Opinion analysis: Court limits “acting” appointments to fill vacancies

SCOTUS Blog - Wed, 03/22/2017 - 06:34

Shortly after his inauguration, President Donald Trump named Washington lawyer Noel Francisco as the principal deputy solicitor general – the only deputy solicitor general who is a political appointee, rather than a career lawyer. Because Trump had not yet nominated (nor had the Senate confirmed) a solicitor general, Francisco soon began to serve as the acting solicitor general. Earlier this month, Trump announced that he was nominating Francisco to serve as the solicitor general on a permanent basis. Francisco then moved to another job in the Department of Justice; Jeffrey Wall – the new principal deputy solicitor general – now serves as the acting solicitor general. Yesterday’s decision in National Labor Relations Board v. SW General helps to explain why.

The case before the court centered on the interpretation of the Federal Vacancies Reform Act of 1998, which was a response to then-President Bill Clinton’s decision to make Bill Lann Lee the first assistant to the assistant attorney general in charge of the Department of Justice’s civil rights division and then name him the acting assistant attorney general after the Senate declined to confirm Lee in that job. Like the assistant attorney general for civil rights, many other federal government positions also require Senate confirmation. Under subsection 3345(a)(1) of the FVRA, if one of these positions becomes vacant, its duties are generally performed by the first assistant to the post, serving in an acting capacity. But the president can also decide to designate someone else to serve in the acting role – either someone who has been confirmed to another position in the executive branch, pursuant to subsection 3345(a)(2) of the act, or someone who is serving as a senior official in the same government agency, pursuant to subsection 3345(a)(3).

The catch is that another provision of the FVRA, subsection 3345(b)(1), indicates that, “notwithstanding” subsection 3345(a)(1), someone who is nominated to fill a vacant position requiring Senate confirmation “may not perform the office’s functions and duties in an acting capacity unless the person served as first assistant to the vacant office for at least 90 days in the year preceding the vacancy.” Does this apply only applies to first assistants who serve in an acting capacity under subsection 3345(a)(1), as the federal government argues, or does it also apply to all acting officials named pursuant to subsection 3345(a), as the U.S. Court of Appeals for the District of Columbia Circuit ruled? Yesterday the Supreme Court, by a vote of 6-2, rejected the government’s interpretation and agreed with the D.C. Circuit.

In a decision that was joined by Justices Anthony Kennedy, Clarence Thomas, Stephen Breyer, Samuel Alito and Elena Kagan, Chief Justice John Roberts explained that the court’s conclusion flows directly from the text. The FVRA makes clear that subsection 3345(b)(1) “applies to all acting officers” under section 3345, no matter how they were appointed. If Congress had wanted it to apply only to first assistants, Roberts noted, it “could easily have chosen clearer language.”

Roberts added that the text of the FVRA is sufficiently clear that the court does not need to look at the history of the act or how it has been implemented in practice. But even if it did, Roberts continued, the evidence “is not compelling.” In the court’s view, the text of the FVRA reflects a compromise: “The legislation as passed did expand the pool of individuals the President could appoint as acting officers.” But, Roberts stressed, “it also expanded the scope of the limitation on acting service in (b)(1), by dropping the language making (b)(1) applicable only to first assistants.” And Roberts declined the federal government’s suggestion that the court should give “significant weight” to three presidents’ “historical practice” of nominating people who were serving in an acting capacity pursuant to (a)(2) or (a)(3). Roberts observed that those 112 nominations “make up less than two percent of the thousands of nominations” since the FVRA was enacted in 1998. This practice, Roberts added, bears little resemblance to the “voluminous historical record” that influenced the court’s decision a few years ago in a challenge to the president’s recess appointment powers.

Justice Sonia Sotomayor dissented, in an opinion that was joined by Justice Ruth Bader Ginsburg. Sotomayor complained that the majority had interpreted subsection 3345(b)(1) too broadly. Because subsection (b)(1) refers specifically only to subsection (a)(1), she contended, it trumps only that subsection – not (a)(2) or (a)(3). Such an interpretation is consistent with the chain of events that led Congress to enact the FVRA in the first place – that is, Clinton’s decision to make Bill Lann Lee the acting assistant attorney general for civil rights after his nomination to serve in the role permanently had failed. And Sotomayor would give more weight to the executive branch’s consistent practice, without any objection from the Senate, of making nominations in the face of “would-be violations.”

The post Opinion analysis: Court limits “acting” appointments to fill vacancies appeared first on SCOTUSblog.

Categories: Research

Why American Farmers Are Hacking Their Tractors With Ukrainian Firmware

Slashdot: Your Rights Online - Wed, 03/22/2017 - 06:00
Tractor owners across the country are reportedly hacking their John Deere tractors using firmware that's cracked in Easter Europe and traded on invite-only, paid online forums. The reason is because John Deere and other manufacturers have "made it impossible to perform 'unauthorized' repair on farm equipment," which has obviously upset many farmers who see it "as an attack on their sovereignty and quite possibly an existential threat to their livelihood if their tractor breaks at an inopportune time," reports Jason Koebler via Motherboard. As is the case with most modern-day engineering vehicles, the mechanical problems experienced with the newer farming tractors are often remedied via software. From the report: The nightmare scenario, and a fear I heard expressed over and over again in talking with farmers, is that John Deere could remotely shut down a tractor and there wouldn't be anything a farmer could do about it. A license agreement John Deere required farmers to sign in October forbids nearly all repair and modification to farming equipment, and prevents farmers from suing for "crop loss, lost profits, loss of goodwill, loss of use of equipment [...] arising from the performance or non-performance of any aspect of the software." The agreement applies to anyone who turns the key or otherwise uses a John Deere tractor with embedded software. It means that only John Deere dealerships and "authorized" repair shops can work on newer tractors. "If a farmer bought the tractor, he should be able to do whatever he wants with it," Kevin Kenney, a farmer and right-to-repair advocate in Nebraska, told me. "You want to replace a transmission and you take it to an independent mechanic -- he can put in the new transmission but the tractor can't drive out of the shop. Deere charges $230, plus $130 an hour for a technician to drive out and plug a connector into their USB port to authorize the part." "What you've got is technicians running around here with cracked Ukrainian John Deere software that they bought off the black market," he added.

Read more of this story at Slashdot.

Categories: Research

Petition of the day

SCOTUS Blog - Tue, 03/21/2017 - 23:23

The petition of the day is:

Mera v. City of Glendale, California 16-917

Issue: Whether the Constitution preempts local government expressive conduct that intrudes on the federal government’s exclusive foreign affairs power.

The post Petition of the day appeared first on SCOTUSblog.

Categories: Research

National Bank Charters for Fintech: Back to the Future?

beSpacific - Tue, 03/21/2017 - 22:19

National Bank Examiner: “After a long and deliberate process of soliciting public input through multiple discussion documents and a forum on responsible innovation, Tom Curry, the Comptroller of the Currency, has just released his agency’s draft Licensing Manual Supplement called Evaluating Charter Applications from Financial Technology Companies and a companion document titled OCC Summary of Comments and Explanatory Statement: Special Purpose National Bank Charters for Financial Technology Companies. Exploring Special Purpose National Bank Charters for Fintech Companies…”

Categories: Research

Microsoft's Edge Was Most Hacked Browser At Pwn2Own 2017, While Chrome Remained Unhackable

Slashdot: Your Rights Online - Tue, 03/21/2017 - 20:45
At the Pwn2Own 2017 hacking event, Microsoft's Edge browser proved itself to be the least secure browser at the event, after it was hacked no less than five times. Google's Chrome browser, on the other hand, remained unhackable during the contest. Tom's Hardware reports: On the first day, Team Ether (Tencent Security) was the first to hack Edge through an arbitrary write in the Chakra JavaScript engine. The team also used a logic bug in the sandbox to escape that, as well. The team got an $80,000 prize for this exploit. On the second day, the Edge browser was attacked fast and furious by multiple teams. However, one was disqualified for using a vulnerability that was disclosed the previous day. (The teams at Pwn2Own are supposed to only use zero-day vulnerabilities that are unknown to the vendor. Two other teams withdrew their entries against Edge. However, Team Lance (Tencent Security) successfully exploited Microsoft's browser using a use-after-free (UAF) vulnerability in Chakra, and then another UAF bug in the Windows kernel to elevate system privileges. The exploit got the team $55,000. Team Sniper (Tencent Security) also exploited Edge and the Windows kernel using similar techniques, which gained this team the same amount of money, as well. The most impressive exploit by far, and also a first for Pwn2Own, was a virtual machine escape through an Edge flaw by a security team from "360 Security." The team leveraged a heap overflow bug in Edge, a type confusion in the Windows kernel, and an uninitialized buffer in VMware Workstation for a complete virtual machine escape. The team hacked its way in via the Edge browser, through the guest Windows OS, through the VM, all the way to the host operating system. This impressive chained-exploit gained the 360 Security team $105,000. The fifth exploit against Edge was done by Richard Zhu, who used two UAF bugs--one in Edge and one in a Windows kernel buffer overflow--to complete the hack. The attack gained Zhu $55,000. At last year's Pwn2Own 2016, Edge proved to be more secure than Internet Explorer and Safari, but it still ended up getting hacked twice. Chrome was only partially hacked once, notes Tom's Hardware.

Read more of this story at Slashdot.

Categories: Research

Retirement Policy Directions in 2017 and Beyond

beSpacific - Tue, 03/21/2017 - 20:16

Retirement Policy Directions in 2017 and Beyond, February 2017, Vol. 38, No. 4, Employee Benefit Research Institute, 2017.

“With a new Congress and a new president in Washington, how are U.S. retirement policies likely to change? Possibly quite radically, and for two main reasons. First, because of the new majority’s plans to overhaul the entire U.S. tax structure and federal budget in ways that could fundamentally change how private-sector retirement plans are treated in the tax code. Retirement, as a stand-alone issue, is no longer a high legislative priority in Washington. And second, because of the drive to simplify and lower income tax rates, tax-favored retirement provisions in the tax code are vulnerable. As one of the top sources of “revenue foregone” by the federal government, ending or reducing current tax breaks for employment-based retirement plans (particularly 401(k)s) would free up revenue for other things the new Congress and president want to do.”

Categories: Research

Supreme Court Appointment Process: Consideration by the Senate Judiciary Committee

beSpacific - Tue, 03/21/2017 - 20:11

Supreme Court Appointment Process: Consideration by the Senate Judiciary Committee, Barry J. McMillion, Analyst in American National Government. March 17, 2017.
“The appointment of a Supreme Court Justice is an event of major significance in American politics. Each appointment is of consequence because of the enormous judicial power the Supreme Court exercises as the highest appellate court in the federal judiciary. To receive appointment to the Court, a candidate must first be nominated by the President and then confirmed by the Senate. Although not mentioned in the Constitution, an important role is played midway in the process (after the President selects, but before the Senate considers) by the Senate Judiciary Committee. Specifically, the Judiciary Committee, rather than the Senate as a whole, assumes the principal responsibility for investigating the background and qualifications of each Supreme Court nominee, and typically the committee conducts a close, intensive investigation of each nominee.Since the late 1960s, the Judiciary Committee’s consideration of a Supreme Court nominee almost always has consisted of three distinct stages—a pre-hearing investigative stage, followed by public hearings, and concluding with a committee decision on what recommendation to make to the full Senate. During the pre-hearing investigative stage, the nominee responds to a detailed Judiciary Committee questionnaire, providing biographical, professional, and financial disclosure information to the committee. In addition to the committee’s own investigation of the nominee, the FBI also investigates the nominee and provides the committee with confidential reports related to its investigation. During this time, the American Bar Association also evaluates the professional qualifications of the nominee, rating the nominee as “well qualified,” “qualified, ” or “not qualified.” Additionally, prior to hearings starting, the nominee pays courtesy calls on individual Senators in their offices, including Senators who do not serve on the Judiciary Committee…”

Categories: Research

Paper – Ranking New York’s Banks

beSpacific - Tue, 03/21/2017 - 19:36

Brescia, Raymond H. and Scunziano, Ralph, Ranking New York’s Banks: Comparing the Products and Services of the Nineteen Largest Banks Serving Consumers in the Empire State (March 20, 2017). Albany Law School Research Paper No. 12. Available at SSRN:
“New York State is one of the financial capitals of the world, and individual consumers of banking services have a wide range of commercial banks to choose from, all of which provide a dizzying array of products and services. With the details of many of these products and services buried in the fine print of consumer agreements or in the back pages of bank websites, the consumer is sometimes at a loss when choosing which bank to use as his or her primary bank when looking to open a checking account, use an ATM, send a remittance, or open a credit card account. The New York Bank Ranking Index (NYBRI) attempts to take some of the guesswork out of choosing a bank. It evaluates the nineteen largest banks in New York State by awarding points to each bank based on how well the banks meet consumer needs in twenty consumer-focused categories. In its current form, the NYBRI weighs each of these categories equally. The index then ranks the banks by giving a cumulative score under each category and lists them out highest to lowest. Consumers can also go to the accompanying website, to customize a ranking based on their own preferences in terms of the categories to use in scoring the banks and the relative weights to assign these categories. This report provides background information on the NYBRI, explains the process by which we completed the ranking and scoring for the nineteen largest banks serving individual bank customers in New York State, scores the banks and offers the final ranking, and then supplies the individualized data for each bank in an appendix. While we focus on New York State in this study, other jurisdictions can utilize the methodology used here for their own communities.”

Categories: Research

Paper – Carbon Taxation by Regulation

beSpacific - Tue, 03/21/2017 - 19:34

Rossi, Jim, Carbon Taxation by Regulation (March 20, 2017). Minnesota Law Review, Vol. 102 (2018 Forthcoming). Available at SSRN:

“This Article argues that, even though a carbon tax remains politically elusive, “carbon taxation by regulation” has begun to flourish as a way of financing carbon reduction. For more than a century, energy rate setting has been used to promote public good and redistributive goals, akin to general financial taxation. Various non-tax subsidies in customer energy rates have enormous untapped potential for promoting low-carbon sources of energy, while also balancing broader economic and social welfare goals. While carbon taxation by regulation offers many benefits, regulators’ narrow fixation on consumer protection and economic goals has hobbled realization of its potential. In comparison to a national carbon tax, customer subsidies in regulation are piecemeal, isolated in focus, and fragmented. They also have not been sufficiently attentive to revenue shortfalls and burden allocation, important fairness and equity issues, or negative and positive jurisdictional spillovers. Using a carbon tax as a benchmark, this Article identifies some principles to help guide efforts to reform, recalibrate and scale up customer rate subsidies to promote low-carbon sources of energy. State and federal agencies can better promote efficiency and social welfare in modern energy markets by aligning customer rate subsidies with the same principles that would inform optimal design of a carbon tax.”

Categories: Research

Banking Standards Board Statement of Good Practice

beSpacific - Tue, 03/21/2017 - 19:14

“The Banking Standards Board has today (Tuesday 28 February 2017) published good practice guidance for banks and building societies putting in place procedures to assess the fitness and propriety of staff under the new Certification Regime. Download the Statement of Good Practice 1 on the Certification Regime: Fitness and Propriety Assessment Principles  and Supporting Guidance to Statement of Good Practice 1 on the Certification Regime: Definitions, Sources of Information and Assessment Record Template.

Recognising the opportunity presented by the new regime to help to promote professionalism across the banking sector, the BSB set up a member firm working group2 to share experiences and facilitate the identification of good practice to help to achieve a fair and effective implementation. The working group met regularly throughout 2016, and following a three-month consultation process, the BSB is now publishing two documents: a Statement of Good Practice on the assessment of fitness and propriety within the Certification Regime, and more detailed Supporting Guidance on implementation. The published documents consist of:

BSB Statement of Good Practice – Fitness & Propriety Assessment Principles

This takes the form of a high-level set of principles surrounding the assessment of fitness and propriety and is designed to encourage and help firms to use the Certification Regime as a means to raise professional standards and ensure that F&P assessments are fair, consistent and transparent.

BSB Supporting Guidance

This is practical guidance, which represents a pooling of knowledge and experience by BSB member firms from which the whole industry can learn. It contains;

  • comprehensive definitions of each element of F&P; honesty and integrity, reputation, competence and capability, and financial soundness
  • potential sources of information that could be taken into account when carrying out the assessments
  • example assessment record template to support consistent recording of the outcome of F&P decisions across firms.”
Categories: Research

Banking agencies issue joint report to Congress under Economic Growth and Regulatory Paperwork Reduction Act of 1996

beSpacific - Tue, 03/21/2017 - 18:59

“Continuing their efforts to reduce regulatory burdens while ensuring the safety and soundness of the nation’s financial institutions, member agencies of the Federal Financial Institutions Examination Council (FFIEC) today issued a joint report to Congress detailing their review of rules affecting financial institutions. The review was conducted as part of the Economic Growth and Regulatory Paperwork Reduction Act of 1996 by the Board of Governors of the Federal Reserve System, the Office of the Comptroller of the Currency, and the Federal Deposit Insurance Corporation, and in conjunction with the National Credit Union Administration. EGRPRA requires the federal banking agencies, along with the FFIEC, to conduct a review of their rules at least every 10 years to identify outdated or unnecessary regulations. While NCUA is not required to participate in the EGRPRA review, the agency’s Board chose to participate to enhance its own regulatory review process. In particular, the agencies’ review focused on the effect of regulations on smaller institutions, such as community banks and savings associations. The federal banking agencies published four requests for written comment in the Federal Register and hosted six public outreach meetings across the country. NCUA, which regulates credit unions, routinely conducts town-hall meetings, listening sessions, and other outreach activities to hear and discuss stakeholders’ views. Altogether, the agencies received more than 250 comment letters from financial institutions, trade associations, and consumer and community groups, as well as numerous comments obtained at the outreach meetings.

The report describes several joint actions planned or taken by the federal financial institutions regulators, including:

Simplifying regulatory capital rules for community banks and savings associations;
Streamlining reports of condition and income (Call Reports);
Increasing the appraisal threshold for commercial real estate loans; and
Expanding the number of institutions eligible for less frequent examination cycles.

The report also describes the individual actions taken by each agency to update its own rules, eliminate unnecessary requirements, and streamline supervisory procedures. The federal financial institutions regulators will continue their efforts to tailor regulations to the size and risks posed by financial institutions while ensuring the safety and soundness of the nation’s financial institutions and banking system.

Joint Report to Congress: Economic Growth and Regulatory Paperwork Reduction Act (PDF)”

Categories: Research

Collective Wisdom: An Exploration of Library, Archives and Museum Cultures

beSpacific - Tue, 03/21/2017 - 18:52

Collective Wisdom: An Exploration of Library, Archives and Museum Cultures was written by the participants in the Library, Archives and Museum Conference Exchange project, in which 18 librarians, archivists and museum professionals explored cross-sector practices and culture, and potential for interdisciplinary collaboration and http://Collective Wisdom: An Exploration of Library, Archives and Museum Cultures was written by the participants in the Library, Archives and Museum Conference Exchange project, in which 18 librarians, archivists and museum professionals explored cross-sector practices and culture, and potential for interdisciplinary collaboration and continuing education. This project was part of the grant-funded and OCLC-managed Coalition to Advance Learning. The cohort was charged to 1) Build stronger cross-sector relationships; 2) Increase understanding of sector cultures; and 3) Identify opportunities for collaborative continuing education or professional development. The white paper summarizes their in-depth efforts in each of these three areas.

Highlights: Participants identified concerns that cut across all three professions, which include preservation and conservation; diversity, equity and inclusion; employment and workplace practices; sustainability (financial and environmental); and the need to become better advocates for ourselves as individuals, institutions, sectors and collectively across these sectors in order to secure needed resources and articulate our public value. Participants examined opportunities for cross-sector collaboration, including graduate programs in library and information science and museum studies and smaller shared interest groups organized regionally across sectors.”

Categories: Research

Burglars Can Easily Make Google Nest Security Cameras Stop Recording

Slashdot: Your Rights Online - Tue, 03/21/2017 - 18:40
Orome1 quotes a report from Help Net Security: Google Nest's Dropcam, Dropcam Pro, Nest Cam Outdoor and Nest Cam Indoor security cameras can be easily disabled by an attacker that's in their Bluetooth range. The vulnerabilities are present in the latest firmware version running on the devices (v5.2.1). They were discovered by researcher Jason Doyle last fall, and their existence responsibly disclosed to Google, but have still not been patched. The first two flaws can be triggered and lead to a buffer overflow condition if the attacker sends to the camera a too-long Wi-Fi SSID parameter or a long encrypted password parameter, respectively. Triggering one of these flaws will make the devices crash and reboot. The third flaw is a bit more serious, as it allows the attacker to force the camera to temporarily disconnect from the wireless network to which it is connected by supplying it a new SSID to connect to. If that particular SSID does not exist, the camera drops its attempt to associate with it and return to the original Wi-Fi network, but the whole process can last from 60 to 90 seconds, during which the camera won't be recording. Nest has apparently already prepared a patch but hasn't pushed it out yet. (It should be rolling out "in the coming days.")

Read more of this story at Slashdot.

Categories: Research

Live blog of confirmation hearing (Day Two) (Update: Completed)

SCOTUS Blog - Tue, 03/21/2017 - 18:16

We live-blogged the second day of the Senate Judiciary Committee’s hearing on the nomination of Judge Neil Gorsuch to the Supreme Court. The transcript is available at this link.

The post Live blog of confirmation hearing (Day Two) (Update: Completed) appeared first on SCOTUSblog.

Categories: Research

Argument analysis: Justices skeptical of categorical “exhaustion” of patent rights

SCOTUS Blog - Tue, 03/21/2017 - 17:43

For a court that has heard so many crucial intellectual property cases over the last several years, October Term 2016 is remarkable in that it was not until this morning that the court heard an intellectual property case that has the potential to be a “major” decision. But they faced a case of potentially momentous importance for modern commerce when they heard argument in Impression Products, Inc. v Lexmark Int’l, Inc.  Unfortunately, I don’t think many people left the courtroom knowing much more about the case than they did when they entered. Perhaps the justices wore themselves out with so much incisive questioning in the morning’s first argument (Microsoft v. Baker), but this argument was much more like the Monday argument in Howell v. Howell on which Amy Howe reported here: a cold bench largely leaving the advocates to their own devices.

The case involves the doctrine of “exhaustion,” under which a patentholder’s rights to enforce its patent ordinarily are “exhausted” with regard to any particular object at the moment the patentholder sells the object. As applied to this case, for example, Lexmark’s rights to control the use of its patented refillable print cartridges would be “exhausted” when it sells those cartridges to retail buyers, even if Lexmark conditions the sale on the promise that the buyer will not refill the cartridge. That, at any rate, is the argument of Impression Products, which makes a business out of refilling Lexmark cartridges in violation of those agreements. Lexmark’s argument, by contrast, is that modern commerce requires that innovators have the flexibility to devise contracting structures that segment the market into separate sectors, each of which gets a different price commensurate with the uses to which products will be put in that sector.

The terrain of the case is complex. There is a recent case (Kirtsaeng v John Wiley & Sons, Inc.,) in which the justices adopted a broad rule of exhaustion under copyright law, but that case affords little guidance because the Copyright Act, unlike the Patent Act, codifies the exhaustion doctrine. Justice Anthony Kennedy seized on that distinction early, asking Andrew Pincus, counsel for the defendant Impression Products, “[w]hy hasn’t this been codified? …. Too busy or what? …. Did the failure to codify mean we should be somewhat cautious in extending … or in interpreting [it]?”

It says something about the ill-defined nature of the problems before the court that the parties can’t even agree on the basis for the exhaustion doctrine. For his part, Pincus argued that the exhaustion doctrine rests on common-law rules that are hostile to restraints on alienation. Conversely, Malcolm Stewart, appearing on behalf of the U.S. solicitor general in support of Impression Products, argued that the doctrine was an interpretation of the exclusive rights granted to inventors by the Patent Act, a view shared by Constantine Trela, who argued on behalf of the patentholder, Lexmark.

Although counsel spent a great deal of the argument in largely uninterrupted presentations about the best way to read a large group of old cases examining contractual restraints in the patent area – no surprise that both sides believe the cases support them – most of the justices’ relatively sparse interjections involved more practical problems. Justice Sonia Sotomayor, for example, seemed impressed by what Pincus had to say about the cases, but moments before the end of his argument, stopped him to comment that “there are serious issues about this rule and its consequences,” and to ask him “[h]ow do you address all the negative consequences that your rule appears to be creating?” In the same vein, Justice Samuel Alito commented to Pincus: “The Federal Circuit’s rule on this is 25 years old. Has it caused a lot of problems?”

Chief Justice John Roberts and Justice Stephen Breyer also probed repeatedly as to why the patentholders like Lexmark cannot rely solely on contract law, but instead need patent law to enforce these restrictions. Roberts, for example, asked “Why is normal contract law and normal State law inadequate, for your purposes?” After listening to a few minutes of Trela’s response , Breyer asked “[w]hy can’t you enforce the contract downstream?” And when Trela explained that Lexmark (and other licensors) would lack privity with downstream purchasers, Breyer pressed yet again: “Then why don’t you require the person who sells it to just resell it with the requirement that they promise [to comply].”

In my judgment, the argument had only three significant revealing moments. In one of them, Breyer displayed an apparently visceral perspective that the kinds of provisions that Lexmark wants to impose should be routinely condemnable:

[A]ny monopolist, including a patent monopolist, would love to be able to go to each buyer separately and extract from each buyer and user the maximum amount he would pay for that particular item. …. But by and large, that’s forbidden under many laws, even though it does mean slightly restricted output, and it also means a lower profit for the monopolist.

That is not the comment of somebody predisposed to accept the idea that the realities of 21st-century commerce require updating of traditional restrictions on commercial contracting.

The other two moments involved the international aspect of the case: whether an overseas sale exhausts rights under the United States patent. On that topic, Alito and Breyer were deeply skeptical of Pincus’ argument. Alito was the more forceful:

[I]t’s somewhat surprising to me that none of the briefs in this case talk about our cases regarding extraterritoriality. In recent years, we’ve … said … that a statute does not apply outside the United States unless it says that it applies outside the United States. I don’t see why that shouldn’t be the same for a common-law rule like the rule here. And if what’s involved here is the application of U.S. patent law abroad, where is the clear statement that the exhaustion rule applies outside of the borders of the United States? I … don’t see where that can be found.

Alito hardly does the briefs justice; amicus briefs for IBM and Qualcomm, for example, included extended sections emphasizing the court’s precedents counseling against extraterritorial application of domestic statutes.

Breyer took a different tack, but reached a similar point, as he discussed the consequences of a hypothetical sale in Germany by an American holder of multiple patents on a single invention:

[T]hey have received money for that first sale under, let’s say, a German patent, and they have not received any money on this American patent. So they say, well, how could you be subjecting us to a rule that that first sale exhausted our right to money under the American patent when we never received any money under the American patent?”

My take on this is that the justices are well aware of the major implications here and don’t see any obvious way to avoid doing something that will have real economic consequences. None of the parties suggested any obvious narrowing strategy that would allow the justices to limit their decision. Rather, it seems, they are going to have to decide if these kinds of restrictions will, or will not, remain a product of 21st-century innovation policy. About the most to be gleaned from the argument is that Impression Products might have a harder time on the international point than it will on the domestic one. I would not count on hearing anything more about this case until June.

The post Argument analysis: Justices skeptical of categorical “exhaustion” of patent rights appeared first on SCOTUSblog.

Categories: Research

Trump Adds To NASA Budget, Approves Crewed Mission To Mars

Slashdot: Your Rights Online - Tue, 03/21/2017 - 17:20
An anonymous reader quotes a report from NBC News: President Donald Trump signed a law on Tuesday authorizing funding for a crewed NASA mission to Mars. The new bill (S.442) adds a crewed mission to the red planet as a key NASA objective and authorizes the space agency to direct test human space flight programs that will enable more crewed exploration in deep space. The space agency has $19.5 billion in funding for the 2018 fiscal year, which starts this October. Trump had allocated $19.1 billion for NASA in his budget, which is slightly down from the current year, but still an improvement from the past decade, which saw the end of the space shuttle program. The commander in chief signed the bill surrounded by astronauts and his former Republican rivals, Senator Ted Cruz of Texas and Senator Marco Rubio of Florida, who both sponsored the bill. Getting to Mars, though, isn't expected to happen during the Trump presidency. NASA has its sights set on getting to the red planet in the 2030s. In the near term, NASA plans to test its Orion spacecraft and Space Launch System rocket, in addition to visiting an asteroid and redirecting a chunk of it into orbit around the moon. Astronauts could later visit the boulder and use the mission to test some of the tools needed for a Mars mission.

Read more of this story at Slashdot.

Categories: Research

Afternoon round-up: Day two of Judge Gorsuch’s confirmation hearing

SCOTUS Blog - Tue, 03/21/2017 - 17:04

Today the Senate Judiciary Committee held the second day of its hearing on the nomination of Judge Neil Gorsuch to the Supreme Court. Early coverage of today’s proceedings, which featured round one of the senators’ questioning, comes from Nina Totenberg of NPR, who is also commenting live here, Matt Flegenheimer, Adam Liptak, Carl Hulse and Charlie Savage of The New York Times, Lawrence Hurley and Andrew Chung of Reuters, Greg Stohr and Laura Litvan of Bloomberg, Ed O’Keefe, Robert Barnes and Sean Sullivan of The Washington Post, Erica Werner and Mark Sherman of the Associated Press, as well as Jeff Donn, Andrew Rafferty of NBC News, Alexander Bolton and Lydia Wheeler of The Hill, Richard Wolf of USA Today, Zoe Tillman of Buzzfeed, Seung Min Kim and Josh Gerstein of Politico, Debra Cassens Weiss of ABA Journal, Matt Ford of The Atlantic, Ian Hanchett of Breitbart, Tierney Sneed of Talking Points Memo, as well as Esme Cribb, Judson Berger of Fox News, and Ashley Killough and Ariane de Vogue of CNN.

Commentary comes from Garrett Epps for The Atlantic, J. Bishop Grenwell for the National Review, Emily Martin for U.S. News, Ilya Shapiro for the Washington Examiner, Jay Wexler for McSweeney’s, Erwin Chemerinsky for NY Daily News, Jed Handelsman Shugerman for Slate, as well as Mark Joseph Stern, who has a separate post here, Christina Cauterucci, and Dahlia Lithwick. Additional commentary comes from Allegra Chapman for U.S. News, Sarah Posner for The Washington Post, Marjorie Cohn for Truthout, Todd A. Cox for Medium, Brady Zadrozny for The Daily Beast, Rick Pildes for Balkinization, Corey Brettschneider for The New York Times, Paul Kane for The Washington Post, Paul Callan of CNN,  Emily Crockett of Vox, as well as Sean Illing, Steven Ertelt of LifeNews, and Ian Millhiser of ThinkProgress.

The post Afternoon round-up: Day two of Judge Gorsuch’s confirmation hearing appeared first on SCOTUSblog.

Categories: Research

Argument analysis: Justices dubious about free review of decisions denying class certification

SCOTUS Blog - Tue, 03/21/2017 - 16:22

This morning’s long-delayed oral argument in Microsoft v. Baker finally gave Microsoft its “day in court,” more than two years after the U.S. Court of Appeals for the 9th Circuit decision under review, and almost four-and-a-half years after the district court decision. Although it is a big patent day at the Supreme Court – with the decision in SCA Hygiene and the argument in Impression Products v. Lexmark – the Microsoft matter is a civil procedure case, examining the options available for plaintiffs when a district court determines that a case is not suited for adjudication as a class action.

Traditionally, the authority of the federal courts of appeal is limited to reviewing “final” decisions of a district court. Because the claims of individual plaintiffs survive even when a district court refuses to certify a case for adjudication as a class, the decision denying certification ordinarily does not produce a final order suitable for immediate review on appeal. The problem that plaintiffs face, though, is that adjudication of the individual claims often makes no sense without class relief; the costs and fees associated with a trial typically dwarf the possible recovery from any particular individual’s claim. Accordingly, plaintiffs often want to appeal immediately when a district court rejects the availability of class relief.

A common strategy in recent years for plaintiffs facing that problem has been for the named plaintiffs to voluntarily dismiss their individual claims. Although the dismissal is only conditional (the plaintiffs expect to press those claims again if they can persuade the court of appeals that class-based relief is appropriate), the 9th Circuit has concluded that the tactic produces the final decision that plaintiffs need in order to obtain immediate appellate review. This case puts that strategy squarely before the court and the justices seemed deeply skeptical.

You knew things were going well for Microsoft when the justices gave Jeff Fisher, representing the company, free rein to lay out his rejection of the plaintiffs’ position with a simple “damned if they do, damned if they don’t” argument. If the decision is final, then the plaintiffs have no remaining claims and thus there is no Article III “case” for further adjudication. Conversely, if the courts take seriously the idea that the plaintiffs can revive a claim that they have voluntarily dismissed, then the decision is not really final, and so it does not yet qualify for appellate review.

To the extent they addressed it, most of the justices seemed to take the first approach. The general sentiment was that the 9th Circuit made a serious misstep when it adopted the underlying doctrine, as the justices could not see any reason why a plaintiff should be able to appeal a district court judgment that he or she asked the district court to enter. Early on, for example, Justice Sonia Sotomayor, remembering her days on the district court bench, commented that “I haven’t been able to imagine a situation in which a case is dismissed with prejudice, but where there may be some issues that should survive.”

The questioning grew particularly heated when Peter Stris, arguing for the plaintiffs, came to the podium in defense of the tactic. Justice Elena Kagan, for example, asked with incredulity whether “this [is] a procedure that’s used in the Ninth Circuit? … Why did people think that this was the governing law?” Similarly, Chief Justice John Roberts exclaimed: “It’s one thing … if you’ve got a judgment against you and you have arguments why it shouldn’t have been. But you told the district court to enter a judgment against you, so you can’t argue that it shouldn’t have done that.”

Another major problem Stris faced is the history leading up to Federal Rule of Civil Procedure 23(f). In the 1960’s a practice had developed under which plaintiffs had a relatively free hand to appeal decisions denying class certification, on the theory that though not technically final, those decisions were effectively the “death knell” of the class litigation. The Supreme Court’s 1978 decision in Coopers & Lybrand v. Livesay rejected that idea, ushering in an era when plaintiffs had no avenue for immediate appeal of an adverse certification decision.

After deliberation, though, the rules committee amended rule 23, adding a new paragraph 23(f), which permits those appeals, but only with the permission of the court of appeals. (The plaintiffs tried that process in this case, but the court of appeals refused to grant permission.) Justice Ruth Bader Ginsburg seemed particularly dubious about the tension between the plaintiffs’ strategy and rule 23(f): “The rule makers went through a lot of work to figure out what to do with an interlocutory ruling on class action status.  And it came up with 23(f). And this device seems to be just a way to get around 23(f).” As she commented at one point, under the plaintiff’s strategy “23(f) is out the window.”

The low point of the argument for Stris came when Justice Stephen Breyer repeated the bifurcated syllogism from Fisher’s argument in its entirety: “So you’re in a dilemma.  If you say I condition my dismissal upon my later appealing, you run into our case … which says then the judgment isn’t final. But if you don’t reserve something, you’re in the box you’re in right now and the case is over.” For him, as for Ginsburg, the “conditional voluntary dismissal” strategy seemed at best a feeble effort to avoid the obvious import of rule 23(f).

This is one of those arguments in which the justices leave little doubt about the ultimate outcome. Even in the absence of Justice Antonin Scalia, this is a bench with several jurists deeply worried about the excesses of class-action litigation. And on that bench it is fair to say that Breyer, Ginsburg, Kagan and Sotomayor are the least hostile to class actions. It is hard to imagine, after hearing such harsh criticism of the plaintiffs’ position from those four justices, that the class action plaintiffs have any realistic hope of prevailing. In the end, then, a prompt and all-but-unanimous reversal of the 9th Circuit is the likely outcome here.

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Categories: Research

Opinion analysis: The Fourth Amendment governs unlawful pretrial detention claims even after legal process begins; everything else is remanded

SCOTUS Blog - Tue, 03/21/2017 - 16:15

In the year since Justice Antonin Scalia died, the eight-justice court has repeatedly decided only issues that they can agree on, and has frequently remanded more difficult questions for future resolution. Unsurprisingly (see my post-argument analysis), that pattern held true in today’s decision in Manuel v. City of Joliet. A 6-2 majority ruled that the Fourth Amendment is the proper basis on which to challenge a post-arrest detention that was continued for seven weeks, allegedly without probable cause. Beyond that, Justice Elena Kagan’s opinion “le[ft] all other issues” for remand, over Justice Samuel Alito’s and Clarence Thomas’ dissents.

Taking the complaint as true

Elijah Manuel alleged that an officer pulled him from a car, beat him, called him racial slurs, and then arrested him for drugs even though a field test on pills Manuel was carrying came back negative. He further alleged that an evidence technician at the police station conducted another test on the pills that also came back negative, but that the technician falsely stated that the test was positive. Another officer then swore out a complaint against Manuel; based on all these false statements, a county judge ordered Manuel to be detained. Manuel was not released until seven weeks later, after a state police lab reported that the pills contained no controlled substances and “for unknown reasons,” the state prosecutor waited a month to move for dismissal. Two years later, Manuel sued the City of Joliet and its officers for violation of his civil rights under 42 U.S.C. §1983, alleging two Fourth Amendment violations: his false arrest and his prolonged unlawful post-arrest detention.

The district court dismissed Manuel’s challenge to his arrest under the applicable two-year statute of limitations, because Manuel’s lawsuit had been filed more than two years after the date of his arrest (although within two years of his release from detention). As for the detention, the district court relied on circuit precedent to rule that a detention occurring after “lawful process” is instituted (here, the county judge’s detention order) could be challenged only under the due process clause, not the Fourth Amendment. The U.S. Court of Appeals for the 7th Circuit affirmed.

The Fourth Amendment question answered by the court

Today’s holding is clear: An unlawful “pretrial detention can violate the Fourth Amendment not only when it precedes, but also when it follows, the start of legal process in a criminal case.” Despite stray suggestions by lone justices in some prior cases, such a pretrial detention claim “fits the Fourth Amendment … as hand in glove.” When some formal “legal process” has gone forward based on, as was alleged here, false law enforcement statements, that process “has done nothing to satisfy the Fourth Amendment’s probable cause requirement.” The Fourth Amendment, and not the due process clause, “provides the appropriate lens through which to view [such] a claim.”

Remaining questions not answered

Justice Kagan’s crisp opinion acknowledges that it “addresses only the threshold inquiry,” and notes that determinations of “the elements of, and rules associated with, an action seeking damages” for an unlawful-pretrial-detention action still must be made. Specifically here, the question whether the Fourth Amendment action “accrues” on the day the detention started, or does not accrue until the detention ends, remains (although the majority does provide an end-point, saying in a footnote that for an unlawful pre-trial detention claim, “once a trial has occurred, the Fourth Amendment drops out”). After offering “brief comments” regarding the general relationship of state common law rules and remedies to federal civil rights actions, the court remanded on any remaining issues, repeating a familiar point: “[w]e are a court of review, not of first view.”

Here is the court’s general guidance: Federal courts reviewing claims under Section 1983, when not bound by federal law, should “look first to the common law of torts.” But such common law is “meant to guide, rather than to control,” federal actions, “more as a source of inspired examples than of prefabricated components” (quoting Hartman, 2006).  Federal courts can apply, select among, or adjust common-law approaches, and “must closely attend to the values and purposes of the constitutional right at issue.”

Justices Alito and Thomas dissent, but not from the narrow holding

Justice Samuel Alito’s dissent, joined by Justice Clarence Thomas, begins: “I agree with the Court’s holding …: The protection provided by the Fourth Amendment continues to apply after ‘the start of legal process.’” That much, then, is unanimous. Alito disagrees, however, with any further suggestion that “new Fourth Amendment claims continue to accrue as long as pretrial detention lasts.”  He says this would “stretch[] the concept of a seizure much too far.” Similarly, Manuel should not receive the benefit of a “favorable termination” accrual rule, because that rule applies only to common-law “malicious prosecution” claims, and those sorts of claims are not Fourth Amendment claims in Alito’s view.

Alito argues instead that a Fourth Amendment violation is “fully accomplished … when an impermissible seizure [first] occurs” – so that the two-year limitations period would have run in this case. (On this narrow point Thomas filed a separate two-paragraph dissent, saying that although he agrees generally with Alito, he would leave the precise moment of accrual open for a case in which it actually matters.) Alito’s “first seized” accrual theory would conflict with a contrary “continuing violation” theory that has previously been advanced by Justice Ginsburg — a disagreement that the majority today assiduously avoids resolving.

Finally, Alito criticizes the majority for not considering every issue included in the “Question Presented” that Manuel asked the court to review. Kagan responds in footnote 10 that “we have resolved” the primary issue presented, and the fact that “Manuel jumped the gun” on further issues “provides no warrant” for “our doing so too.”


Although Alito also claims that the court’s opinion “inject[s] much confusion” and will “dramatically expand[] Fourth Amendment liability,” the Fourth Amendment ruling that the majority does announce – that the Fourth Amendment, and not the due process clause, governs a claim of unlawful pretrial detention – was the same answer given previously by ten other federal appellate courts. It seems narrow enough to give lower courts guidance while not unnecessarily resolving further points that were not well-presented, or well-argued, here.

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Categories: Research

Argument transcripts

SCOTUS Blog - Tue, 03/21/2017 - 14:17

The transcript in Microsoft Corp. v. Baker is here; the transcript in Impression Products, Inc. v. Lexmark International, Inc. is here.

The post Argument transcripts appeared first on SCOTUSblog.

Categories: Research