The Case Against Patents

You probably already know that patents are monopolies granted by the government that prohibit anyone but the patent holder from making, using, or selling the patented invention for some period of time (twenty years in the United States). Generally, the law frowns on monopolies because they are bad for competition, which usually means bad news for consumers in the form of higher prices and limited supplies, but patents are an exception to the general rule. 

Why’s that? Good question. The theory is that patents provide incentives for people and companies to invent new things and the general public is better off getting access to these innovations, even if it means they have to pay monopoly prices for a couple of decades.

But patents have their critics. Mainly the critics argue that patents don’t generate that many new products or services that wouldn’t have been created even without the government-granted monopoly, and instead nowadays patents are very often wielded as weapons that stifle innovation by threatening lawsuits against companies that are providing valuable services to the public.

Whether patents are good or bad is a complicated question, but PolyMatter has a great video on YouTube that explains the case against patents in a way that’s easy to understand. Whatever your opinion is on patents, the video is worth watching to stimulate your thinking on an important topic.

Link to video: The Case Against Patents - Amazon’s 1-Click “Invention”

What's a Preliminary Injunction?

It is not at all uncommon for a plaintiff in a lawsuit to ask a court for a preliminary injunction. So, what’s a preliminary injunction?

An injunction is an order from a court instructing a person to do something or to refrain from doing something. For example, say your local zoning board has refused to issue a permit, but you think that under the law you’re entitled to the permit. If a court agrees, it could issue an order to the zoning board commanding the board to give you the permit. That order would be an injunction.

But what about a preliminary injunction? Preliminary means something that comes before the main action or event. In lawsuits, the main event is the trial. So, a preliminary injunction is an injunction that a court issues before trial.

It sounds simple, but this is actually somewhat surprising and kind of a big deal. Why? Because the trial is when the court decides who wins and who loses the case. Issuing a preliminary injunction means that the court is ordering someone to do something, even though who will be the ultimate winner and loser is still up in the air.

Everyone is entitled to their day in court, and it’s kind of unfair to treat someone like they’ve already lost before they had a full hearing. Nevertheless, sometimes preliminary injunctions are necessary to make sure that the court’s decision in a case has a real impact and doesn’t become just an academic exercise.

Imagine, for example, that the city has decided to build a freeway through the middle of your house. You like your house and would very much prefer not to have cars traveling at high speeds through your living room. So, you sue the city, but you have a problem. The city’s bulldozers are on their way to knock your house down, and your trial is still a year away. What to do?

You guessed it. The answer is to get a preliminary injunction and have the court order the city to stop its bulldozers from flattening your house. The court order keeps your house standing until a trial can sort out whether the city has the right to knock it down.

In other words, the purpose of a preliminary injunction is not to give one side an advantage over the other, but rather to preserve the parties’ positions until a trial can figure out who is right under the law. Because preliminary injunctions have a tightly defined purpose and because they ask the court to take a significant action without the benefit of a trial and a final judgment, preliminary injunctions are hard to get. Courts have described them as an “extraordinary remedy” that will be granted only if certain conditions are met.

What are those conditions? I’m glad you asked. There are four.

First, the plaintiff must show a likelihood of success on the merits. In other words, the plaintiff must show that she is likely to win the case when she gets to trial. People with weak cases don’t get preliminary injunctions.

Second, the plaintiff must show that, without the injunction, she will suffer irreparable harm. A harm is irreparable if there is no way for it to be fixed later. If a bulldozer knocks down your house, there is no way to put the house back together again just as it was.

Lots of injuries can be fixed by money. But some things are unique, and the irreparable harm idea is to give protection to things that once lost or broken can never adequately be repaired.

Third, the plaintiff must show that the balance of the equities tips in her favor. This is a fuzzy concept, but it gets at the idea that if the plaintiff has acted badly or has created the problem herself in some way, then she doesn’t deserve extraordinary help from the court in the form of a preliminary injunction.

For example, if the plaintiff hastily constructs a shack directly in the path of the city’s bulldozers, a court might decide that the danger to the structure was self-inflicted, and so the equities tip against giving the plaintiff a preliminary injunction.

Finally, the public interest must support the issuance of the preliminary injunction. This factor is also a little squishy, but it gets at the idea that in some cases, more people than just the parties to the lawsuit have an interest in the outcome, and since a preliminary injunction is an extraordinary remedy, the court should only issue one if doing so is in the public interest.

So, what’s a preliminary injunction? It’s an extraordinary order from a court, issued before trial, commanding a party to take an action or to refrain from taking an action that can be obtained only by showing (1) a likelihood of success on the merits, (2) irreparable harm, (3) the balance of the equities, and (4) the public interest.

And that’s it. If you had ever wondered what a preliminary injunction was, now you know .

How to Start a Lawsuit in Federal Court

How do you start a lawsuit in federal court? The answer is given in Federal Rule of Civil Procedure Number 3.

Federal Rule of Civil Procedure Number 3 is short and sweet: “A civil action is commenced by filing a complaint with the court.”

Yet in this one sentence, there is a lot going on. Let’s unpack it.

“A civil action” is a lawsuit that does not seek criminal penalties, like fines or imprisonment. Usually, civil actions are between private parties, but governments can also bring civil actions and have civil actions brought against them.

Typical civil actions are claims for breaches of contracts—that is, where one party fails to perform a promise—or for torts—that is, where one party injures another party, either by accident or on purpose, like, for example, in a car accident.

How does one commence a civil action, or in other words, how do you start a lawsuit? As explained in Rule 3: by filing a complaint with the court.

“Filing … with the court” usually means going to the courthouse, finding the clerk’s office, and delivering the necessary paperwork, and of course, paying the required filing fees. Recently, electronic filing is becoming increasingly available, so trips to the court house may not be necessary for much longer.

And what is it that you have to file with the court to get your civil action going? Rule 3 has the answer for that as well: A complaint.

That’s … not very illuminating. What’s a complaint, you might ask? Good question.

A complaint is a written document, and it’s the way the plaintiff in a lawsuit notifies the court and the defendant of why the plaintiff is bringing the lawsuit. Complaints have three main parts.

First, complaints contain allegations. Allegations are the plaintiff’s version of events. At this point in the process, a plaintiff doesn’t have to offer any proof that the allegations are true. The plaintiff merely asserts that the allegations are true. Proof of whether the allegations are true or not will come later in the process.

Second, complaints contain claims. Claims are the legal grounds that justify the plaintiff’s lawsuit. These theories could be anything the law allows, including lawsuits for breach of contract or negligence, but also violations of anti-discrimination or antitrust laws, or anything else authorized by the legislature or the courts. By the way, “claims” are , also sometimes called causes of action, a name that makes sense because the claim is what causes the action, which is another name for lawsuit.

Finally, complaints contain prayers for relief. The prayer for relief describes what the plaintiff hopes to get out of the lawsuit. Usually, plaintiffs want damages, which is another word for money. Sometimes, plaintiffs also want injunctions, which are court orders compelling the defendant to do something or to refrain from doing something. There are other remedies available, but damages and injunctions are the big ones, so a discussion of other remedies will have to wait for another time.

And … that’s about it. To recap, Federal Rule of Civil Procedure 3 requires civil actions to be commenced by filing a complaint in court. Complaints have three parts: allegations, claims, and prayers for relief.

And with that simple piece of paper, your lawsuit is off and running.

Raise Your Right Hand

On January 20, Donald J. Trump will take the oath of the office to become the 45th President of the United States. In all likelihood, when he takes the oath, he will place his left hand on a Bible and raise his right hand in the air. This is the tradition for presidential oath-taking in recent years, but just how far back does this tradition go?

George Washington Leads the Way

George Washington, our nation’s first president, established innumerable precedents for how a President should act. These precedents, however, did not include raising his right hand when he took the first oath of office in New York in March 1989.

While there are no photographs of the event, this artist’s rendering shows Washington placing his right hand on a Bible, while his left hovers over his heart.

Another artist depicted more or less the same stance: right hand on the Bible, left hand by his side and resting on the hilt of his sword.

So when did Presidents start raising their right hands? It’s not entirely clear.

Drawings of early presidential inaugurations can be hard to find, and of course, you can never be sure whether the drawing depicts what really happened or is just a product of the artist’s imagination.

In 1817, James Monroe became the fifth President of the United States. At his swearing-in, Monroe followed Washington’s lead and placed his right hand on a Bible and kept his left hand by his side.

Andrew Jackson Puts His Hand Up

In 1829, Andrew Jackson ascended to the presidency riding a wave of white populism. In this portrait, Andrew proudly holds his right hand high. This is the earliest depiction of a President that I could find of where the President’s right hand is up and left hand is on the Bible.

You might think, then, that Andrew Jackson kicked off the tradition of raising your right hand and the practice stuck from then forward, but that doesn’t appear to be the case.

Abraham Lincoln Puts His Hand Down

Abraham Lincoln, the sixteenth president, seems to have reverted to Washington’s model of right hand on Bible and left hand down for at least his second inauguration.

Ulysses S. Grant, the eighteenth president, seems to have followed Lincoln’s lead. While I couldn’t find a drawing of Grant’s first inauguration, at his second, he puts his right hand on the Bible and keeps his left hand by his side.

Ups and Downs

In 1877, after a bitterly contested election, Rutherford B. Hayes ascends to the presidency. Hayes, it seems, decided not to touch a holy book and instead raised his right hand and kept his left hand by his side.

James Garfield and Chester Arthur both followed Hayes’s lead when they were sworn in as president in 1881, Garfield first, and then Arthur after Garfield was assassinated.

So it would seem that, by this point, the matter is settled. Right hands go up during swearing-ins. But not necessarily.

In 1889, Benjamin Harrison in a rain-soaked ceremony put his right hand on the Bible and kept his left hand down.

Finally a Photograph

William Mckinley became president in 1897. He seems to have thrown all tradition to the wind and put his left hand on the Bible and kept his right hand by his side.

And finally in 1901, we have a photograph. McKinley is inaugurated a second time, and this time we have a photo that clearly shows that, indeed, McKinley did not raise his right hand. In the photo, however, McKinley has his right hand on the Bible, while in his left hand he holds some papers.

A few months after his inauguration, McKinley is assassinated, and his Vice President Theodore Roosevelt becomes President, at the relatively tender age of 41. In a sketch of the hurried swearing in, Roosevelt holds his right hand high and uses his left to clutch the lapel of his jacket.

Roosevelt’s second inauguration was a more formal affair, and here again we have a photograph. While the angle is not ideal, it seems clear that Roosevelt indeed is raising his right hand while his left hand hangs by his side. 

When Is This Tradition Going to Start?

Roosevelt was followed by William Howard Taft, but I could not find a photo of Taft’s inauguration. In 1913, however, Woodrow Wilson becomes President, and Wilson goes his own way, placing his right hand on a Bible and holding the Bible with his left hand. 

 

The next President is Warren G. Harding, who takes the oath of office in 1921. Unlike his immediate predecessor, Harding clearly raises his right hand and keeps his left hand by his side.

Calvin Coolidge, Harding’s successor, also goes with the right hand up and the left hand down.

Just when you think the tradition is firmly established, Herbert Hoover comes along and goes back to putting his right hand on the Bible and keeping his left hand down.

And then in 1933 we get to Franklin Delano Roosevelt, the man who will take the oath of office of the President of the United States more times than any other person in the country’s history. As he takes the oath for the first time, he stands with his right hand held high.

So that’s it then, right? Right hands up  it is. That is, until the next person, which is Harry S. Truman, Roosevelt’s Vice President, hastily inaugurated in the waning days of World War II after Roosevelt’s sudden death. What does Truman do in his private swearing-in ceremony? It looks like right hand on top of the Bible and left hand underneath it.

But in another photo, it seems Truman is holding the Bible and raising his right hand. So maybe Truman started with both hands on the Bible and then raised his right hand. It’s not entirely clear.

Truman’s second inauguration in 1949 is more clear. This time, Truman clearly takes the oath with his right hand raised.

Can We Call It a Tradition Yet?

In 1953, Dwight D. Eisenhower, the General who was the Supreme Allied Commander during World War II, becomes President with his right hand raised.

And he does the same thing for the beginning of his second term in 1957.

At this point, it’s right hands up all the way through. For completeness, pictures of the other presidential swearing-in ceremonies follow.

1961 — John F. Kennedy

1963 — Lyndon B. Johnson

1965 — Johnson again

 

1969 — Richard M. Nixon

1973 — Nixon Again

1974 — Gerald F. Ford

 

1977 — Jimmy Carter

1981 — Ronald Reagan

1985 — Reagan again

 

1989 — George H.W. Bush

 

1993 — William Jefferson Clinton

 

1997 — Clinton again

2001 — George W. Bush

 

2005 — Bush again

2009 — Barack Obama

2013 — Obama again

In summary...

So that’s it. It seems that the tradition of raising the right hand to take the oath of office became firmly established in the twentieth century. What this stroll through history shows, however, is that even though it may seem that right hands raised may be the only way to take an oath, it has not always been so in our nation’s history. Time’s change, and even seemingly firmly rooted traditions are susceptible to the shifting sands of time.

DOJ Releases Guidance on Eyewitnesses and Photo Arrays

Good news in the fight against unreliable eyewitness identifications. This week the U.S. Department of Justice released guidance on steps law enforcement agents should take to reduce the chance of influencing a witness when a witness tries to make an identification from a photo array.

A photo array is a group of photos shown one at a time or all at once to a witness who is asked by police whether he or she sees the perpetrator in the array. The array may or may not include the suspect.

Possibly, the most significant reform is that federal agents investigating crimes should administer photo arrays using a “blind” procedure, meaning that the person who shows the witness the photos shouldn't know which photo in the array is of the suspect. The idea is to make it impossible for the person showing the photos to signal (consciously or unconsciously) to the witness which photo the police think that the witness ought to pick.

The DOJ guidance is just the latest of a growing recognition in legal circles that eyewitness identifications often cannot be trusted.

In 2012, the Supreme Court of Oregon pushed this insight significantly forward when it explicitly embraced the large body of social science research that shows that the confidence of eyewitnesses  in their identifications was not a reliable measure of accuracy and that witnesses were highly susceptible to having their memories shaped by subtle and not-so-subtle cues from police and prosecutors. To minimize the risk of identifications produced by suggestive procedures, the Oregon high court required prosecutors to prove that the identifications they wanted to introduce into evidence were not obtained using suggestive procedures.

Also in 2012, the Supreme Court of Kansas put an end to the practice in that State of telling jurors that the “certainty” of a witness was a good reason for believing or disbelieving an eyewitness identification.

These, and other developments like them, will go a long way toward ensuring that judges and juries who must weigh the testimony of eyewitnesses have the best information available when they are making decisions where justice hangs in the balance.

OCR Publishes New Title IX Guidance

Hot off the presses, OCR has published new guidance on Title IX. You can read all the details at http://www2.ed.gov/policy/rights/guid/ocr/title-ix-coordinators.html.

Murderer Takes Selfie With Victim's Corpse

What's there to say? An early frontrunner for dumbest criminal of the year. TechDirt has the story.

Your Fate in Others' Hands

One of the scariest things about litigation is that your fate is in the hands of people you don't know who may or may not see the world the same way you do. Everyone has their own prejudices, biases, experiences, and understandings of what makes sense to them and what doesn't. Sometimes the mental predispositions of other people line up with your own thinking and sometimes they don't. It's not necessarily that one world view is "right" and another is "wrong." It's just that different people see things in different ways. Often that's a good thing because different viewpoints can be an engine of progress and a fountain of new and interesting ideas.

In a legal setting, however, these differences can be terrifying because what makes perfect sense to you might seem utterly foreign or unbelievable to someone else or vice versa.

Take, for example, a case where a woman reports that she was sexually assaulted. An investigation reveals that the morning after the alleged assault, the woman sent text messages to the alleged assailant saying "I'm ok" or "I'm fine." What is the right way to interpret the significance of those messages? Are the text messages admissions that nothing really happened the night before or are they signals that the woman is still processing the trauma she experienced?

In a recent article in the Chronicle of Higher Education by Andy Thomason and Robin Wilson, here is what one lawyer who specializes in investigating allegations of sexual assaults on college campuses is quoted as saying:

"I’ve seen text messages exchanged very, very soon after an alleged assault, and I put less weight onto those," she says. If a woman is saying things like "It’s OK" or "I’m fine," says Ms. Kurker, "they don’t mean anything except the person just doesn’t want to deal with the situation right now." 

But if, weeks on, the alleged victim is sending friendly texts to the alleged perpetrator, that could mean something different. "It doesn’t make sense," she says, "that they would be exchanging flirty text messages after that time if something had gone wrong."

What's interesting about this statement by the investigator is not whether her view of what different messages at different times might mean for a particular person is right or wrong, because how would you know, especially in an individual case. Rather, the statement is striking because it offers a glimpse into the influence of preconceived notions on interpreting events and forming judgments about them.

And here's the real point: everyone comes to questions of fact with preconceived notions. Sometimes we call these notions experience. Sometimes we call them common sense. Those are the positive descriptors. If we disagree with the predispositions, we call them bias, prejudice, or ignorance.

For people caught up in the legal system, the reality is that winners and losers will in many cases be decided, right or wrong, by what makes sense to other people whether we agree with them or not.

$60k for One Year of Stanford

The San Jose Mercury News has this report today:

Stanford University will hike its tuition this fall by 3.5 percent, bringing it to $45,729, the campus announced Wednesday.

The new fees will raise the undergraduate tab to $60,427 for next year, a total that includes $14,107 for room and board and $591 for a mandatory health fee.

Because of financial aid, most students don’t pay the full sticker price, but still, that’s a lot of money. Paying full freight for four years at Stanford costs a cool quarter million. And the costs keep going up.

Tamping Down on Memory Tampering

Andrew Whitman at the American Criminal Law Review has this story about a new Illinois law that tries to solve the problem of police giving subtle or not-so-subtle hints to eyewitnesses trying to pick suspects out of lineups or photo arrays.

The Illinois law counters the problems of cognitive and confirmation bias. The law first requires that photo arrays (in which witnesses are shown pictures of the suspect and “fillers”) and in-person lineups be conducted by officers who do not know which choice is the suspect. Nobody who knows the identity of the suspect is allowed in the room. Next, the law sets standards to ensure that the police’s suspect “does not unduly stand out from the fillers.” For example, it would be against the spirit of the law if all of the fillers wore prison garb, and the suspect wore a shirt and tie.

 Most uniquely, the new law requires that lineups and photo array identification be videotaped by an unbiased police officer. Thus, the State of Illinois hopes to remove the guesswork of identifying bias and see for itself what’s going on.

Read the whole thing: Videotaping Justice: How Illinois Has Dealt With the Problem of Police Suggestion and How it Might be Used at Trial

Dartmouth, Hard Liquor, and Sexual Assault

It is not always fashionable to connect alcohol with sexual assault, although studies show significant percentages of sexual assaults involve alcohol. Dartmouth College, however, seems to see a connection.

According to the Associated Press, Dartmouth will ban hard liquor on its campus and increase training programs to prevent sexual violence:

Dartmouth College banned hard liquor on campus Thursday and said all students will have to take part in a sexual violence prevention program all four years they are at the Ivy League school.

It will be interesting to see if Dartmouth's experiment will be effective.

Source: Dartmouth Bans Hard Liquor, Takes Steps to Prevent Rape

Words You Don't Want to Hear

"We find the defendant guilty of aggravated rape." These are words you definitely never want to hear if you're sitting in the defendant's chair in a criminal trial, but two former Vanderbilt football players in a Tennessee courtroom had to listen to just those words as the jury foreperson read out guilty verdicts against them for sexually assaulting a woman who was passed out.

At the trial, the football players apparently tried to argue that they were too drunk to know what they were doing. Bad idea. The Washington Post has the story:

The defense blamed alcohol.

“The testimony was he was crazy drunk and didn’t know what he was doing,” Worrick Robinson, Batey’s attorney, said at trial.

Such arguments that the defendants were not in their right minds — or that their actions should be blamed on a college culture of licentiousness — did not go over with the jury.

This case illustrates that blaming alcohol isn't going to beat a rape charge. In California, as the Attorney General recently explained, voluntary intoxication is no defense to lack of consent. (Pen. Code, § 29.4, CALCRIM No. 3426.)

The drunk defense won't even beat a college campus disciplinary proceeding. As the Attorney General put it, “under SB 967, if the accused believed—due to the accused’s own intoxication or recklessness—that the complainant consented, this belief is not a valid excuse for any lack of affirmative consent. (Ed. Code, § 67386, subd. (a)(2)(A).)”

“I was just drunk out of my mind,” said one of the Vanderbilt defendants. “This is something I would never do in my right state of mind.”

Maybe, maybe not. It doesn't really matter. He did it, and so he is going to jail.

Getting drunk is dangerous. It is dangerous because it makes people more vulnerable to crime. It is dangerous because it makes people more likely to commit crimes. These two Vanderbilt football players learned that lesson the hard way.

California Attorney General Issues Guidance on Sexual Assaults on College Campuses

Yesterday, the Attorney General of California issued guidance on two new California laws that impose new requirements for how colleges and universities in California must respond to reports of sexual misconduct on their campuses.

Broadly speaking, AB 1433 requires California colleges to report to local law enforcement reports of violent crimes, hate crimes, or sexual assaults.

SB 967 is the well publicized "affirmative consent" law that requires California colleges to require "affirmative consent" as the standard for consent on their campuses.

“Affirmative consent” is defined as an affirmative, conscious, and voluntary agreement to engage in sexual activity. Under the law, neither the lack of protest or resistance nor silence constitutes consent, and consent may be withdrawn at any time. Affirmative consent must be given by all parties to sexual activity.

The law also requires campuses to use the preponderance of the evidence standard in evaluating reports, which is codifies into state law the guidance issued by the US Department of Education's Office for Civil Rights.

Many of SB 967's requirements track obligations already in place under the Clery Act, so the Attorney General's description of the California law may offer insights for institutions of higher education outside of California's borders.

As always, read the whole thing for the full story: New and Amended Campus Safety Laws; Points of Collaboration between Campus Personnel and Law Enforcement 

New Survey on Sexual Assault

Sometimes all you have to do is ask. Last week, I posted links to the most prominent studies on the frequency of sexual assault on college and university campuses, but noted that further study would be very helpful in nailing down the best estimates.

It turns out that the American Association of Universities announced that it will be trying to answer this very question be conducting surveys this spring at 28 college and universities that represent over 800,000 students. The AAU's press release describes the study this way:

A team of experts from universities and Westat is developing the survey, based on an instrument developed by the White House Task Force to Protect Students from Sexual Assault. The survey will document the frequency and characteristics of campus sexual assault and sexual harassment, and assess campus climate in a way that allows for comparability of data across institutions and that protects the confidentiality of respondents.

The press release doesn't provide details on the study's methodology, but according to the press release, “the survey is expected to be among the largest ever on sexual assault." Here's hoping for a successful and informative survey.

Frequency of Sexual Assault on College Campuses

Without question, a single sexual assault on a college or university campus (or anywhere else for that matter) is one too many. Nevertheless, the frequency of sexual assaults has taken a central place in political and legal debates over the policies and regulations that should govern colleges and universities.

While numerous studies exist, three in particular are at the epicenter of these debates:

• the 2007 Campus Sexual Assault Study (also known as the "CSA");
• the 2010 National Intimate Partner and Sexual Violence Survey (the "NISVS"); and
• the 2014 analysis of the Bureau of Justice Statistics' National Crime Victimization Survey (the "NCVS") published under the title Rape and Sexual Assault Victimization Among College-Age Females, 1995–2013.

The studies reached radically different conclusions about the frequency of sexual assaults among college students. For example, the CSA study concluded that one in five women (20 percent) experience a sexual assault in college. The NCVS study put the number at six out of a thousand (0.6 percent). That's quite a difference.

Differences in methodology, framing of questions, and definitions might explain some of the discrepancy between the various numbers. The NCVS report has an illuminating discussion of some of these differences for those that are interested.

Like many social science questions, further study will hopefully cast more light on this important question.