How did this slip through?

Not being a patent attorney, I don't pay much attention to patent law. There are occasionally stupid patent decisions that get my ire up, but by and and large the ins and outs of patent procedure, but apparently two-thirds of the patent judges were unconstitutionally appointed. DoJ hasn't even denied it, and constitutional lawyers are all in agreement that it's not even close.

This could REALLY muck things up for the patent bar, which (unsurprisingly) didn't notice the error because patent attorneys are generally not accustomed to thinking about things constitutionally. Imagine all the patent hearings and appeals that must be redone, that are invalidated, all those millions once again at stake.

This is patently offensive

The Supreme Court of Washington has affirmed a murder conviction that was based in large part by DNA evidence obtained through absolutely appalling trickery, even by cop standards. Trying to close a cold case, the police concocted a ruse to obtain the DNA- they sent the suspect a letter from a fictitious law firm, claiming that he was a class member in a (phony) class action. Naturally, he signed a few documents and licked an envelope.

They got the DNA off the envelope.

This is an outrage! The cops subverted the legal process, claiming to be his attorneys! This is an instance in which bad facts made bad law. The guy was a rapist and murderer, so why let "technicalities" like the Constitution stand in the way.

I have been uninspired recently

I tried to hard to overreach with this blog. I think I wrote some interesting things at times, but I also went for weeks without anything to say.

When you cast too wide a net, you will come up empty.

Yet, I don't particularly want to reel in my focus. I am a law geek, first and foremost. I love the law, including matters outside my immediate practice.

Which is why Scott v. Harris is so fascinating. It is a summary judgment case on the issue of whether a police officer has qualified immunity when using force to stop a high speed chase. The rule at summary judgment is to accept the non-moving party's version of events as true, and then decide if there any issue of fact worthy to reach a jury.

Here, the plaintiff alleged that he was moving slowly and carefully, and that force was unnecessary. The defendant argued that the plaintiff was, essentially, a bat out of hell. Had the Court followed the usual rule, and summary judgment denied. Instead, the Court did something truly unique- they found their own facts, based on a video of the chase, then made the video part of the public record in the case, including it as part of the opinion (92Mb RealPlayer file).

Because of the video, the Court found that qualified immunity existed, 8 to 1. This is a first- the Court is usually deferential to the formalities of the law. Here, the formalities were just thrown out the window. Good- formalities run the risk of becoming meaningless lawyer's tricks when used to thwart the obvious (and just) outcome.

Oh. My. God.

I owe the Legislature of Pennsylvania an apology. The phrase "ultimate sexual act" is not an example of poor legislative drafting. Instead, it copies word for word the language of the Supreme Court in Miller v. California:

We emphasize that it is not our function to propose regulatory schemes for the States. That must await their concrete legislative efforts. It is possible, however, to give a few plain examples of what a state statute could define for regulation under part (b) of the standard announced in this opinion, supra: (a) Patently offensive representations or descriptions of ultimate sexual acts, normal or perverted, actual or simulated.

I still contend it makes little sense, but the Legislature just followed exactly the language of the decision.

Civil unions underway in New Jersey- America still not collapsing

Civil unions are officially underway in the Garden State, my much maligned but I would go to war to save her home state. The more I think about the nature of rights, the more I think that Justice Scalia is off his rocker. Controversies like same-sex marriage are exactly the sort of thing that courts should be deciding. Justice Scalia recently debated a Justice of the Supreme Court of Canada on the matter of original intent, living constitutions, and the role of the judiciary. Consider this assertion by Justice Scalia:

This notion simply encourages judges to make anti-democratic decisions that extend rights to questionable groups such as bigamists and pederasts, he said.

Judge Scalia said back in the days when the United States was a true democracy, citizens changed the Constitution if a consensus developed around adding or eliminating a human right. “What democracy means is that the majority rules,” he said. “If you don't believe that, you don't believe in democracy.”

But Mr. Justice, equal protection of the law is the majoritarian principle, duly ratified by three-fourths of the States. Doesn't it behoove the alleged democratic majority to ratify and clarify the (in this case) non-meaning of equal protection? I admit that this argument is simplistic at best, and a borderline red-herring at worst, but equal protection of the law remains the democratcially adopted law of the land.

NOTE: I started to write one thing, then crossed it out and went a different way. Hence the reason that the title doesn't quite match the rest of the post.

Two rulings today

The Supreme Court decided two cases today. Well, they decided one, and punted on the other.

In the first ruling, the Court held that paying royalties to a putative patentee under a license agreement does not foreclose the licensee from challenging the validity of the patent at issue in the license itself. This is a great turn of events for innovation- patent trolls have basically choked the system, and anyone developing new technologies is at risk from the increasingly frivolous patent system.

In the second case, the Court granted cert to decide one question (whether a defect in the indictment can be harmless error), but decided a different question altogether (that the indictment wasn't really defective after all). This is the second case this term in which the Court dodged an important Constitutional question, the first being Musladin. I sense in this the work of the Chief Justice, who wants the Court to issue narrowly crafted decisions on the most minute of grounds. Meaning useless precedent.

Back to regular blogging tomorrow.

Stealing power

Congress passes hundreds of bills each year, the vast majority being completely ordinary and uncontroversial. Funding for this or that; naming a bridge or highway in honor of some local hero; or approving a nominee for a seat on the Marine Mammal Commission. There is little debate, because as soon as the deed is done the Congress moves on to something else.

The Postal Accountability and Enhancement Act was intended to be one such wholly unremarkable piece of legislation. It passed both Houses without debate, or even recorded votes. However, the New York Daily News reports that the President issued a signing statement that would allow the Feds to open a person's mail- without a warrant or judicial oversight.

The executive branch shall construe subsection 404(c) of title 39, as enacted by subsection 1010(e) of the Act, which provides for opening of an item of a class of mail otherwise sealed against inspection, in a manner consistent, to the maximum extent permissible, with the need to conduct searches in exigent circumstances, such as to protect human life and safety against hazardous materials, and the need for physical searches specifically authorized by law for foreign intelligence collection.

Note how the President seems to imply that the legislation authorizes the opening of mail ("which provides for opening of an item of a class of mail..."), but the Act actually prohibits the opening of mail. Subsection 1010(e) says that "No letter of such a class of domestic origin shall be opened except under authority of a search warrant authorized by law...." This seems clear and unambiguous, but the signing statement incorporates the phrase "exigent circumstances", which anyone with a passing understanding of search and seizure law will immediately recognize. Wikipedia's definition is both accurate and simple:

An exigent circumstance, in the American law of criminal procedure, allows law enforcement to enter a structure without a warrant.... It must be a situation where people are in imminent danger, evidence faces imminent destruction or a suspect will escape.

Barring the example of the letter bomb, it is virtually inconceivable that the government could demonstrate the necessary exigency. An exigent circumstance exists when a law enforcement officer has actual knowledge of a crime in progress and reasonably believes that she must act immediately to save a life or preserve evidence- if the dealer is going to flush the crack down the toilet, the police will be able to bust in and save the evidence. It is not an exigent circumstance that someone suspected of criminal activity is receiving mail from someone else suspected of criminal activity, and the government believes that the mail contains information about the crimes.

The real meat of the signing statement seems to disregard the need for exigent circumstances altogether. This is a close reading akin to statutory construction. The statement is written like bad legislation, with too many commas. The language about exigent circumstances is immediately followed by a non-restrictive clause explaining exigent circumstances themselves ("such as to protect human life and safety against hazardous materials..."). The next clause is an entirely separate justification for opening the mail that has nothing to do with exigent circumstances- take the non-restrictive clause and other legally inoperative language out, and the statement becomes:

The executive branch shall construe... subsection 1010(e) of the Act... in a manner consistent... with the need to conduct searches in exigent circumstances... and the need for physical searches specifically authorized by law for foreign intelligence collection.

Read this way, there are two separate and distinct rationales for opening mail- 1) when exigent circumstances exist or 2) when necessary for foreign intelligence collection.

Would Congress have authorized that without debate? I doubt it.

Illegal immigration suit

The ACLU and the Mexican American Legal Defense and Education Fund have filed suit against the City of Farmers Branch, Texas alleging that its ordinance prohibiting renting to illegal immigrants is unconstitutional.

My response- well, duh. It is discriminatory- it is a two-bit jerkwater town trying to set immigration policy on its own, and it is just racist, unlike a similar ordinance in Hazleton, Pennsylvania that apparently also applies to Santa Claus.

NOTE: The town fathers in Hazleton have referred the above website to the police for investigation, because it seeks donations, presumably to defray the costs or the domain and hosting. Sheesh, some people have no sense of humor- particularly when calling attention to their bigotry and foolishness.

Proving yet again that the law is inadequate

Today's Salon has a compelling story about a fertility clinic mixup. Two couples go for treatment- Couple One wants HIS sperm in HIS girlfriend only; Couple Two needs an anonymous donor. The clinic (by all accounts, accidentally) used the first man's sperm in the second man's wife. Now Man One wants paternity and visitation; Man Two does not. The lawsuits fly, and the law is not in the position to resolve it. One hundred years ago, people would have laughed if someone suggested that a man could donate his sperm. Today it is perfectly acceptable- but the laws that govern the family are not much different.

The law is perpetually changing, but at a glacial pace; technology is also perpetually changing, but at Moore's pace. This has been especially apparent in intellectual property law, where patents now routinely outlive the useful life of the invention, but the march of technology now requires entirely new frameworks in just about everything. For example, the Fourth Amendment protects people from unreasonable searches "in their persons, houses, papers, and effects." Is a word processing document a "paper"? Does one's "house" extend to the server on which the document is stored? Is there a reasonable expectation of privacy in the call log on your cell phone?

These issues will explode in the coming years. Despite the thousands upon thousands of pages of new laws and regulations that spill forth each year, the bulk of the law that governs the way people live from day-to-day is roughly 1,000 years old. The Constitution is a mere babe in the woods compared to the Magna Carta, and yet the Constitution- without question the most important legal document in the history of all humanity- was written for a world lit by candlelight and coal fire; for a world in which the trip from Philadelphia to New York took about a week; for a world in which goods rarely left the town they were produced in, never mind the state- but the Interstate Commerce clause is (textually, at least) unchanged in that entire time.

The law is supposed to change slowly. The trick is to try to think ahead, to leave room for the future. This is hard to do even during times of relative stability, but it has been done before. And sometimes, the changes are actually good. There is a reason that the Constitution survives after 200-plus years.