Friday, October 11, 2013

Government Shutdown Effect on Patent Law

Patently-O has a posting on the effect of the government shutdown on patent law practice at Government Shutdown & Patent Law Practice.

Diane P. Wood: Should the Federal Circuit’s Exclusive Patent Jurisdiction Be Abolished?

Judge Diane P. Wood in a keynote address asked:

Is It Time to Abolish the Federal Circuit’s Exclusive Jurisdiction in Patent Cases?.


Extremist Shutdown Puts Human Lives at Stake

See Lasting damage at normblog.

Clicking "Like" on Facebook is Speech Under the First Amendment of the U.S. Constitution

See the New Media and Technology Law Blog
The First Amendment Goes Digital - Clicking "Like" on Facebook is Speech.

Can Official Seals, Flags, Coats of Arms or Insignia of Government Bodies be Registered as Trademarks?

The answer may surprise you.

See the LIKELIHOOD OF CONFUSION® at Signed, sealed and delivered.

Android Tip: Clear Cached App Data At Once

From Lifehacker, Clear All Cached App Data At Once on Android.

The Other Side of Judging: Something to Remember When Reading a Holmes Opinion

The Legal History blog has a great anecdote about Oliver Wendell Holmes, Jr. at Something Else to Remember When Reading a Holmes Opinion.

In the previous posting, we saw that Breyer writes for ALL to understand.

Holmes wrote for "that man". Read the anecdote to find out which.

Do both approaches make sense, and how?
Is there room for both?
Must there be room for both?

For example, we write for "that man" too.

Why would anyone do that?

Some Tips on Judging, Legal Writing and Words of Wisdom from a 'Cranky' Federal Judge

Laurel Newby has an entertaining posting at
Legal Blog Watch
Use Hyperlinks, Don't 'Bitch-Slap' -- and Other Tips from a 'Cranky' Federal Judge.

Sorry about that jargon. I think that we used to call that a slap in the face.

Of value there was this about legal writing:
"Justice Scalia writes smack. You can't. Justice Kennedy waxes grand eloquent. You can't. Justice Breyer writes simply. You should."
That link to Breyer at the New York Times is informative, and Justice Breyer is quoted as follows regarding legal writing and Justice Goldberg [who was at Paul, Weiss et al. shortly in my days at the firm]:
"Justice Goldberg was very pleased about my being appointed to the Court of Appeals and he said, "Don't use footnotes," and somewhere quite soon after becoming a judge I did stop using footnotes.

Sometimes it's awkward to use none at all, but if in fact you even use one, then you cannot make the point. And it is an important point to make if you believe, as I do, that the major function of an opinion is to explain to the audience of readers why it is that the Court has reached that decision.

It's not to prove that you're right: you can't prove you're right, there is no such proof. And it's not to create an authoritative law review on the subject. Others are better doing that than I.

It is to explain as clearly as possible and as simply as possible what the reasons are for reaching this decision. Others can then say those are good reasons or those are bad reasons. If you see the opinion in this way, either a point is sufficiently significant to make, in which case it should be in the text, or it is not, in which case, don't make it."
That is good advice for all judges and for most legal writing.

Clarity and Conciseness.

It is one reason that Justice Breyer is probably the best "judge" on the Supreme Court, even if his approach is sometimes too "simplistic" for some.

FactCheck Looks into False Obamacare Claims by Ted Cruz

Fast Check has looked into false claims about the Affordable Care Act by Ted Cruz at FactChecking ‘Pernicious’ Obamacare Claims. In fairness, Fast Check also points out errors in statements by President Obama, but the fact-twisting is much greater by Cruz, especially on essential points.

We live in Germany and can say that Cruz has a completely flawed understanding of national health care and misrepresents totally the benefit that it brings to society. Our health care in Germany is far superior to that in the USA and costs much less. Health is not a "capitalistic" item.

Cruz has no clear idea of what socialism is and what the difference between socialism and socialized risk are and there is a very big difference.

ALL insurance is socialized risk, also private insurance,
i.e. it is a "socialized" pooling of resources.

Actuaries can accurately predict how many people in a given population will get a certain disease in a given year, but can not tell who. Insurance spreads the risk. People pool their resources and those getting the disease are taken care of out of those resources.  Everyone should be in the pool.

Calling that socialism is beyond idiotic.

Cruz should explain why health insurance executives rake in hundreds of millions of dollars a year, driving up the cost of health care for doing what any talented high school mathematician could do for normal wages, and probably do it better.

Balkinization on the Debt Ceiling Crisis and the President's Options

See JB at Balkinization at Sean Wilentz on the Debt Ceiling Crisis: Imprudent Advice, focusing on the President's options in case the House does not raise the debt ceiling.

He correctly notes that there is a lot of political wisdom for Obama to take no rash actions and leave the onus of responsibility on House Republicans, who will continue to take a beating as long as the shutdown farce continues.

A strong President, in my opinion, on the other hand, might consider rounding up the extremist "Gang of 40"
  • on the political justification that they were engaged in a coup d'etat
One might then consider putting them into chains for a few days in a federal prison lacking food, water and staff due to the shutdown, in order to let them experience for those few days the fear that people without health insurance experience when they are faced with life-threatening medical conditions for which they have no money and no insurance coverage under the system that the House extremists want to restore in conspiring to deny those very same citizens affordable health care, as granted to them by law.

In the interim, the members of the remaining House could and should do what needs to be done to get the government going again.

Update 1: Let me affirm, of course, that these are merely extreme solutions that the President could consider in the face of a government meltdown.

Update 2: In the interest of mercy, one could of course staff those prisons with people now suffering hardships because they are not getting their paychecks and are unable to pay their bills and may be wondering down the road how they shall eat or put a roof over their head. Surely they would treat the Gang of 40 at least as good as they have been treated by them, although it is unlikely they would dispense soft pillows and coverlets for sleeping or prepare the kind of gourmet meals that a Congressional salary enables.

Economic Recovery in Latvia as a Model for Other Nations?

What are the essential elements for economic recovery?

This is a question that can be asked regarding the arguably complete economic recovery in Latvia over the last 3 years.

A Fistful of Euros in fact asks:

As Good As It Gets In Latvia?


Economics Nobel Prize Winner Becker and Most Cited Jurist Judge Posner on the Debt Ceiling as A WASTE OF TIME

Both Gary S. Becker (Nobel Prize winner, Economics, 1992) and Richard D. Posner (probably the world's most cited modern jurist and judge) at the The Becker-Posner Blog have postings about the debt ceiling.

It is remarkable that people in Congress and elsewhere do not look to brilliant heavyweight minds such as these for legal and economic guidance, rather than to lightweight extremist demagogues in their midst.

Becker writes, inter alia:
"Conservatives who have supported a debt ceiling to reduce deficits are really usually mainly concerned about the size of government. However, government size depends not on deficits, but rather fundamentally on the level of government spending. Since deficits can be reduced either by cutting spending or raising taxes, both liberals and conservatives can agree on the value of reducing deficits while strongly disagreeing on how to reduce them. Liberals want to raise taxes to cut deficits, while conservatives want to limit many kinds of government spending in order to reduce the size of the government.

To the extent that debt ceilings mainly induce tax increases to slow the growth in debt, a focus on debt ceilings and deficits does not help rein in the size of government. Moreover, the substantial growth in federal spending during the past 50 years under both Democratic and Republican control of Congress and the presidency strongly suggests that the many debt ceilings during this period did little to reduce the size of government. The numerous deficits over this period even suggest that the ceiling has accomplished little, if anything, in reducing deficits.

For those worried about the growth of government, there is no substitute for a focus on the scale of government spending. Having debt ceilings may not be completely innocuous because they may detract from that focus."
Posner writes, inter alia:
"So a debt ceiling is unlikely to reduce the size of government. But it is pernicious, in inviting political tactics that could well be thought to violate the Constitution, or at least the spirit of the Constitution. Republicans want to destroy, or in the short run greatly weaken, Obama’s health care law (“Obamacare”), even though it resembles a health care reform proposed by President Nixon and successfully championed by Mitt Romney when he was governor of Massachusetts. The Republican preoccupation with Obamacare is thus rather surprising, but may reflect a fear that when once Obamacare is debugged and up and running it will prove popular, which will boost the Democrats. Yet the Republicans are not in a position to repeal or even amend the law by constitutionally authorized means, because repeal or amendment would require a majority vote in both houses of Congress (actually a two-thirds vote in both houses, for given a lesser majority Obama could veto a repeal or amendment without fear of being overridden). The intention, which is contrary to the structure of the federal legislative process ordained by the Constitution, is to coerce Congress to repeal (or by amendments to defang) Obamacare by threatening to precipitate an economic crisis by refusing to vote for an increase in the debt ceiling. If the tactic succeeded, it would mean that a minority in Congress had succeeded in amending a federal statute."
So, essentially, they agree. Using the debt ceiling to try to reduce the size of government is a waste of time. A WASTE OF TIME.

Of course, the minority in Congress has no chance of winning, so that the entire farce of the Republican extremist led extortion-based government shutdown is either simply political "posturing", which has backfired against them, or worse, intentional destabilization of the government, for which those responsible should be criminally punished for "conspiring against rights" outside of their normal and legal House duties, which could then be regarded as a criminal violation of 18 USC § 241 - Conspiracy Against Rights.

Latvian Legal News: Dual Citizenship Recognized in Some Circumstances in Latvia Pursuant to Citizenship Law Amendments Effective October 1, 2013

Amendments to the Citizenship Law of the Republic of Latvia have now made it officially possible under given circumstances for emigrated Latvian "nationals" or their descendants to obtain dual citizenship.

Previously, there was a requirement that a previously existing citizenship in another country had to be relinquished to obtain Latvian citizenship.

See the details at News in Assistance obtaining dual citizenship in Latvia.

Law and Courts in Russia: Supreme Arbitration Court (VAS) proposed to be merged with the Russian Supreme Court

President Putin has proposed to merge the Russian Supreme Arbitration Court with the Russian Supreme Court, thus making the judicial system consolidated at the top in one supreme court.

See Putin's Legal Vertical: Kremlin Seeks To Consolidate Court System

Conflicting court decisions by the two courts are given as the rationale for the consolidation. Putin is quoted as saying:
"People take a dispute before courts of general jurisdiction and then the side that is unsatisfied with the ruling appeals with the same question to the arbitration system and receives the opposite ruling."
That reasoning is understandable enough, without attaching speculative political significance to the development, which may, or may not, bear upon the question.

Privacy Settings in Facebook: Tips to Counter the Newest Facebook Privacy Infringements

Here are useful tips for your Facebook Privacy Settings in view of the most recent and continuing Facebook privacy infringements:

See ReadWrite at:

Facebook Just Killed A Privacy Setting, So It's A Good Time To Do Your Own Checkup.

See The Telegraph at:

11 ways to protect your privacy on Facebook
Facebook is making it harder to hide by removing a feature that prevents your profile from appearing on searches. Here we look at how else you can maintain your privacy.

We continue to be amazed that the law has not clamped down heavily on these blatant Facebook privacy infringements, which are being introduced in order for Facebook to make more and more money through advertising by data mining private materials that were never intended for mass public availability.

Law Professors: House Extortionist Debt Ceiling Crisis Poses Presidential Dilemma of Only Three Options, All Unconstitutional: They Suggest Taking the Road "Least Unconstitutional"

Section 4 of the 14th Amendment to the U.S. Constitution provides:
"The validity of the public debt of the United States, authorized by law, including debts incurred for payment of pensions and bounties for services in suppressing insurrection or rebellion, shall not be questioned."
Several law professors have recently analyzed the Constitutional aspects of the debt ceiling crisis.

See As Debt-Ceiling Crisis Looms, Dorf and Buchanan Urge the President to Take the "Least Unconstitutional" Option.

In our view, the House of Representatives has no legal option on raising the debt ceiling -- they must raise it to finance laws in force, otherwise they are calling the validity of the public debt into question, contrary to Section 4 of the 14th Amendment. They MUST pay these bills.

A failure to do so is prima facie illegal in terms of the U.S. Constitution by the very fact that it puts the executive branch of government into a position where no Constitutional options are left open to the executive branch in fulfilling Constitutional duties and where an unConstitutional situation results because of a basic failure of the House of Representatives to do its job as the Constitution provides.

The House is currently trying to do an end run around the Constitutionally set legislative process, and its conspiring ringleaders should in our opinion be strongly punished for doing so as "conspiring against rights", which is a criminal violation of 18 USC § 241 - Conspiracy Against Rights. What the House is doing now is beyond their powers, and therefore they have no immunity for it against criminal prosecution -- so our opinion.

The President is Constitutionally obligated by law to pay debts, salaries, and pay for government programs legally in force as a matter of law, but can not do so Constitutionally if a debt ceiling is imposed by Congress that makes it impossible for the executive branch to make all the required payments.

Abraham Lincoln was put in this position and invoked emergency executive powers, bypassing Congress, and that was correct. But Obama likely does not have the character strength of an Abraham Lincoln.

In any case, that is why reductions in spending by the federal government -- if they are to occur -- must ONLY occur via normal legislation of both houses of Congress and not by unilateral extortionist runs by the House acting outside its powers, as if the Senate did not exist, and is if the House ran the nation.

Any attempt in so-called pending "negotiations" of the House with the President on the debt ceiling to bypass the Senate is doomed to failure. That is not the way the Constitution set up the legislative system. The House must go through Senate in legislation, any and all legislation. That's the law.

The present shutdown crisis is what inexorably happens when Congress and especially the House of Representatives is filled with "American Idol"-like doctors, veterinarians, businessmen, real estate brokers, wrestlers, singers, housewives, darlings of their influential parents, etc., i.e. amateurs "playing" legislator, i.e. with people who have not studied law and have been taught no comprehensive understanding of the American legal system or how to legislate in it, and who should rightly be out practising THEIR learned professions and not screwing up the country with their amateurish notions of government.

There are exceptions in legal background, such as the extremist Ted Cruz, whose alleged brilliance has unfortunately led him down an absolutist path in which he, like the very similar Supreme Court Justice Antonin Scalia, thinks he has found the holy grail of government that has eluded all the other brilliant judicial minds in America over the more than 200-year storied history of the USA.

Beware of these people who think they have all the answers. They do not. Rather, in following their absolutist theories, they cause much more harm than good to others, as the government shutdown shows.

What do Cruz and other leading extremists care about your average American? What do they care about America? Very little.
Their own careers and dogmas are more important to them.

If many "small" people in America do not get their paychecks and have to struggle while these politicos bask in the political limelight, what do they care?

Indeed, as many "small" people in America have no health care while the government shutdowners have no worries about THEIR own health care, it is clear that THEY do not care about YOU or your problems.

It appears to this observer that these misguided people are destructive political "theoreticians", nothing more, and they are terribly, terribly wrong, even if some of them are well-meaning. They are on the path of destruction.

See our previous posting on

Tea Party Political Nihilism: "WE DON'T CARE" as a Philosophy of Anarchism in the Russian Tradition of Mikhail Bakunin

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