April 2011

  • April 8, 2011

    The Senate unanimously confirmed Jimmie V. Reyna, a Washington lawyer and former president of the Hispanic National Bar Association, to a seat on the U.S. District Court for the Federal Circuit.

  • April 8, 2011
    Guest Post

    By Marla Grossman, a partner at American Continental Group.


    The Obama Administration’s emphasis on stimulating the U.S. economy and creating U.S. jobs, as well as the increasing recognition from Congress that a strong patent system is critical to an innovation-friendly government, has made it more important than ever for Congress to pass a permanent legislative solution to the damaging practice of taxing innovation by diverting user fees away from the U.S. Patent and Trademark Office (USPTO). Such a solution is part of the patent reform bill recently passed in the Senate, S.23, and is also part of the patent reform bill introduced by the House last week, H.R. 1249.

    The USPTO is the federal agency that processes patent and trademark applications, disseminates patent and trademark information, and administers the laws relating to patents and trademarks.

    Since 1990, the USPTO has been entirely funded through the payment of patent and trademark application and user fees; before 1990, taxpayers supported the operations of the USPTO. However, with the passage of the Omnibus Reconciliation Act of 1990 (OBRA), taxpayer support was eliminated. OBRA imposed a significant fee increase on America’s inventors in order to replace the taxpayer support the USPTO was, until that point, receiving. The fees paid by users of the patent and trademark systems are referred to as “USPTO user fees.” The revenues generated by this fee are collected by the USPTO and then transferred into a general Treasury account. The USPTO is required to request that the Congressional Appropriations Committees allow the agency to use the revenues in the account.

  • April 8, 2011

    The BLT: Blog of Legal Times provides coverage of the annual ‘40 at 50’ Judicial Pro Bono Recognition Breakfast where several Washington, D.C. law firms were honored for “their commitment to performing pro bono work during the past year.”

    U.S. District Court Chief Judge Royce Lamberth and U.S. Court of Appeals for the D.C. Circuit Judge Merrick Garland applauded the work of the attorneys committed to pro bono work, including Philippa Scarlett (pictured), partner at Kirkland & Eillis and an ACS Board member. The BLT has photos of the event, including this one, which shows Scarlett with Thomas Williamson Jr., partner at Covington & Burling, and Judge Lamberth.

    Judge Lamberth told the 30 law firms honored, “You understand that your time and talent can make the difference. We do value your work.” Judge Garland, noting high unemployment and poverty in the District, said, “We are not powerless against these statistics. I ask you to continue your partnerships with area legal service providers,” The BLT reported.

  • April 8, 2011
    Guest Post

    By Peter M. Shane, the Jacob E. Davis and Jacob E. Davis II Chair in Law, Moritz College of Law, Ohio State University, and the author of Madison’s Nightmare: How Executive Power Threatens American Democracy. This post is a response to yesterday’s BookTalk post by Professors Eric Posner and Adrian Vermeule, and a critique of their new book.


    I disagree so deeply and at so many points with The Executive Unbound: After the Madisonian Republic, the new book by Eric Posner and Adrien Vermeule, that I feel compelled to begin on a positive note. Theirs is a challenging, provocative work.  Regular engagement with interlocutors as thoughtful and well-read as these two authors would deepen anyone’s thinking. To those who remain normatively committed to a robust rule-of-law vision of presidential authority, they pose a more interesting challenge than do putative constitutional originalists who find the founding generation oddly sanguine (and modern) in their thinking about executive power. 

    In addition, two implications emerge from The Executive Unbound that I wholeheartedly support. One is a recognition of the challenge (the authors would say “impossibility,” which I do not endorse) of reshaping the political landscape in a way that would make the revitalization of legal checks and balances a realistic program. This is really the point of their blog post. The second is the importance of strengthening the institutions that check the President politically, not just legally. I agree enthusiastically.

    For Professors Posner and Vermeule, professorial contestation about Framer intent is quaintly beside the point. As they describe it, the Madisonian vision of checks and balances simply fails as a description of how the administrative state works. And, because, as they depict that vision, it actually cannot be implemented, it ought not to be our normative framework either. Instead, we should recognize that, under current institutional arrangements, we have an executive branch that can pretty much do as it pleases within constraints that are significant, but almost always more political than legal. Our normative ideal should be the strengthening of these extralegal institutional constraints to try to ensure that what the executive branch winds up doing with its inevitable discretion is at least consistent with public opinion. 

    So here are my four essential points of disagreement.

  • April 7, 2011

    The Supreme Court of Arkansas’s rejection of a voter approved ballot measure barring gay couples from adopting is a being widely hailed as a victory for equality, but derided by a lone Religious Right outfit as creating a threat to the state’s youth.

    In Arkansas Department of Human Services v. Cole, a unanimous high court upheld a lower court ruling that concluded the ballot measure, Act 1, violated privacy rights protected by the Arkansas Constitution.

    The measure approved by 57 percent of voters in 2008 bars children from being adopted by a parent who is “cohabiting with a sexual partner outside of a marriage that is valid under the Arkansas Constitution and the laws of this state.” The American Civil Liberties Union (ACLU) represented several couples in a lawsuit challenging the measure’s constitutionality.

    Associate Justice Robert L. Brown cited state court precedent that the “Arkansas Constitution does guarantee citizens certain inherent and inalienable rights, including enjoyment of life and liberty and the pursuit of happiness, and … the right of citizens to be secure in their own homes.” Moreover, Brown noted that “privacy is mentioned in more than eighty statutes enacted by the Arkansas General Assembly, thereby establishing ‘a public policy of the General Assembly supporting a right to privacy.’”

    Brown concluded that Act 1 was indeed a violation of privacy rights. Under the act, “the exercise of one’s fundamental right to engage in private, consensual sexual activity is conditioned on foregoing the privilege of adopting or fostering children. The choice imposed on cohabiting sexual partners, whether heterosexual or homosexual, is dramatic. They must choose either to lead a life of private, sexual intimacy with a partner without the opportunity to adopt or foster children or forego sexual cohabitation and, thereby, attain eligibility to adopt of foster.”

    Christine P. Sun, senior counsel for the ACLU Lesbian Gay Bisexual and Transgender Project, hailed the opinion, saying the “ban did nothing positive. It required the government to intrude into the private lives of Arkansans for no child welfare purpose at all. We are relieved that the court agreed that the law is unconstitutional.”

    Human Rights Campaign (HRC) President Joe Solmonese said the Arkansas high court had “removed a discriminatory barrier for loving gay and lesbian couples who, child welfare experts agree, are equally able parents.”

    Jerry Cox head of the Family Council, a Religious Right group that helped push passage of Act 1, complained that the Supreme Court had belittled state voters with the ruling, and said his organization would urge lawmakers to amend the constitution to ban same-sex couples from adopting, the Arkansas Democrat Gazette reported.

    The Huffington Post’s Amanda Terkel noted that “Mississippi and Utah are now the only two states with an explicit ban on unmarried, co-habitating couples adopting. Other states have implicit bans that don’t necessarily outlaw gay adoption but make it very difficult in practice. One such state is Virginia, where Gov. Bob McDonnell (R ) is currently considering whether to derail a proposal, recommended by his Democratic predecessor, that would amend state regulation to allow same-sex couples to adopt.”