The presidential election circus upon which we are well launched strikes me -- solipsistically -- as a contest not among individuals, not between parties, but between two theories I've long carried about in my head about how US politics works.
I've written of these theories before. Here is one example. What I think of as the "short cycle" theory postulates cycles that are roughly 30 years long -- so either 32 or 28 years, since 30 itself is not divisible by 4. Obama's election in 2008 can be compared to the election of other relatively obscure figures who carried on the impetus of a reform movement past its prime. A haberdasher in 1948 elected as a last hurrah for the New Deal. Four years later he bowed out, letting Adlai Stevenson take the fall for Eisenhower's victory. Twenty-eight years after 1948 brings us to 1976, when a peanut farner was elected as a final upsurge of New Frontier/Great Society sentiment. Four years later he was mugged by a Kennedy on the way to a re-nomination that proved worthless.
But there is also a "long cycle" theory. According to this, there have been three great periods of constitutional equilibria in US history, separated by chaotic periods of tumult. (There were also two distinct imperial periods in American colonial history, separated by a period of tumult in the 1680s.)
It certainly appears as if the Third Republic ran aground in 2007-08 in much the same way that the Second Republic ran aground in 1929. If that is so, then we are in the midst of a period of turmoil or chaos, and when the dust settles we shall find ourselves with a new equilibrium, a Fourth Republic. If this cyclical theory is right, then Obama is a Washington, a Lincoln, or a Roosevelt, and 2012 is not 1952 or 1980 all over again. It is 1936.
I enjoy the contemplation of both theories, and I have carried them both around in my head. Now I find that they are in stark conflict, and that one of them seems about to receive its falsification. My only regret is that I have but two theories to give for my country.
Showing posts with label constitutional law. Show all posts
Showing posts with label constitutional law. Show all posts
30 December 2011
02 July 2011
Conclusion of a Discussion of a Supreme Court Term
Kennedy's opinion makes the following points:
Justice Breyer writes in dissent for himself, Justice Ginsburg, and Justice Kagan. He claims that the statute "meets the First Amendment standard this Court has applied when the government seeks to regulate commercial speech," i.e. the government's interest in restricting the speech is substantial (the protection of public health), the regulation in question directly serves that interest (in the explicit judgment of the legislature), and the regulation is narrowly tailored to that end, in that it "permits doctors who wish to permit use of their prescribing practices to do so.")
I'm not a big fan of "intermediate tiers," and thus not a fan at all of the Central Hudson language on which Breyer is drawing here.
The dissent doesn't make any case that the detailers were misusing their speech by, say, lying to the doctors about what their companies' drug can do. Further, if the detailers are lying, a response should be tailored to that. How would it be a "narrowly" tailored when the idea is to make it more difficult for the detailers to get accurate information useful in such a pitch?
What the government fears here, and what the dissenters join them in fearing, is not falsehood-spouting detailerts, but persuasive ones. And I join Justice Kennedy in seeing that as pernicious.
Meanwhile, I've looked at it from a portfolio-management point of view here.
(I'm not crazy about the headline, which sounds unnecessarily censorious -- but you learn when you do these things that you aren't in charge of the headline.)
- He rejects the notion that mere dry "data" is not speech, that it is merely a commodity. "Facts, after all, are the beginning point for much of the speech that is most essential to advance human knowledge and to conduct human affairs."
- Vermont apparently had said at argument that even if data in general is speech, there should be an exception in the case of prescriptions, where the raw data should be regarded as non-speech for policy reasons. Kennedy doesn't actually reject that argument but he renders it irrelevant, because
- The speech of the detailers in their contacts with doctors is indisputably speech, and Vermont's restrictions on data are designed to burden that speech, imposing a speaker and content-based burden on protected expression "and that circumstance is sufficient to justify application of heightened scrutiny." So even if the prescriber-identifying information itself is a "mere commodity," this law fails on first amendment grounds.
- One of Vermont's offered justifications for the law is that it protects doctors from "harassing sales behaviors." Kennedy isn't buying into that one. A physician has the same right to refuse to communicate with a detailer that a homeowner has to refuse to discuss faith with a Jehovah's Witness. This law is not necessary to make that so.
Justice Breyer writes in dissent for himself, Justice Ginsburg, and Justice Kagan. He claims that the statute "meets the First Amendment standard this Court has applied when the government seeks to regulate commercial speech," i.e. the government's interest in restricting the speech is substantial (the protection of public health), the regulation in question directly serves that interest (in the explicit judgment of the legislature), and the regulation is narrowly tailored to that end, in that it "permits doctors who wish to permit use of their prescribing practices to do so.")
I'm not a big fan of "intermediate tiers," and thus not a fan at all of the Central Hudson language on which Breyer is drawing here.
The dissent doesn't make any case that the detailers were misusing their speech by, say, lying to the doctors about what their companies' drug can do. Further, if the detailers are lying, a response should be tailored to that. How would it be a "narrowly" tailored when the idea is to make it more difficult for the detailers to get accurate information useful in such a pitch?
What the government fears here, and what the dissenters join them in fearing, is not falsehood-spouting detailerts, but persuasive ones. And I join Justice Kennedy in seeing that as pernicious.
Meanwhile, I've looked at it from a portfolio-management point of view here.
(I'm not crazy about the headline, which sounds unnecessarily censorious -- but you learn when you do these things that you aren't in charge of the headline.)
30 June 2011
Beginning a Discussion of the Supreme Court Term
Another term of the U.S. Supreme Court has come and gone. Again, the court has issued a lot of decisions that are, in their own several ways, fascinating. There is one that leaps out at me this year as THE decision of the term, in relation to my own usual net of obsessions, and I'll discuss that tomorrow. Today, I'll do a round-up of others of this term's cases, in no particular order.
I'll say nothing more about cases I've discussed in earlier blog entries, such as STANFORD v. ROCHE, the patent-law case I discussed on June 17.
1) Flores-Villar v. U.S.: This is a sex discrimination case (the sort that Justice Ruth Bader Ginsburg made her reputation litigating in the 1970s) in an immigration context. It came out as a 4-4 decision, because Justice Kagan recused herself. For these particular litigants, that means that the decision of the 9th Circuit Court of Appeals remains the law.
The case turned on a quirk in US law regarding citizenship. A child born out of the US, to a mother who is a US citizen, is a U.S. citizen, regardless of such matters as her marital status or the father's citizenship etc. What then of a child born out of the U.S., to a mother who is not a US citizen, but with a father (acknowledged paternity) who is a U.S. citizen, in circumstances in which the parents are not married?
Under the law, this child is not a citizen of the US unless his citizen father had resided in the U.S. for at least 5 years after his 14th birthday. Thus, by obvious arithmetic, no one can become a US citizen in this way whose father is not at least 19 at the time of the child's birth.
Why are there different rules for citizen fathers than for citizen mothers? Does that violate the equal protection clause of the 14th amendment? This was the contested question -- contested under a body of law known as the "intermediate tier" doctrine, regarding sex discrimination. Such a distinction is seen as suspect, but as somewhat less suspect than racial discrimination. The appellate court upheld the law, and SCOTUS didn't muster the votes to change that.
2) Bond v. United States. This was the federalism case of the term, arising out of a bizaare mis-application of an anti-terrorism statute. Sex-in-the-suburbs. In this case the suburbs of Philadelphia. Carol Anne Bond of Landsdale, PA was ticked off that her husband had impregnated a neighbor, and struck back by placing caustic substances on various surfaces she knew the Jezebel in question was likely to touch, including Jezebel's car door and mailbox.
Bond was convicted of a federal crime, violating the Chemical Weapons Convention Implementation Act of 1998. You can almost hear her introducing herself to the other inmates. "I'm Bond. Carol Bond."
The decision, by Justice Kennedy, used some sweeping pro-10th-amendment language, explicitly giving the right to "vindicate" 10th amendment interests to individuals. "Her rights in this regard do not belong to a state."
It is possible that the Court expects that next term it will overturn Obamacare or crucial parts of it on federalism grounds, and it saw this case as a helpful set-up to that decision.
3) Skinner v., Switzer. A petition for a Texas inmate on death row. Always dramatic. In this case, it was Justice Ginsburg who wrote a 6 to 3 opinion that said that convicted inmates seeking access to DNA evidence in an effort to prove their innocence may use a federal civil-rights lawsuit in order to do so.
4) Boeing v. United States. The court somewhat limited the range of the "state secrets" doctrine in the course of contract disputes. Further, hearteningly (for those of us who are not lovers of "state secrets" in general) it did so unanimously, in an opinion by Justice Scalia.
It is a rare case involving a defense-industry contracts dispute that draws such a range of amicus briefs, including a brief from the Al-Haramain Islamic Foundation Inc., "in support of neither party," in which the Foundation's lawyers maintained that the court should inquire into the foundations of the state secrets doctrine itself, and should characterize it as a "common-law evidentiary rule of nonconstitutional provenance."
I don't see any place in the opinion where Scalia takes them up on that. He sticks to his knitting, in an opinion that declines to enforce a contract against private parties in a situation in which the invocation of the state-secret doctrine has precluded a prima facie valid defense to the governments claims.
5) Brown v. Entertainment Merchants Assn. Sale of video games to minors comes under the protection of the first amendment.
The cool thing about this case is that earlier in the proceedings it was known as Schwarzenegger v. Entertainment Merchants. Given subsequent revelations, the puns there write themselves.
The really big case of the term ... tomorrow.
I'll say nothing more about cases I've discussed in earlier blog entries, such as STANFORD v. ROCHE, the patent-law case I discussed on June 17.
1) Flores-Villar v. U.S.: This is a sex discrimination case (the sort that Justice Ruth Bader Ginsburg made her reputation litigating in the 1970s) in an immigration context. It came out as a 4-4 decision, because Justice Kagan recused herself. For these particular litigants, that means that the decision of the 9th Circuit Court of Appeals remains the law.
The case turned on a quirk in US law regarding citizenship. A child born out of the US, to a mother who is a US citizen, is a U.S. citizen, regardless of such matters as her marital status or the father's citizenship etc. What then of a child born out of the U.S., to a mother who is not a US citizen, but with a father (acknowledged paternity) who is a U.S. citizen, in circumstances in which the parents are not married?
Under the law, this child is not a citizen of the US unless his citizen father had resided in the U.S. for at least 5 years after his 14th birthday. Thus, by obvious arithmetic, no one can become a US citizen in this way whose father is not at least 19 at the time of the child's birth.
Why are there different rules for citizen fathers than for citizen mothers? Does that violate the equal protection clause of the 14th amendment? This was the contested question -- contested under a body of law known as the "intermediate tier" doctrine, regarding sex discrimination. Such a distinction is seen as suspect, but as somewhat less suspect than racial discrimination. The appellate court upheld the law, and SCOTUS didn't muster the votes to change that.
2) Bond v. United States. This was the federalism case of the term, arising out of a bizaare mis-application of an anti-terrorism statute. Sex-in-the-suburbs. In this case the suburbs of Philadelphia. Carol Anne Bond of Landsdale, PA was ticked off that her husband had impregnated a neighbor, and struck back by placing caustic substances on various surfaces she knew the Jezebel in question was likely to touch, including Jezebel's car door and mailbox.
Bond was convicted of a federal crime, violating the Chemical Weapons Convention Implementation Act of 1998. You can almost hear her introducing herself to the other inmates. "I'm Bond. Carol Bond."
The decision, by Justice Kennedy, used some sweeping pro-10th-amendment language, explicitly giving the right to "vindicate" 10th amendment interests to individuals. "Her rights in this regard do not belong to a state."
It is possible that the Court expects that next term it will overturn Obamacare or crucial parts of it on federalism grounds, and it saw this case as a helpful set-up to that decision.
3) Skinner v., Switzer. A petition for a Texas inmate on death row. Always dramatic. In this case, it was Justice Ginsburg who wrote a 6 to 3 opinion that said that convicted inmates seeking access to DNA evidence in an effort to prove their innocence may use a federal civil-rights lawsuit in order to do so.
4) Boeing v. United States. The court somewhat limited the range of the "state secrets" doctrine in the course of contract disputes. Further, hearteningly (for those of us who are not lovers of "state secrets" in general) it did so unanimously, in an opinion by Justice Scalia.
It is a rare case involving a defense-industry contracts dispute that draws such a range of amicus briefs, including a brief from the Al-Haramain Islamic Foundation Inc., "in support of neither party," in which the Foundation's lawyers maintained that the court should inquire into the foundations of the state secrets doctrine itself, and should characterize it as a "common-law evidentiary rule of nonconstitutional provenance."
I don't see any place in the opinion where Scalia takes them up on that. He sticks to his knitting, in an opinion that declines to enforce a contract against private parties in a situation in which the invocation of the state-secret doctrine has precluded a prima facie valid defense to the governments claims.
5) Brown v. Entertainment Merchants Assn. Sale of video games to minors comes under the protection of the first amendment.
The cool thing about this case is that earlier in the proceedings it was known as Schwarzenegger v. Entertainment Merchants. Given subsequent revelations, the puns there write themselves.
The really big case of the term ... tomorrow.
17 June 2011
Roche Beats Stanford
On Monday, June 6, the U.S. Supreme Court issued a fascinating patent-law decision, STANFORD UNIVERSITY v. ROCHE, in which it held that title to the intellectual property in a federally-funded invention does not necessarily vest in the institution receiving those federal funds.
In so doing, the Court limited the scope of some of the language of the University and Small Business Patent Procedures Act of 1980, also known as the Bayh-Dole Act.
The IP in question is to a diagnostic test for HIV involving a polymerase chain reaction (PCR), developed by a Stanford research fellow named Mark Holodniy. Under the Bayh-Dole Act, in a provision that was designed precisely to encourage federally-funded universities to engage in cutting-edge research, the rights to the PCR diagnostic would have been Stanford's, but for a contract Holodniy signed with Cetus, a company where he was a visiting scientist, in which he said he does "hereby assign" his rights to Cetus.
The great thing about PCR is that it does more than simply discover the presence of HIV. It measures the amount of the virus in a patient's blood stream, thus determining whether and to what degree he is benefitting from therapy.
In 1991 Cetus was acquired by, and its rights passed to, Roche.
In 2005, Stanford brought a lawsuit contending that Roche was illegally selling HIV test kits that infringed on Stanford's patents. Roche responded that it was a co-owner of the procedure. The matter went to the Supreme Court, with Stanford claiming that Holoniy had no right to assign to Cetus/Roche, because the right belonged by law to Stanford, so the document in which he purports to make that assignation is void.
U.S. patent law gives the initial IP right to the inventor. The inventor can then assign it away, to one party or another or no one, as he deems best. Indeed, the Constitution gives Congress the authority to secure "to Authors and Inventors the exclusive Right to their respective Writings and Discoveries." It does not give the Congress the authority to secure that exclusive right to an institution employing the authors and inventors. The rather stark individualistic language refers to the authors and inventors themselves.
This decision was not in a strict sense a constitutional decision. It interpreted the language in Bayh-Dodd in such a way as to avoid any conflict with the relevant clause of the constitution. But it certainly did invoke the policy that the majority sees the document's language as endorsing.
Institutions such as Stanford will not suffer any great wound from this decision. They simply have to tighten up the language of their own employment contracts for their postdocs and others to make sure they have the assignation rights from the Holodniys of the world before anyone else puts a well-drafted document in front of any of them. Yet a principle is affirmed, by virtue of the fact that Stanford takes this loss and has to rework its contracts, the principle that the choice, in the first instance, must lie with the Holodniys.
In so doing, the Court limited the scope of some of the language of the University and Small Business Patent Procedures Act of 1980, also known as the Bayh-Dole Act.
The IP in question is to a diagnostic test for HIV involving a polymerase chain reaction (PCR), developed by a Stanford research fellow named Mark Holodniy. Under the Bayh-Dole Act, in a provision that was designed precisely to encourage federally-funded universities to engage in cutting-edge research, the rights to the PCR diagnostic would have been Stanford's, but for a contract Holodniy signed with Cetus, a company where he was a visiting scientist, in which he said he does "hereby assign" his rights to Cetus.
The great thing about PCR is that it does more than simply discover the presence of HIV. It measures the amount of the virus in a patient's blood stream, thus determining whether and to what degree he is benefitting from therapy.
In 1991 Cetus was acquired by, and its rights passed to, Roche.
In 2005, Stanford brought a lawsuit contending that Roche was illegally selling HIV test kits that infringed on Stanford's patents. Roche responded that it was a co-owner of the procedure. The matter went to the Supreme Court, with Stanford claiming that Holoniy had no right to assign to Cetus/Roche, because the right belonged by law to Stanford, so the document in which he purports to make that assignation is void.
U.S. patent law gives the initial IP right to the inventor. The inventor can then assign it away, to one party or another or no one, as he deems best. Indeed, the Constitution gives Congress the authority to secure "to Authors and Inventors the exclusive Right to their respective Writings and Discoveries." It does not give the Congress the authority to secure that exclusive right to an institution employing the authors and inventors. The rather stark individualistic language refers to the authors and inventors themselves.
This decision was not in a strict sense a constitutional decision. It interpreted the language in Bayh-Dodd in such a way as to avoid any conflict with the relevant clause of the constitution. But it certainly did invoke the policy that the majority sees the document's language as endorsing.
Institutions such as Stanford will not suffer any great wound from this decision. They simply have to tighten up the language of their own employment contracts for their postdocs and others to make sure they have the assignation rights from the Holodniys of the world before anyone else puts a well-drafted document in front of any of them. Yet a principle is affirmed, by virtue of the fact that Stanford takes this loss and has to rework its contracts, the principle that the choice, in the first instance, must lie with the Holodniys.
17 September 2007
Free Speech for the Rat
I saw a news story recently about an inflatable rat as a free speech case.
At a labor union rally, in Lawrence, NJ, the event organizers set up a super-sized inflatable rubber rat, standing on its hind legs and baring its fangs. The rat was (it seems to me) a rather eloquent form of speech saying, roughly, "guess how we feel about non-union workers undermining our collective-bargaining efforts."
Lawrence Township apparently has an ordinance prohibiting the use of banners, streamers and inflatable signs, except those announcing grand openings.
That "except" ordinance smells fishy to me. On what principled basis does the manager of a new car dealership have greater rights than a union boss? The car dealership might want to set up a giant inflatable Cougar or Impala. That's okay but the rat threatens some interest that the township police need to protect?
A labor official was fined $100 plus court costs. Not a huge deal, but it's the principle of the thing that rankles. A $1 fine would be excessive if it violates his rights -- either to speak freely or to be treated as an equal of the manager of a business having a grand opening.
New Jersey's constitution, BTW, says this: "Every person may freely speak, write and publish his sentiments on all subjects, being responsible for the abuse of that right."
I like that language. It indicates that the right and responsibility for its abuse are two statements of the same fact, not two distinct facts. All to the good. So ... how did an inflatable rat constitute "abuse"?
At a labor union rally, in Lawrence, NJ, the event organizers set up a super-sized inflatable rubber rat, standing on its hind legs and baring its fangs. The rat was (it seems to me) a rather eloquent form of speech saying, roughly, "guess how we feel about non-union workers undermining our collective-bargaining efforts."
Lawrence Township apparently has an ordinance prohibiting the use of banners, streamers and inflatable signs, except those announcing grand openings.
That "except" ordinance smells fishy to me. On what principled basis does the manager of a new car dealership have greater rights than a union boss? The car dealership might want to set up a giant inflatable Cougar or Impala. That's okay but the rat threatens some interest that the township police need to protect?
A labor official was fined $100 plus court costs. Not a huge deal, but it's the principle of the thing that rankles. A $1 fine would be excessive if it violates his rights -- either to speak freely or to be treated as an equal of the manager of a business having a grand opening.
New Jersey's constitution, BTW, says this: "Every person may freely speak, write and publish his sentiments on all subjects, being responsible for the abuse of that right."
I like that language. It indicates that the right and responsibility for its abuse are two statements of the same fact, not two distinct facts. All to the good. So ... how did an inflatable rat constitute "abuse"?
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