April 2010

  • April 8, 2010
    Unfriendly Fire
    How the Gay Ban Undermines the Military and Weakens America
    Nathaniel Frank
    [Editors' note: Unfriendly Fire is now available in paperback. Accordingly, ACSblog is pleased to re-post author Nathaniel Frank's ACS Book Talk contribution from June 11, 2009.] 
    By Nathaniel Frank, Senior Research Fellow, the Palm Center

    This week the Supreme Court rejected a challenge to the "don't ask, don't tell" policy governing gay troops. In doing so it granted a request by the Obama administration which had asked the court not to hear the appeal of James Pietrangelo, an Army Captain who was fired under the policy.

    In asking the court not to take the case, the White House put itself into a tricky position. The administration found itself arguing that the lower court had ruled correctly in finding that the policy furthers a "legitimate interest in military discipline and cohesion." Yet if the President believes that, why has he promised to get rid of the policy? Indeed, Obama has stated clearly that he believes the opposite to be true, saying the policy is a "counterproductive strategy" that "doesn't make us more safe." His press secretary, thrown on the defensive recently by mounting pressure to lift the ban, has repeatedly said that the policy "isn't working for our national interests."

  • April 8, 2010
    Guest Post

    By Ann Baddour, Senior Policy Analyst, Texas Appleseed & Steven Schulman, Pro Bono Partner, Akin Gump Strauss Hauer & Feld LLP

    The U.S. immigration court and detention systems have both acknowledged the need to extend special protections to vulnerable populations, including unaccompanied children. Immigrants with mental disabilities, given their particular inability to navigate these systems and obtain care on their own, should also be regarded as vulnerable and afforded protections in the U.S. immigration system.

    Immigrants with mental disabilities are detained in a system ill-equipped to care for them, and, to make matters worse, are often arbitrarily transferred far away from their family and community supports, denied basic due process in a complex immigration court system, and released from detention or removed from the U.S. without regard to their personal safety.

    Texas Appleseed, one of Appleseed's 16 public interest law centers in the U.S. and Mexico City, and its pro bono counsel, Akin Gump Strauss Hauer & Feld LLP, document these challenges and recommend specific reforms in a new report, Justice for Immigration's Hidden Population. Based on information from more than 40 interviews with immigration attorneys, immigration detainees, and other stakeholders, along with detailed policy research, the study identifies these troubling trends:

  • April 7, 2010
    Guest Post

    By Sandra S. Park, Staff Attorney, ACLU Women's Rights Project

    Last week, federal district court Judge Robert Sweet made history by issuing the first ruling ever that human genes can't be patented. The ruling was in a case brought by the ACLU and the Public Patent Foundation (PUBPAT) challenging patents granted by the U.S. Patent and Trademark Office (PTO) to Myriad Genetics on two human genes - specifically, the BRCA1 and BRCA2 genes, which are associated with breast and ovarian cancer. The lawsuit was filed on behalf of breast cancer and women's health groups, individual women, geneticists, and scientific associations representing approximately 150,000 researchers, pathologists and laboratory professionals. 

    The ACLU believes gene patenting raises serious civil liberties concerns because the government is essentially giving patent-holders a monopoly over the patented genes and all of the information contained within them. Patent-holders have the right to prevent anyone else from testing, studying, or even examining the genes. Under patent law, if you or your doctor were to remove your genes from your cells in order to look at them, you potentially could be sued by the patent-holder for committing patent infringement. Thus, when Myriad obtained its patents, it was able to shut down other labs that were providing testing - not because those labs were using a particular kind of test developed and patented by Myriad, but because Myriad controlled the genes themselves. (For a discussion of the legal background and arguments we made in the case, see our earlier post.)

    In his decision, Judge Sweet declared that all 15 patent claims that we challenged are invalid, because they cover products of nature and abstract ideas.

    The judge ruled that Myriad's argument - that the "isolation" of the BRCA genes from the surrounding DNA and cellular material makes them into something distinct and patentable - is fundamentally flawed and nothing more than semantics: 

    Many, however, including scientists in the field of molecular biology and genomics, have considered this practice a "lawyer's trick" that circumvents the prohibitions on the direct patenting of the DNA in our bodies but which, in practice, reaches the same result.

    His decision recognized that patents on genes - like patents on chemically-treated fruit, a combination of species of bacteria, and purified tungsten that have been rejected by the courts - are not authorized by the Patent Act. Myriad did not invent the biological information embodied by genes.

    The resolution of these motions is based upon long recognized principles of molecular biology and genetics: DNA represents the physical embodiment of biological information, distinct in its essential characteristics from any other chemical found in nature. It is concluded that DNA's existence in an "isolated" form alters neither this fundamental quality of DNA as it exists in the body nor the information it encodes. Therefore, the patents at issue directed to "isolated DNA" containing sequences found in nature are unsustainable as a matter of law and are deemed unpatentable subject matter under 35 U.S.C. § 101.

  • April 7, 2010
    Guest Post

    By Kevin R. Johnson, Dean of the UC Davis School of Law and Mabie-Apallas Professor of Public Interest Law and Chicana/o Studies, and co-editor of the ImmigrationProf blog & Raha Jorjani, Supervising Attorney and Lecturer in the UC Davis Immigration Law Clinic

    Under the Immigration & Nationality Act (INA), conviction of an "aggravated felony" makes long-term permanent resident aliens ineligible for a form of discretionary relief from removal known as "cancellation of removal." Over the last two decades, Congress has slowly but surely expanded the definition of "aggravated felony" to punish immigrants convicted of crimes, revealing the deep unpopularity of "criminal aliens" among the public and policymakers. As a result, since 1996, the nation has deported hundreds of thousands of immigrants each year.

    In 2006, the Court in Lopez v. Gonzales, 549 U.S. 47 (2006) held that a state felony drug possession conviction that would not have been a felony under federal law was not an "aggravated felony": Since "Congress generally treats possession alone as a misdemeanor whatever the amount," a possession conviction does not ordinarily constitute an "aggravated felony." Last Term, the Supreme Court decided three of four immigration cases in favor of the immigrant. The single victory for the government came in Nijhawan v. Holder, 129 S. Ct. 2294 (2009), in which the Court ruled that the immigration court correctly inquired into the underlying facts of a state fraud conviction in concluding that the monetary loss to the victims exceeded $10,000, which was necessary to make the crime an "aggravated felony" under the INA.

    In Carachuri-Rosendo v. Holder, the Court must address the complex question whether a state misdemeanor conviction for drug possession amounts to an aggravated felony. A lawful permanent resident with four U.S. citizen children, Jose Angel Carachuri-Rosendo entered the United States from Mexico in 1993. He was convicted in the Texas courts for (1) misdemeanor possession of marijuana, for which he was sentenced to 20 days in jail; and (2) misdemeanor possession of one tablet of Xanax, for which he was sentenced to ten days in jail.

  • April 7, 2010
    Guest Post

     By Aparna Sridhar, public policy counsel, Free Press

    Broadband networks represent the most critical communications infrastructure of our time: if these underlying transmission systems don't function effectively, the Internet cannot serve as a vibrant forum for speech, commerce, and culture.

    Yesterday's ruling from the D.C. Circuit in Comcast v. FCC called into question the Federal Communications Commission's ability to protect consumers from harmful activity by the owners of these networks. Without oversight, dominant broadband providers - principally large cable and telephone companies - will be free to do as they wish even if their actions hinder the free flow of information, treat consumers unfairly, or discriminate against speech that they find undesirable. The decision also suggests that the Commission has limited authority to implement its recently devised National Broadband Plan - a plan that will be critical in closing the digital divide at home and abroad.

    To understand these issues more fully, we need to step back in time a bit. Historically, communications law and FCC policy have recognized several unique characteristics of communications networks (like the telephone, telegraph, and now IP-based networks): (1) The networks require significant investment to build them, and as a result, the market to provide access to such networks will likely be heavily concentrated, (2) customers can likely use the services of only one network provider at a time; and (3) the costs associated with switching providers are significant. Thus, the owners of the networks have sufficient gatekeeping power. Because the network providers possess this gatekeeping power, the law required them to comply with certain basic rules, including the duty to open their networks to everyone without discrimination, and the duty to interconnect with other network providers that offered the same services.

    On the other hand, the law historically imposed very few requirements on companies whose services made use of these networks, including such services as e-mail, Web browsing, and other content and applications made available over the Internet. The market for those types of services is more competitive, the barriers to entry are lower, and the chance that those service providers can extract monopoly rents or hamstring their competitors is significantly reduced as a result.

    In 1996, Congress passed the Telecommunications Act, which essentially adopted these distinctions. Access to a communications network was deemed a "telecommunications service," and content and applications that used that IP-based networks to transmit data were termed "information services." And for the first few years after the 1996 Act was passed, the FCC treated broadband providers as "telecommunications service" providers.