• January 19, 2016
    Guest Post

    by Leticia M. Saucedo, Professor of Law and Director of Clinical Legal Education, UC Davis School of Law

    The Supreme Court granted certiorari in United States v. Texas today, agreeing to hear the federal government’s questions on its immigration policy and adding one more. The Court will decide whether the federal government’s policy to postpone the deportations of millions who are in the United States in undocumented status is arbitrary and capricious, whether it was subject to the APA’s notice and comment procedures, and whether the states have standing to sue. The Court added a question that was not decided in the lower courts, namely, whether the policy violates the Take Care Clause in Art. II, Sec. 3, which requires the president to take care that the laws of the United States are faithfully executed.

    At issue in this case is the president’s announcement of a guidance that would defer action on the undocumented noncitizens in the United States who have lived in the United States for five years and who came as children, or who have U.S. citizen or permanent resident children. The federal government claims that the president’s guidance is permitted under immigration law, which allows the Department of Homeland Security to postpone, for its own convenience or for humanitarian reasons, the removal of noncitizens from the United States. The immigration statute also allows the Department of Homeland Security, for its own convenience, to issue employment authorization to these individuals. Notably, deferred action does not bestow any form of legal status on noncitizens, nor does it provide any benefit.

    The most interesting part of the Court’s grant is its signal that it will decide whether the president’s guidance violates the Constitution’s Take Care Clause. The questions of whether the president has faithfully executed the laws of the United States requires a deep understanding of the multi-dimensional nature of the immigration law at stake.

  • January 19, 2016
    Guest Post

    by Kali Murray, Associate Professor of Law, Marquette University Law School

    *This post is part of the ACSblog Symposium on Patent Law Reform.

    Recently, I was informed that I needed to stop using the words “patent reform” in my work. Such words, it was explained to me, had become too contested. The words “patent reform” had become a political tool used by one side or the other in the fierce debate over how to effectively police the specter of patent trolls, whether through congressional reform or state and federal administrative efforts. It seems to me, though, that these words—“patent reform”—are too important to give up to one side or another, and so, this is an attempt to give new meaning to these words going forward.

    What then are the steps that must be taken if we are to give meaning to the words “patent reform?” First, any patent reform needs to take into account what I and my co-author Erica George have referred to as the dual objectives of the patent system. Our constitutional patent regime seeks not only to incentivize the economic activity of a patent claimant but also to protect the preconditions for creative activity that serve as the basic building blocks of scientific inquiry and information exchange. We call this the patent bargain: The patent owner gains a property right in the information in exchange for disclosure of the patent to the public. Too often though, when we speak about patent law, we value the rights of the patent claimant over the right of the public to have access and use to the information contained within the patent.

    Recognizing these dual objectives would center patent reform in two ways. Initially, if we see that patent reform serves democratic values other than the economic goals of innovation, it may limit the ongoing deterioration of our current debate into a contest between different interest groups. As we have seen within the context of copyright law, this can lead to significant industry capture that can harm coherence and continuity of the current law. Additionally, honoring the dual objectives of the patent system may also help to center the debate in progressive values of transparency, access, and equity. I object, for instance, to the current legislation before Congress that imposes significant attorney fees in patent litigation because it may dissuade nonprofits and public interest groups from engaging in litigation to challenge undesirable patents. Such choices would significantly undermine access to different avenues of patent litigation, thus undermining the dual objectives embodied in our patent bargain.

  • January 19, 2016

    by Jim Thompson

    Today, the Supreme Court announced it will consider a legal challenge to President Obama’s Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA) program, write Adam Liptak and Michael D. Shear in The New York Times. The Supreme Court’s decision will determine the fate of millions of immigrants in the U.S.

    Felice León at The Root reflects on the gains and losses of the civil rights movement since the enactment of Martin Luther King Jr. Day 30 years ago.

    Employees of the music equipment retailer Guitar Center were told they would be fired if they did not sign mandatory arbitration agreements relinquishing their right to sue the company in a class action lawsuit, reports Dave Jamieson at the Huffington Post

    At MSNBC, Irin Carmon criticizes social conservatives for using religious freedom arguments to weaponize the First Amendment in their attacks on anti-discrimination laws.     

  • January 15, 2016
    Notorious RBG
    The Life and Times of Ruth Bader Ginsburg
    Irin Carmon and Shana Knizhnik

    by Shana Knizhnik, co-author and founder of the Notorious RBG Tumblr

    In late June 2013, as in every June, the Supreme Court decided a number of high-stakes cases. A majority of the Court threatened the future of affirmative action, made it more difficult to seek redress for employment discrimination, and gutted the Voting Rights Act, one of the most important pieces of civil rights legislation in the history of the United States. In each of these cases, Justice Ruth Bader Ginsburg used her voice to stand up and speak out on behalf of the rights of the disenfranchised, dissenting from the bench to protest the actions of the majority. As an incoming second-year law student, I was appalled at what the court was doing. But amidst that anger, RBG’s words stood out as a shining beacon, exemplifying the egalitarian and inclusive values I knew were embodied in the Constitution. I took to the internet, and Notorious RBG was born on Tumblr.

    As it turns out, RBG has been speaking out for the marginalized for most of her life. In Notorious RBG: The Life and Times of Ruth Bader Ginsburg, reporter Irin Carmon and I explain how RBG has captured the imagination of so many—from t-shirts to embroidery, music videos to nail art—but also why. RBG’s popularity represents so much more than just a fascination with a cool grandma (although she certainly has that going for her). In a time where rights many Americans take for granted are on the chopping block, RBG refuses to back down from her life’s mission: the continued expansion of “We the People.” We believe that this book, like the Notorious RBG phenomenon itself, draws a broad, inter-generational audience into the important work of the Court.

  • January 15, 2016

    by Jim Thompson

    Harold Meyerson at The American Prospect warns against a future without public employee unions and urges progressives to both accept blame for the decline of unions and assume responsibility for preserving their viability.

    In Daily Kos, Public Justice Executive Director Paul Bland says that his law firm is filing a lawsuit challenging a blatantly unconstitutional North Carolina “ag-gag” law that seeks to punish whistleblowers who inform the public about improper conduct at factory farms.

    A federal judge further delayed a class-action lawsuit settlement involving over 7 million defective Remington rifles after both parties in the case said they need more time to develop a better plan for alerting the public to this dangerous defect, reports Scott Cohn at CNBC.

    A recent study by the U.S. Government Accountability Office found that “70 percent of guns seized in Mexico and traced by the U.S. Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF) from 2009 to 2014 came from the U.S.,” highlighting the global consequences of America’s lax gun control laws, reports German Lopez at Vox.

    Lawrence NordenBrent Ferguson and Douglas Keith at The Brennan Center for Justice examine six closely divided decisions by the Roberts Supreme Court that drastically transformed the landscape of campaign finance in America, mostly for the worse.