Family law & technology: addendum

Salon does it two days in a row, this time with a post in Broadsheet about a German court ordering a gynecologist to pay child support to a woman whose contraceptive implant failed.

It's one thing to call for the men responsible for making babies to cough up the cash and provide for their chitlins, but a court in Germany this week has redefined the concept of responsibility for children with a ruling that will no doubt stand as a low moment in judicial discretion. According to the BBC, a gynecologist who inserted a contraceptive patch that left his patient chagrined and with child has been ordered to pay child support.

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.

About marriage, gay or straight

I am both proud and ashamed of my home state. As it is (literally) yesterday's news, I don't need to remind you that the Supreme Court of New Jersey held that gays are entitled to the same rights straights enjoy. That is the part the makes me proud. The part that shames me is that the Court punted and did not come out in favor of marriage, but rather directed the Legislature to do something about it within six months, whether that means marriage or civil unions or whatever.

Naturally the decision was met with glee, outrage, disappointment, or optimism- sometimes all at once. Those who favor "protecting" marriage accused the Court of acting as a superlegislature; of judicial activism; of simple wrongheadedness. Those who think the decision didn't go far enough (like me) are calling it cowardice, pure and simple. And there are hundreds of shades of gray in between.

Marriage is legally a set of rights and responsibilities, and these have shifted over time as our understanding of the nature of humanity has changed. It was not too long ago that husbands were required on penalty of incarceration to provide for their wives; however, the wife sublimated her legal existence to that of her husband's. A married woman lost all right to transfer or acquire property- in fact, if a woman had owned property before marrying, she lost all power to dispose of it once she married. As Blackstone put it:

By marriage, the husband and wife are one person in the law: that is, the very being or legal existence of the woman is suspended during the marriage, or at least is incorporated and consolidated into that of the husband: under whose wing, protection, and cover, she performs every thing.

This is no longer the case. As our understanding of the nature of men and women changed, marriage changed with it. This, in turn, changed our understanding of marriage. Divorce, once granted only for cause, is now granted without any fault at all. The law now recognizes unmarried couples and children born out of wedlock. Times change, and slowly but surely the law changes with them. The common law practically demands it.

If law and understanding were immutable, locked forever in the attitudes of an ancient time, then gay marriage might seem like a major leap forward. Instead, it is only the next increment. Our understanding of sex, gender, and sexuality (all very different things) has changed. As we continue to evolve in our understanding, such distinctions seem arbitrary, and it seems equally arbitrary to deny a significant class of people something so basic based on an understanding of human nature that is no longer entirely valid.

Remember that in the eyes of the law, marriage is not a sacred covenant- Blackstone remains completely correct to this day: "OUR law considers marriage in no other light than as a civil contract."

The religious nature of a marriage is completely out of the jurisdiction of the courts. When faced with a claim of unequal protection, the Court cannot consider whether a church would object to it. Recognition of same sex couples would have absolutely no effect on any church. The Catholics would continue to disavow these marriages, just as Unitarians would continue to affirm them (as they have done so for some time now). Married people enjoy certain benefits that unmarried people do not- is it legal to deny those rights to a particular class based on their orientation?

I venture that it is not.

This bothers me

Just a simple contract dispute over a rental car, a case that by itself should probably have never gotten to court in the first place. Certainly not a case that anyone will remember for its actual claim.

The case might be remembered for another thing, however. The plaintiff- a devout Muslim woman- came to court wearing the niqab, a full face veil. The Judge told her to remove it.

The Judge said that in order to determine her credibility, he had to see her face. It makes sense- juries are told to watch the witness' facial expressions as one of the things to consider. Sometimes you can just tell when someone isn't quite telling the truth.

This is different, though- the niqab is a display of piety, not unlike a yarmulke. Can you imagine telling a nun to remove her habit because it unfairly implies honesty? Would an Amish witness be required to dress "fancy"?

I do not think it is driven by anti-Islamic animus, but insensitivity. I hope this goes up on appeal, I hope there is a ruling that will allow her to testify in the niqab. No one should have to choose between their day in court over a $2,000 repair bill or their conscience.

And in a decidedly less intelligent legal development...

Wife comes home. Catches husband having sex. With the dog (work safe).


Apparently she was composed enough to take pictures with her cameraphone. After three and a half years in a public defender's office, nothing shocks me anymore.

The absurdity of patent law

Last week, the Patent office granted a patent to a firm called Parago. Hardly newsworthy- patents are granted hundreds of times a week. This patent, however, ought to infuriate everyone.

Manufacturers and service providers offer rebates as a financial incentive to increase sales. Rebates offer cash back to consumers who fulfill a set of requirements after purchasing a product bearing a rebate. By requiring post-purchase activities, the rebate offerer attempts to reduce the number of successful rebate claimants. Breakage occurs when a product bearing a rebate is sold, but the rebate is not successfully claimed.... Thus, manufacturers establish procedures to maintain a sufficient rate of breakage....

Consumers, in contrast, desire the quickest and easiest process for receiving their rebates. This creates a tension between the manufacturer's desire to maintain consumer satisfaction and the need to sustain a sufficient level of breakage in rebate programs.

In other words, Parago has developed a better system to get people to screw up, thus denying the rebate. That may be offensive and bad business sense for Parago's clients- according to one blog, their big account is Circuit City- but that is not the truly offensive part.

What bothers me is that this was patentable at all.

Reading the patent in depth, it would appear that the real "invention" amounts to a web interface for rebate processing- all the same stupid steps (receipts, account numbers, proof of purchase, etc.) done on the web. Any remotely web savvy person could have developed their site, same as all the other businesses that have adopted the internet.

The problem is twofold. In patent law, the burden to prove patentability is not on the inventor- it is on the patent agent, a disinterested government employee charged with determining the two criteria, novelty ("Is this invention really new?") and non-obviousness ("Is this invention really just the next logical step after all the other steps have been added up?").

Here is where things get really screwed up. The current state of the law requires a prior "teaching, suggestion, or motivation" that the agent can point to before the patent will be denied. In other words, even though it is completely obvious that you can process rebates online, it is not legally obvious unless someone, somewhere, wrote an article about it.

Fortunately, all this could change soon. The issue will be argued this November at the Supreme Court, and hopefully they will do the right thing. As the EFF argued in its amicus brief, this test threatens open source software development, because "holders of bogus obvious patents, assisted by the Federal Circuit’s improper test, may limit that growth by destroying the alternative economic incentives upon which [open source software] companies rely."

Think of it like this- the more obvious the idea, the less likely someone is to write about it. While it may seem like a no-brainer that an engine could be installed on a carriage, George B. Selden, who had neither built an engine nor a carriage, would not be remembered as the first patent troll but as the inventor of the car- because nobody wrote about it.

My new project

I have been blogging for a number of years now. Mostly about the state of my life, but I have also done some topical blogs. I had a political blog for about a year, but personal issues got in the way of regular updates, and I let it die, although I maintain the archive.

Rejuvenated, I am starting a new topical blog, this time about something near and dear to me- the law. I am a lawgeek- meaning that not only can I recite cases and their holdings off the top of my head, I like to go a step further and break down the framework of the state of the law to see how the court got there. The essence of geekery is to break down systems with an eye toward improvement.

What I will not do here is talk about my own cases. Ethically I may not do that, nor will I take positions on issues that may come into play in my own cases. An opinion I express here may be adverse to a position I have to take later.

In any event, I hope to make this blog interesting and informative. Stick around!