Friday, October 11, 2013

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?.


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.

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.

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.

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