move forward.

Texas, however, refused to submit a revised plan, contending that it was inappropriate to regulate greenhouse gas emissions. Instead, it pursued several lawsuits against the agency.

The Lone Star State contends that EPA -- acting outside its Clean Air Act authority -- threatened a ban on new construction. Rivkin also charged that EPA's action amounted to an incursion on Texas' constitutional rights as a sovereign state.

But Judges David Tatel and Judith Rogers, both appointed by President Clinton, took issue with Rivkin's arguments. Tatel noted that the court upheld EPA's greenhouse gas standards last June. Based on that precedent, he said, EPA appeared to be reading the construction-ban provision accurately in that it is self-executing -- meaning not left to EPA's discretion.

Precedent, Tatel said, has "this court saying the law is clear and unequivocal."

"Where is the ambiguity?" he asked.

Tatel also focused many of his questions on whether Texas and Wyoming had standing to bring the case -- that is, whether they were actually harmed by EPA's actions. EPA's regulations -- especially the tailoring rule, which gradually phased in greenhouse gas standards -- reduced the burden on states and industry for compliance.

At one point in arguments that lasted twice their allotted time, Henry Nickel, representing the Utility Air Regulatory Group, acknowledged that if the court finds EPA's reading of the statute is accurate, "then I would agree we don't have a case."

Rogers added that EPA was forced to act because Texas explicitly said in a letter to the agency that it did not intend to regulate greenhouse gases. After issuing the new rules, Rogers noted, EPA gave Texas options.

"Texas' response was it had no intention," she said.

Rogers did, however, seem open to Texas' constitutional argument, and the states also found some support in Judge Brett Kavanaugh's questioning.

Kavanaugh aggressively questioned EPA's lawyers about whether a provision in the Clean Air Act was triggered by the greenhouse gas regulations and, consequently, the states should have been provided three years.

He contended that the addition of new pollutants represented a significant change to the PSD program and, thus, the SIP process.

"They weren't there before," he said. . . .

The Associated Press reports:

A federal judge, asked by the government on Tuesday to freeze his plan giving teenage girls broader access to morning-after birth control, instead seized the chance to accuse health officials of taking steps that would end up hurting poor people and improve their chances of prevailing in a protracted legal fight with reproductive rights advocates.

U.S. District Judge Edward Korman took aim at the U.S. Food and Drug Administration's announcement last week that it was loosening restrictions on the Plan B One-Step morning-after pill, saying it can be sold without a prescription to those 15 and older. Previously, those sales were limited to teenagers who were at least 17.

The move came just before the U.S. Department of Justice announced it would appeal an order by Korman requiring drugstores to sell both Plan B and cheaper generic alternatives to women of any age.

At a hearing in federal court in Brooklyn, Korman told an assistant U.S. attorney that the FDA ruling was a cynical attempt to "sugarcoat this appeal of yours."

Korman said he would issue a ruling before the end of the week on the request to stay his order. But he left little doubt about where he stood, accusing the Justice Department lawyer of "intellectual dishonesty" and calling further delays in the 12-year-old case "a charade."

When the government lawyer argued that delaying Korman's order while it was on appeal was in the public interest, the judge responded, "Is there a public interest in unwanted pregnancies ... that can often result in abortions?"

The judge also expressed outrage at another provision under the new FDA rules that would require government-issued photo identification to get the pills, placing an "impossible burden" on disadvantaged people without IDs.

"The poor, the young and African-Americans are going to be put in the position of not having access to this drug," he said.

Making the same point earlier, he asked, "Is that the policy of the Obama administration?"

In court papers, attorneys for the Center for Reproductive Rights have said every day that the ruling does not get enforced is "life-altering" to some women. They said a delay for the duration of appeals "will perpetuate - for months, or years - the unconscionable delays that have permeated the defendants' actions with regard to emergency contraception."

The Justice Department had argued that "substantial market confusion" could result if Korman's order stood.

"I know the court has been frustrated with the pace (of the case)," Assistant U.S. Attorney Franklin Amanat said Tuesday. But he added, "Sometime the people are better served when the government acts deliberately and incrementally."

Korman in the past had been highly critical of the government's behavior, saying in his ruling that the decision to limit sales of the contraceptive was "politically motivated, scientifically unjustified and contrary to agency precedent."

The FDA was preparing in 2011 to allow over-the-counter sale of the morning-after pill with no agency limits when Health and Human Services Secretary Kathleen Sebelius overruled her own scientists in an unprecedented move.