By: Monica Gupta,
on 9/2/2016
महात्मा गांधी और उनकी हत्या का रहस्य सात दशक पुराना गांधी हत्याकांड Gandhi assassination आज फिर चर्चा में है. गांधी हत्या, आरएसएस और हे राम ने नई बहस छेड दी है. राहुल गांधी के वकील कपिल सिब्बल ने गुरुवार को सुप्रीम कोर्ट में कहा कि राहुल अपने बयान, ”आरएसएस के लोगों ने गांधी को गोली मारी” […]
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By: Alistair Shand,
on 4/12/2016
The field of "legal history" studies the relationship that “law” and legal institutions have to the society that surrounds them. "Law” means everything from local regulations and rules promulgated by administrative agencies, to statutes and court decisions. Legal history is interested in how “law” and legal institutions operate, and how they change over time in reaction to changing economic, social, and political conditions.
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By: Monica Gupta,
on 7/28/2015
New Bench …
Three-judge SC bench to hear Yakub Memons plea today – Livemint
The curative writ petition filed by the 1993 Bombay blasts convict Yakub Memon will now be considered by a three-judge bench of the Supreme Court on Wednesday.
The decision was taken by the chief justice of India (CJI) H.L.
Dattu after a two-judge bench of justices Anil R. Dave and Kurian Joseph gave a split verdict on Tuesday.
Senior counsel Raju Ramachandran, appearing on Memon’s behalf, mentioned the matter before a five-judge bench headed by Dattu.
“I will constitute a bench,” Dattu said when the matter was presented before him but he refused to stay the execution.
Dave said the matter should be heard immediately, preferably on Wednesday, given the urgency of the issue. Read more…
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By: Mohamed Sesay,
on 7/4/2015
Like many, I’m still digesting the Supreme Court’s Obergefell decision—not just its text, but its personal and social significance. When I wrote Debating Same-Sex Marriage with Maggie Gallagher (Oxford University Press, 2012), only a handful of states permitted same-sex couples to marry. In the three years since, that handful grew to dozens; last Friday’s decision grows it to all 50. One striking thing about the decision itself is the importance of the definitional question: What is marriage?
One striking thing about the decision itself is the importance of the definitional question: What is marriage?
If the state prohibits same-sex couples from marrying, does it thereby interfere with their liberty, as the majority argues, or does it simply decline to grant them certain benefits? If the latter, is it treating them unequally—and thus violating the Equal Protection clause of the 14th Amendment—by privileging certain citizens without sufficient reason for the distinction? The answer depends on what marriage is. If marriage by definition requires (at least) one man and one woman, then same-sex “marriage” is impossible by definition, and one does not treat people unfairly by denying them something impossible.
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By: Monica Gupta,
on 6/28/2015
Same Sex Marriage
बेशक अमेरिका में Same Sex Marriage को मान्यता मिल गई है पर हमारे देश में इसे भारी मात्रा में सही नही माना जा रहा. तभी इस कार्टून मॆं एक पिता अपनी लडकी के घर से भागने और अन्य लडकी से शादी करने पर बेहद दुखी है …
-गे मैरिज
ओबामा ने एक विशेष संदेश में कहा- “यह अमरीका की जीत है… यह जीत इस बात की पुष्टि करती है कि लाखों अमरीकी लोग बराबर हैं और हम अधिक स्वतंत्र हो गए हैं”। अमरीका की सुप्रीम कोर्ट ने सभी राज्यों में समलैंगिक विवाह को वैध घोषित किया
बराक ओबामा ने विश्वास व्यक्त किया कि अदालत के इस फैसले से अमरीकी समाज और मज़बूत होगा जिसमें आज से “कुछ और सुधार हुआ है।”
शुक्रवार को अमरीका के सर्वोच्च न्यायालय ने फैसला सुनाया था कि समलैंगिक विवाह करने का अधिकार संविधान के विपरीत नहीं है। अब सर्वोच्च न्यायालय के इस फैसले के आधार पर पूरे अमरीका में समलैंगिक विवाह वैध माने जाएंगे। सर्वोच्च न्यायालय के इस निर्णय के तुरंत पश्चात अदालत की इमारत के सामने समलैंगिक विवाहों के समर्थकों द्वारा एक रैली की गई। See more…
Same Sex Marriage
american supreme court rules same sex marriage is legal: :
‘समान अधिकार देना कानून का फर्ज’जस्टिस एंथनी कैनेडी ने फैसला सुनाते हुए कहा, ‘सोसायटी की पुरानी मान्यताओं के चलते किसी भी समलैंगिक शख्स को अकेले रहने के लिए मजबूर नहीं किया जा सकता. शादी करना उसका अधिकार है और सभी को समान अधिकार देना कानून का फर्ज है.’
Today is a big step in our march toward equality. Gay and lesbian couples now have the right to marry, just like anyone else. #LoveWins See more…
जो भी हो पर Same Sex Marriage पर एक बार फिर से debate जरुर छिड गई है
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By: Karen Maxwell,
on 6/28/2015
So I was sitting in the pit at work, answering phones, like I always do when I’m not in clinic with my doctor, when my gay co-worker burst into the room, shaking, laughing and smiling.
“The Supreme Court just ruled same-sex marriage legal! Now I can get married whenever and wherever I want to!”
I blinked, absorbed what he was saying and then forced a smile in a silent form of congratulations. Thinking to myself, The Supreme Court did what??
That’s how I found out that same-sex marriage is now legal in every state.
I’ve been thinking about writing this post for the past 48 hours. How I wanted to write it. What I wanted to write about this subject. And it’s a toughie. It truly is. Let me see if I can first break my thoughts down and secondly try and make it as fair to all parties that I can.
Yes. I work with a gay man. He is the sweetest and most likable person I’ve ever known. I’ve liked him from the very moment I met him. And we get along famously. In fact, his sense of humor reminds me so much of my brother that I sort of SEE and TREAT him like a little brother. Yes. I’ve told him that before.
So I’ve had to be very careful in how I approach this subject at work because it would kill me to hurt this guy’s feelings. I truly like and care about him and I’m a lot of things, but I’m never intentionally cruel to someone – I have too much respect for the people in my life, or the people I like, to go out of my way to be deliberately nasty to them.
But I don’t agree with the gay lifestyle.
WAIT. DON’T GO. Hear me out, please.
I don’t believe God intended men to be with men. Or women to be with women. And no matter how we sugar coat it, or think of different ways to redefine it, marriage is between a man and a woman. Period. I’ve never understood why the gay community insisted on redefining that word. That word belongs to the heterosexual, get your own damn word. Call it a civil union, or a gay union, or whatever else you want to define two gay people becoming legally/contractually obligated to each other, but marriage is OURS.
Or it was until the Supreme Court stuck their high and mighty noses into it.
So, no. I don’t agree with the gay lifestyle. I don’t think it’s natural or beautiful or any other label you want to attach to it. I don’t believe you’re born a homosexual. I believe it’s a conscious/subconscious choice that is influenced by outside factors. I think people are born with a homosexual tendency, like a person is born with alcoholic/drug addiction tendencies and those people have to work that much harder to resist the temptation, but no, I don’t think there’s a special “gene” that makes a person gay.
This is what I believe. Disagree if you must. But here’s the thing – I really don’t care if someone *chooses to live that sort of lifestyle.
No really.
I. Don’t. Care.
It’s really none of my business how a person lives his/her life. I figure the gay community will be judged at some point and that at some point they will have to look God in the eye and explain their behavior.
I say, “good luck with that.” *SALUTE*
God granted humans the gift of free will – if one chooses to live by the rules that God has set forth in His Word, then that person will be rewarded when Christ comes back to get us. If one chooses NOT to live by the rules that God has set forth, then that person will not be rewarded. But it doesn’t really matter how a Christian lives his/her life, God loves us no matter what choices we make. If a person has accepted Jesus Christ into his/her heart and confessed with his/her mouth that Christ is Lord and was raised from the dead, then that person is a child of God. And just like our flesh and blood children sometimes disappoint us and/or don’t live their lives like we would like them to, they are still our children and we still love them.
The same principle applies to God’s children.
So a gay man may be a Christian and God will still love that man, but he will be disappointed and like a naughty child, that man will not be rewarded for his choices.
For with the gift of free will comes consequences of that free will.
If I choose to hold up a liquor store and steal all of their money, that was my choice. Granted, it was a poor choice, but mine, nonetheless. And the consequences of that choice is jail time.
I won’t pretend to know what God’s consequences will be for not choosing to live by His rules, but I’m sure there WILL be consequences. How can there not?
So honestly, who cares what my opinion is? Who cares if I disagree with a gay person’s decision and/or lifestyle. It’s ultimately none of my business how that person lives his/her life as it’s none of that person’s business how I live my life. WHO CARES WHAT ANYONE DOES BEHIND CLOSED DOORS.
I think my biggest beef with this whole legalizing a gay union (because I REFUSE to call it marriage – marriage belongs to HETEROSEXUALS), is that the Supreme Court turned my voice, my vote, null and void. They spoke FOR the people. They completely ignored the constitution, the states’ rights and basically said, “Fuck you” to everyone and made our decision for us.
They put on their emperor’s crowns and simply made a decision for everyone.
And the scariest part? This is just the beginning. The ice has been broken. Because now that they’ve done it this once, it will that much easier to do again. And again. And again. And before long? We will become a nation of robots that are TOLD what to do, how to live and how to think. And if we dare color outside the lines, WE WILL BE PUNISHED.
And the end begins …
I don’t want to scare anyone, or sound like some crazed religious person, but now would be a good time to start thinking about the afterlife. Because it’s all downhill from here and Christ WILL come back – are you ready? And I know what you’re thinking, “you’re crazy. Whatever.” What if my beliefs are right?
What if?
And let’s not be naive and think this decision, this turning stone, stops here. Guess what’s next?
Pedophiles want same rights as homosexuals
Using the same tactics used by “gay” rights activists, pedophiles have begun to seek similar status arguing their desire for children is a sexual orientation no different than heterosexual or homosexuals.
Critics of the homosexual lifestyle have long claimed that once it became acceptable to identify homosexuality as simply an “alternative lifestyle” or sexual orientation, logically nothing would be off limits.
“Gay” advocates have taken offense at such a position insisting this would never happen. However, psychiatrists are now beginning to advocate redefining pedophilia in the same way homosexuality was redefined several years ago.
Van Gijseghem, psychologist and retired professor of the University of Montreal, told members of Parliament, “Pedophiles are not simply people who commit a small offense from time-to-time but rather are grappling with what is equivalent to a sexual orientation just like another individual may be grappling with heterosexuality or even homosexuality.”
He went on to say, “True pedophiles have an exclusive preference for children, which is the same as having a sexual orientation. You cannot change this person’s sexual orientation. He may, however, remain abstinent.”
When asked if he should be comparing pedophiles to homosexuals, Van Gijseghem replied, “If, for instance, you were living in a society where heterosexuality is proscribed or prohibited and you were told that you had to get therapy to change your sexual orientation, you would probably say that that is slightly crazy. In other words, you would not accept that at all. I use this analogy to say that, yes indeed, pedophiles do not change their sexual orientation.”
The ripple effect begins.
And before you pooh-pooh this “ridiculious notion” away, consider this:
This article from the Greeley Gazette was originally published in 2011. But now, there’s actually a constitutional argument that can be made in its favor.
And did anyone think gay unions would be legal in every state 30 years ago?
And if you’re interested in what Christianity has to say about homosexuality, please watch the following videos: Teaching: Christian’s View on Homosexuality – Parts One / Two, Three / Four, Five / Six.
The slippery slope just got a whole lot slippier.
By: Patrick Girouard,
on 6/26/2015
By: Julia Callaway,
on 3/4/2015
Dred Scott, an African-American slave, appealed to the Supreme Court for his freedom based on having been brought by his owners to live in a free territory. Chief Justice Roger B. Taney, writing for the majority, wrote that persons of African descent could not be, nor were ever intended to be, citizens under the US Constitution, and thus the plaintiff Scott was without legal standing to file a suit.
The post Abraham Lincoln, Chief Justice Roger B. Taney, and the Dred Scott Case appeared first on OUPblog.
By: Molly Grote,
on 7/20/2014
The recent Hobby Lobby decision, which ruled that corporations with certain religious beliefs were no longer required to provide insurance that covers contraception for their female employees — as mandated by Obamacare — hinged on a curious piece of legislation from 1993. In a law that was unanimously passed by Congress and signed by President Clinton, the Religious Freedom Restoration Act (RFRA) stated that “Government shall not substantially burden a person’s exercise of religion.” The intention of RFRA was to offer an opportunity for religious people to challenge ordinary laws, state or federal, that had some adverse impact on their faith. The RFRA was a direct response to a case three years earlier, when the Supreme Court decided that laws that applied to everybody were acceptable even if they burdened a religious community. RFRA was Congress’ scream of protest to the Supreme Court’s jurisprudence.
By passing the RFRA in 1993, Congress was trying to steal the Supreme Court’s thunder. It was not fixing physical infrastructures; it was fixing a fellow branch of government. It was not over-ruling what it considered to be a faulty judicial reading of its own statutes; it was changing an interpretation of the Constitution itself. But isn’t the Court, for better or worse, the ultimate authority on the First Amendment? Didn’t the principle of separation of powers prevent the legislative branch from amending, by mere majority vote within its own chambers, the Constitution as understood by the justices at any given time?
Ruth Bader Ginsburg, US Supreme Court Justice. Collection of the Supreme Court of the United States. Photographer: Steve Petteway. Public Domain via Wikimedia Commons.
Indeed, the Supreme Court went on to strike down RFRA in 1997, but only in part. It ruled that the states were not covered by RFRA’s change, but that the federal government was. This provided the opening for the Hobby Lobby decision, where several for-profit closely held corporations sought to defeat a federal regulation about contraception that applied generally to businesses, but offended their own belief systems.
Most discussion of Hobby Lobby, including even Justice Ginsburg’s dissent, has flexibly adapted to the idea that RFRA is constitutional, despite its extraordinary usurpation of judicial power. Her dissent correctly points out that her colleagues in the majority go even further than Congress in permitting religious belief to trump democratically passed legislation. Yes: the majority went much too far in holding that a corporation can “believe” anything or that free exercise rights are violated even when the central beliefs or practices of the religious are not directly implicated; but far worse was its acceptance, without discussion, of Congress’s power grab under RFRA. And the dissents doubled down on that departure from firm and fine traditions we call separation of powers.
Two examples of flexibility, however otherwise opposed, do not add up to the uncompromising defense of our Constitution needed at all times and perhaps especially now. The Supreme Court needed intransigently to re-assert its own power as a separate branch of government. Hobby Lobby’s attempt to veto part of Obamacare that offended its “corporate faith” would and should have been shut down immediately. Our Constitutional system of checks and balances required a clear statement. The Court, on both sides of Hobby Lobby, gave us the ambiguities that muddy the waters when compromise replaces principle.
Richard H. Weisberg, professor of Constitutional Law at Cardozo Law School, is the author of In Praise of Intransigence: The Perils of Flexibility.
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By: DanP,
on 6/24/2014
To paraphrase the Bard, the course of class arbitration never did run smooth. Ever since its inception in the early 1980s and 1990s, the development of class arbitration has been both complicated and controversial. For example, in 2003, the US Supreme Court decision in Green Tree Financial Corp. v. Bazzle, was read as providing implicit approval of class arbitration and resulted in the massive expansion of the procedure across the country. Seven years later, the Court took the opposite tack and decided to curtail the procedure with its opinion in Stolt-Nielsen S.A. v. Animal Feeds International Corp., which was followed by equally problematic decisions in AT&T Mobility LLC v. Concepcion, Oxford Health Plans LLC v. Sutter, and American Express Co. v. Italian Colors Restaurant.
One result of the Supreme Court’s recent activity has been the diminution in the number of class arbitrations that are being filed with arbitral institutions. However, the Court’s decisions have done little to silence either the policy debates or the litigation surrounding class arbitration. Indeed, approximately 80 federal court opinions and 40 state court opinions have been rendered on this subject in the last 12 months alone, which suggests that the United States’s struggle with large-scale arbitration is far from over.
Most observers recognize that the debate about class arbitration in the United States is closely tied to concerns about judicial class actions. However, other countries are beginning to expand the number and type of mechanisms used to provide relief for large-scale legal injuries at precisely the same time that the United States is pulling back from class actions and arbitrations. These other legal systems have created a variety of means of addressing mass injuries, including several types of large-scale arbitration. Furthermore, efforts to adopt large-scale arbitration in other jurisdictions typically do not generate the same type of animosity and opposition that is seen in the United States. This phenomenon suggests that there is much that the United States can learn by studying the mechanisms used in these other legal systems.
One jurisdiction that has come out strongly in favor of large-scale arbitration is Brazil, which has created a constitutional right to large-scale arbitration in labor disputes. The Brazilian legislature is also currently contemplating a bill (No. 5139/2009) that would extend the right to large-scale arbitration to other types of mass legal disputes. In many ways, Brazilian acceptance of class and collective arbitration is unsurprising, since Brazil also embraces various types of large-scale litigation. However, US courts and policymakers could find it useful to consider the way in which Brazil differentiates between matters that are appropriate for court and matters that are appropriate for arbitration, since some of these analyses may also be relevant in the United States.
Spain also provides for large-scale arbitration, although the Spanish procedure is statutory rather than constitutional in nature. The Spanish approach involves a non-representative collective procedure that addresses many of the concerns commonly enunciated by respondents, particularly with respect to the issue of consent. Because the Spanish statute on collective arbitration is limited to consumer disputes, the legislature was able to tailor the mechanism narrowly to suit the needs of the participants. This type of subject-specific approach could prove instructive to those in the United States who are concerned about the problems associated with a trans-substantive procedure or with questions of consent.
Some commentators have suggested that class arbitration in the United States has experienced difficulties because the procedure was created through non-democratic (i.e. judicial) means rather than through legislative measures. This theory would discount the usefulness of the Brazilian and Spanish procedures because they were implemented through democratic processes. However, other countries have adopted large-scale arbitration through judicial action and have nevertheless avoided the kinds of ongoing difficulties seen in the United States.
The Republic of Colombia was the first jurisdiction outside the United States to adopt large-scale arbitration through judicial means. Both the Supreme Court of Justice and the Constitutional Court have suggested that class claims are arbitrable, and at least one arbitral tribunal is known to have rendered an award in a group action. Although other jurisdictions, most notably Canada, have declined to adopt class arbitration through judicial means, Colombia’s acceptance of class arbitration suggests that the United States is not an outlier in terms of the way in which class arbitration has developed.
This conclusion is borne out by the fact that several other legal systems have authorized large-scale arbitration through judicial measures. For example, the German Federal Court of Justice authorized arbitration of shareholder disputes in 2009, after having decided against doing so in 1996. The earlier decision was based on the belief that the legislature should be the one to determine whether these types of issues were arbitrable. However, when the democratically elected officials failed to take action one way or another, the judicial branch decided to step in. As a result of the 2009 decision, the German Institution of Arbitration (DIS) created its Supplementary Rules for Corporate Law Disputes (DIS-SRCoLD), which allow for a unique type of non-representative collective arbitration. Although the rules are aimed primarily at so-called “traditional” multiparty disputes (i.e., those that involve only a handful of participants), some of the procedural elements could be usefully adopted in matters involving larger numbers of parties.
Large-scale proceedings have also been adopted by arbitral tribunals acting without the guidance of a court. The most well-known example of this phenomenon was seen in the context of investment arbitration. In 2011, the arbitral tribunal in Abaclat v. Argentine Republic allowed 60,000 Italian bondholders to join together and bring their claims in a single proceeding. The resulting procedure has been characterized as “mass” arbitration rather than class arbitration, since it contains both representative and aggregative features. Although no other mass arbitration has yet been seen in the investment realm, the award in Abaclat was cited with approval by the tribunal in Ambiente Ufficio v. Argentine Republic, which involved ninety claimants.
As the preceding suggests, large-scale arbitration takes many forms and arises in many different ways. Although the US Supreme Court has attempted to curtail one particular mechanism (class arbitration), there are a multitude of other means of allowing large numbers of similarly-situated parties to join together to assert their claims. Indeed, parties in the United States have already begun to experiment with various types of non-class arbitration. For example, some parties have successfully brought large-scale, non-representative (collective) arbitrations, while other parties have resorted to filing large numbers of bilateral arbitrations simultaneously so as to drive respondents to the settlement table. These techniques underscore the need for scholars, policy-makers and practitioners to continue to debate and discuss the various issues relating to large-scale arbitration in the United States. In so doing, a comparative analysis would be beneficial, since the best solution to these problems may be found in procedures developed in other jurisdictions.
Stacie Strong is Associate Professor of Law at the University of Missouri School of Law. She is the author of Class, Mass, and Collective Arbitration in National and International Law and Research and Practice in International Commercial Arbitration: Sources and Strategies.
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By: Julia Callaway,
on 3/9/2014
For 20 years, 14 of those in England, I’ve been giving lectures about the social power afforded to dictionaries, exhorting my students to discard the belief that dictionaries are infallible authorities. The students laugh at my stories about nuns who told me that ain’t couldn’t be a word because it wasn’t in the (school) dictionary and about people who talk about the Dictionary in the same way that they talk about the Bible. But after a while I realized that nearly all the examples in the lecture were, like me, American. At first, I could use the excuse that I’d not been in the UK long enough to encounter good examples of dictionary jingoism. But British examples did not present themselves over the next decade, while American ones kept streaming in. Rather than laughing with recognition, were my students simply laughing with amusement at my ridiculous teachers? Is the notion of dictionary-as-Bible less compelling in a culture where only about 17% of the population consider religion to be important to their lives? (Compare the United States, where 3 in 10 people believe that the Bible provides literal truth.) I’ve started to wonder: how different are British and American attitudes toward dictionaries, and to what extent can those differences be attributed to the two nations’ relationships with the written word?
Constitution of the United States of America. Public Domain via Wikimedia Commons.
Our constitutions are a case in point. The United States Constitution is a written document that is extremely difficult to change; the most recent amendment took 202 years to ratify. We didn’t inherit this from the British, whose constitution is uncodified — it’s an aggregation of acts, treaties, and tradition. If you want to freak an American out, tell them that you live in a country where ‘[n]o Act of Parliament can be unconstitutional, for the law of the land knows not the word or the idea’. Americans are generally satisfied that their constitution — which is just about seven times longer than this blog post — is as relevant today as it was when first drafted and last amended. We like it so much that a holiday to celebrate it was instituted in 2004.
Dictionaries and the law
But with such importance placed on the written word of law comes the problem of how to interpret those words. And for a culture where the best word is the written word, a written authority on how to interpret words is sought. Between 2000 and 2010, 295 dictionary definitions were cited in 225 US Supreme Court opinions. In contrast, I could find only four UK Supreme court decisions between 2009 and now that mention dictionaries. American judicial reliance on dictionaries leaves lexicographers and law scholars uneasy; most dictionaries aim to describe common usage, rather than prescribe the best interpretation for a word. Furthermore, dictionaries differ; something as slight as the presence or absence of a the or a usually might have a great impact on a literalist’s interpretation of a law. And yet US Supreme Court dictionary citation has risen by about ten times since the 1960s.
No particular dictionary is America’s Bible—but that doesn’t stop the worship of dictionaries, just as the existence of many Bible translations hasn’t stopped people citing scripture in English. The name Webster is not trademarked, and so several publishers use it on their dictionary titles because of its traditional authority. When asked last summer how a single man, Noah Webster, could have such a profound effect on American English, I missed the chance to say: it wasn’t the man; it was the books — the written word. His “Blue-Backed Speller”, a textbook used in American schools for over 100 years, has been called ‘a secular catechism to the nation-state’. At a time when much was unsure, Webster provided standards (not all of which, it must be said, were accepted) for the new English of a new nation.
American dictionaries, regardless of publisher, have continued in that vein. British lexicography from Johnson’s dictionary to the Oxford English Dictionary (OED) has excelled in recording literary language from a historical viewpoint. In more recent decades British lexicography has taken a more international perspective with serious innovations and industry in dictionaries for learners. American lexicographical innovation, in contrast, has largely been in making dictionaries more user-friendly for the average native speaker.
The Oxford English Dictionary, courtesy of Oxford Dictionaries. Do not use without permission.
Local attitudes: marketing dictionaries
By and large, lexicographers on either side of the Atlantic are lovely people who want to describe the language in a way that’s useful to their readers. But a look at the way dictionaries are marketed belies their local histories, the local attitudes toward dictionaries, and assumptions about who is using them. One big general-purpose British dictionary’s cover tells us it is ‘The Language Lover’s Dictionary’. Another is ‘The unrivalled dictionary for word lovers’.
Now compare some hefty American dictionaries, whose covers advertise ‘expert guidance on correct usage’ and ‘The Clearest Advice on Avoiding Offensive Language; The Best Guidance on Grammar and Usage’. One has a badge telling us it is ‘The Official Dictionary of the ASSOCIATED PRESS’. Not one of the British dictionaries comes close to such claims of authority. (The closest is the Oxford tagline ‘The world’s most trusted dictionaries’, which doesn’t make claims about what the dictionary does, but about how it is received.) None of the American dictionary marketers talk about loving words. They think you’re unsure about language and want some help. There may be a story to tell here about social class and dictionaries in the two countries, with the American publishers marketing to the aspirational, and the British ones to the arrived. And maybe it’s aspirationalism and the attendant insecurity that goes with it that makes America the land of the codified rule, the codified meaning. By putting rules and meanings onto paper, we make them available to all. As an American, I kind of like that. As a lexicographer, it worries me that dictionary users don’t always recognize that English is just too big and messy for a dictionary to pin down.
A version of this article originally appeared on the OxfordWords blog.
Lynne Murphy, Reader in Linguistics at the University of Sussex, researches word meaning and use, with special emphasis on antonyms. She blogs at Separated by a Common Language and is on Twitter at @lynneguist.
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By: Lauren,
on 6/27/2011
The Supreme Court is using dictionaries to interpret the Constitution. Both conservative justices, who believe the Constitution means today exactly what the Framers meant in the 18th century, and liberal ones, who see the Constitution as a living, breathing document changing with the times, are turning to dictionaries more than ever to interpret our laws: a new report shows that the justices have looked up almost 300 words or phrases in the past decade. Earlier this month, according to the New York Times, Chief Justice Roberts consulted five dictionaries for a single case.
Even though judicial dictionary look-ups are on the rise, the Court has never commented on how or why dictionary definitions play a role in Constitutional decisions. That’s further complicated by the fact that dictionaries aren’t designed to be legal authorities, or even authorities on language, though many people, including the justices of the Supreme Court, think of them that way. What dictionaries are, instead, are records of how some speakers and writers have used words. Dictionaries don’t include all the words there are, and except for an occasional usage note, they don’t tell us what to do with the words they do record. Although we often say, “The dictionary says…,” there are many dictionaries, and they don’t always agree.
As for the justices, they aren’t just looking up technical terms like battery, lien, and prima facie, words which any lawyer should know by heart. They’re also checking ordinary words like also, if, now, and even ambiguous. One of the words Chief Justice Roberts looked up last week in a patent case was of. These are words whose meanings even the average person might consider beyond dispute.
Sometimes dictionary definitions inform landmark decisions. In Washington, DC, v. Heller (2008), the case in which the high Court decided the meaning of the Second Amendment right to keep and bear arms, both Justice Scalia and Justice Stevens checked the dictionary definition of arms. Along with the dictionaries of Samuel Johnson and Noah Webster, Justice Scalia cited Timothy Cunningham’s New and Complete Law Dictionary (1771), where arms is defined as “any thing that a man wears for his defence, or takes into his hands, or useth in wrath to cast at or strike another” (variations on this definition occur in English legal texts going back to the 16th century). And Justice Stevens cited both Samuel Johnson’s definition of arms as “weapons of offence, or armour of defence” (1755) and John Trusler’s “by arms, we understand those instruments of offence generally made use of in war; such as firearms, swords, &c.” (1794).
The much less publicized case of Barnhart v. Peabody Coal Co. (2003) turned in part on the meaning of a single word, shall. In this case the justices all agreed that the word shall in one particular section of the federal Coal Act functions as a command. What they disagreed about was just how much latitude the use of shall permits.
In Peabody Coal the Court’s majority decided that s
By: Lauren,
on 4/18/2011
Little more than a year after the January 21, 2010 ruling by the U.S. Supreme Court in the Citizens United v Federal Elections Commission, it is already apparent that the effects of the ruling are widespread, contaminate the democratic processes, and could be long-lasting. Because the effects of the ruling on the 2010 election campaign were significant, the potential effects on public health could be pervasive. Finding new ways to undo its pernicious consequences is an important public health goal.
The Ruling
The Citizens United ruling overthrew previous laws and court rulings ranging from the early 1900’s to parts of the 2002 Bipartisan Campaign Reform Act, sometimes known as the McCain-Feingold law. The Court ruled that previous laws and regulations were so restrictive as to prohibit free speech. The ruling gave corporations the right to use unlimited amounts of money directly from the corporation’s treasury for independent election campaign advocacy. The results of the decision were immediately revealed in the November 2010 mid-term U.S. Congressional election campaign and its aftermath.
The Relevance of the Court’s Ruling to Public Health
Corporate wealth gives companies the special ability to develop and test communications that frame issues, appeal to emotions, provide inaccurate and incomplete information, and increase the cognitive availability of ideas. This allows them to take advantage of voters’ decision-making vulnerabilities. Thus, corporate campaign election funds could be directed into tailored messages for or against candidates who take positions on a variety of public health issues ranging from abortion, coal-fired power plants, menu labeling, and worker health, to budget appropriations and other aspects of health that are vulnerable to market forces. Corporate lobbyists could pressure elected officials based on their contributions to the official’s campaign as a means of gaining legislative favors. Donations from insurance and pharmaceutical corporations in the 2008 election cycle seem to have gained them access and influence during health care financing reform. After the 2010 election Representative Issa (R-Calif.), chair of the House Oversight and Government Affairs Committee, reportedly asked 150 trade associations, corporations and think tanks to provide a wish list of public health, environmental and other public protections they wanted eliminated. The Court’s ruling in Citizens United has raised concerns about the government’s ability to regulate the commercial speech of tobacco and other corporations in advertising their products.
Follow the money
More money ($4 billion) was spent on the 2010 congressional elections by political parties and outside groups than in any previous midterm election cycle. According to reports by Public Citizen, in the 2010 election independent organizations that were the direct beneficiaries of corporate largess after the Citizens United ruling increased spending more than 400% over the 2006 mid-term election. About 54% of them disclosed anything about their sources. The groups that did not disclose information about sources spent 46% of the total $294 million spent by outside organizations on the election. In 60 of the 75 Congressional elections in which the seat was won by a candidate from a party different than the incumbent, the spending by outside organizations favored the winner. In the Senate election, winners had a 7-to-1 advantage in spending by outside organizations. The corporate funding ties and the political expenditures of some of the most influential of the independent organizations are known.
Campaign finance and disclosure laws in mo
By: Lauren,
on 4/5/2011
A decade ago, Betty Dukes, a Wal-Mart greeter (one of the folks in blue vests who welcome you to the store), filed a lawsuit against her employer. She alleged that her supervisors had treated her harshly and, once she complained, had retaliated by demoting her. Rather than sue Wal-Mart on her own, she joined with six other women who also (allegedly) suffered discrimination at the company. These women included one who had been passed over for promotion, one who could not transfer to day shifts, and one who had been sexually harassed by coworkers. Together, these women claimed to represent all women at Wal-Mart, and asked for damages on all their behalf.
Last week, the Supreme Court heard oral argument on the case. The media has covered Wal-Mart v. Dukes as a gender discrimination case. And it’s true that the underlying cause of action is a violation of Title VII, the United States’s antidiscrimination statute. But the issue the Court heard is a procedural one: can the women who sued Wal-Mart bring their case as a class action? If they can, the huge damages at stake will likely induce Wal-Mart to settle on generous terms. (No company, even one as big as Wal-Mart, wants to risk a billion-dollar verdict.) If they can’t, then each woman must bring her case on her own. And while some women’s discrimination claims may be worth enough to interest a lawyer, others will not. Since the procedural question could make or break this case, it has taken on the same significance as if the Court were ruling on whether companies are allowed to discriminate against women.
So what is a class action? It’s a method of aggregating a large number of claims into a single lawsuit. Under Federal Rule of Civil Procedure 23 — the rule that authorizes class actions — the lawsuit begins with an individual plaintiff. If she can convince the court her claim is enough like those of the people she seeks to represent, the court certifies the case as a class action. Once the class is certified, the plaintiff offers proof of her individual claim at trial. If she wins, the whole class wins; but if she loses, then the whole class loses with her.
The Supreme Court heard arguments about whether the women suing Wal-Mart had demonstrated they met two of the requirements of Rule 23.
First, it considered whether the women met the “commonality” requirement. Commonality calls for every class action to have a common question of law or fact that, if answered, moves the case forward. The requirement seems simple, but can be hard to meet for a diverse group of 1.6 million women. (Hence the references to the Dukes class being “too big to certify.”) The women argued that their common question was whether Wal-Mart’s corporate culture was “vulnerable” to sex discrimination, and whether allowing managers “excessive subjectivity” in personnel decisions ended up discriminating against women.
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By: Lauren,
on 4/4/2011
It is noteworthy when eight ideologically diverse justices of the U.S. Supreme Court all decide a First Amendment case the same way. Thus, Snyder v. Phelps is a noteworthy decision. The Westboro Baptist Church is well-known for its demonstrations at military funerals. Indeed, the Westboro Church, led by (and, some say, principally consisting of) the Phelps family, has the rare distinction of having been denounced by both Jon Stewart and Mike Huckabee.
Members of the Westboro Church demonstrated near the Maryland funeral of Marine Lance Corporal Matthew Snyder, killed in action in Iraq. Mr. Albert Snyder, the corporal’s father, sued the Westboro Church and its members for various torts including intentional infliction of emotional distress. Mr. Snyder prevailed in a jury trial. In invalidating the jury’s verdict, the U.S. Supreme Court, except for Justice Alito, said that the Church and its members were exercising their free speech rights in a constitutionally-protected fashion.
As the Court described the facts of the case, it is hard to disagree with this conclusion. According to those facts, the Westboro Church and its members told the local authorities of their intention to demonstrate at the time of the Snyder funeral and “complied with police instructions in staging their demonstration.” The Westboro demonstrators stayed “behind a temporary fence…approximately 1,000 feet from the church where the funeral was held.” The demonstrators went neither to the church where the funeral was held nor to the cemetery, and were nonviolent throughout their demonstration.
On these facts, the message conveyed by the Westboro Church is obnoxious (“God Hates the USA/Thank God for 9/11,” “Thank God for IEDs,” “Thank God for Dead Soldiers”) but constitutionally protected.
The problem is: Those were not all the facts of the case. Only Justice Alito confronted this reality. After the funeral, a member of the Westboro Church posted on the Church’s website a hate-filled message aimed specifically at the Snyder family. Among its other assertions, this website message accused Mr. and Mrs. Snyder of having “raised [Matthew] for the devil.” The Snyders, the web message continued, “taught Matthew to defy his Creator, to divorce, and to commit adultery.” Then the Snyders sent their son “to fight for the United States of Sodom, a filthy country that is in lock step with his evil, wicked, and sinful manner of life.”
Media accounts of the Court’s decision have largely ignored this web-based attack on the Snyders. Media accounts have also largely ignored the eight Justices’ acknowledgment that, if this web-based attack is considered, Westboro and its members may indeed have stepped over the line, forfeiting First Amendment protection by this vicious internet attack on the Snyder family. As Chief Justice Roberts put it in a footnote to his majority opinion, this “Internet posting may raise distinct issues in this context,” issues which the Court declined to consider because of the failure of the Snyders to press this point in their petition to the high court.
Justice Alito disagreed with his colleagues in his willingness to confront the facts of the case as they were presented to the jury: Westboro and
By: Lauren,
on 1/31/2011
Today is a very important day in American history, the anniversary of when the 13th Amendment to the Constitution was passed by Congress, that which formally abolished slavery in the U.S. in 1865. The Thirteenth provides that “Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.” It was ratified later that year on December 6. In honor of this anniversary, we offer an excerpt from The Oxford Guide to United States Supreme Court Decisions, which provides an overview of the Civil Rights Cases.
Civil Rights Cases, 109 U.S. 3 (1883), submitted on the briefs 7 November 1882, argued 29 March 1883, decided 15 October 1883 by vote of 8 to 1; Bradley for the Court, Harlan in dissent.
Few decisions better illustrate the Supreme Court’s early inclination to interpret narrowly the Civil War Amendments than the Civil Rights Cases. There the Court declared unconstitutional provisions of the Civil Rights Act of 1875 that prohibited racial discrimination in inns, public conveyances, and places of public amusement. The decision curtailed federal efforts to protect African-Americans from private discrimination and cast constitutional doubts on Congress’s ability to legislate in the area of civil rights, doubts that were not completely resolved until enactment of the Civil Rights Act of 1964.
The Civil Rights Cases presented two conflicting views of the Thirteenth and Fourteenth Amendments. The conservative view saw the amendments in narrow terms: the Thirteenth Amendment simply abolished slavery; the Fourteenth granted the freed people citizenship and a measure of relief from state discrimination. The more radical view believed the amendments helped secure to the freed people and others all rights of free people in Anglo-American legal culture. Moreover, the amendments gave the national government authority to protect citizens against both state and private deprivations of rights.
Justice Joseph P. Bradley’s majority opinion rejected the more radical interpretation of the new amendments. He held that the Fourteenth Amendment only prohibited state abridgement of individual rights. In Bradley’s view the 1875 Civil Rights Act was an impermissible attempt by Congress to create a municipal code regulating the private conduct of individuals in the area of racial discrimination. He asserted in dicta that even private interference with such rights as voting, jury service, or appearing as witnesses in state court were not within the province of Congress to control. An individual faced with such interference had to look to state government for relief. Bradley also rejected the contention that the Thirteenth Amendment allowed Congress to pass the 1875 legislation, declaring that denial of access to publ
By: Lauren,
on 1/21/2011
This Saturday is the 38th anniversary of Roe v. Wade. Believe me when I say that I could write for days on the significance of the decision, and even more about recent news and the current state of reproductive rights. If I tried, I could probably recount verbatim the conversation I once had with Sarah Weddington (the lawyer who argued Roe at the young age of 26!). But I won’t. For now, I will simply offer the following excerpts from Ourselves Unborn: A History of the Fetus in Modern America by Sara Dubow. To those of you who celebrate it, I wish you the happiest of Roe Days. –Lauren Appelwick, Blog Editor
For most of the twentieth century, abortion was simultaneously proscribed and practiced. In 1953, Alfred Kinsey reported that nine out of ten premarital pregnancies ended in abortion and that 22 percent of married women had had an abortion while married. In 1955, the continuing demand for abortion motivated Planned Parenthood’s medical director Dr. Mary S. Calderone to organize a conference featuring women testifying about the hardships of dangerous and unwanted pregnancies, and physicians advocating for liberalized abortion restrictions. Whereas the American Medical Association (AMA) had led the nineteenth-century movement to criminalize abortion, it was now in the vanguard in an incipient movement to legalize it. In 1960, physicians at the AMA annual convention argued that laws against abortion were unenforceable, thus undesirable, and in 1962 the American Law Institute (ALI) endorsed the liberalization of abortion laws.
* * *
Not satisfied with reforms that kept the power to grant or refuse an abortion in the hands of doctors and hospital boards, grassroots activists began advocating for the repeal of all abortion restrictions. In 1969, the National Association for Repeal of Abortion Laws (NARAL) was founded at the First National Conference on Abortion Laws, and the radical feminist group Redstockings held the first speak-out on abortion. In 1970, the New York state legislature legalized abortion, an act endorsed by Republican governor John D. Rockefeller. In 1971, a national poll showed that more than half of Americans favored legalizing abortion, the American Bar Association issued a statement supporting the legalization of abortion up to the twentieth week of pregnancy, and the Supreme Court heard the first round of oral arguments in Roe v. Wade. On January 22, 1973, the Supreme Court ended the nearly century-long prohibition against abortion in the United States. In his majority opinion, Justice Harry Blackmun made clear the Court’s desire to remove the abortion question from the abstract realms of philosophy, theology, and morality and place it in the concrete realm of law:
By: Lauren,
on 12/6/2010
Like most Connecticut residents, I watched with a mixture of fascination and horror the trial of Steven J. Hayes. Hayes is one of two defendants accused of the particularly gruesome home invasion murders in July, 2007 in suburban Cheshire, Connecticut. Hayes has been found guilty; the jury has sentenced Hayes to receive the death penalty.
Like everyone who followed this trial, I have both admired and sympathized with Dr. William Petit, Jr. whose wife and two daughters were brutalized and killed by Hayes. Unsurprisingly, Dr. Petit wanted the death penalty in this case as would I had I been in Dr. Petit‘s position. So compelling have been the facts exposed at Hayes’ trial that many normally outspoken opponents of the death penalty have remained silent as the jury assigned that penalty to Hayes for his truly evil crimes.
During the Hayes trial, I also spent much time thinking about Ricardo Beamon. Mr. Beamon too was killed in July, 2007 in Connecticut. Mr. Beamon had led a troubled inner-city life which he had turned around by founding, in the words of the New Haven Register, a “high-end urban clothing” store. Mr. Beamon, who left a two year old daughter, was killed in a robbery. In a plea agreement, Mr. Beamon’s murderer agreed to a twenty year prison sentence. Mr. Beamon’s murder has occasioned relatively little public attention.
Undoubtedly, distinctions can be drawn between these two cases. However, the similarities are great as well. Both the members of the Petit family and Mr. Beamon are gone, leaving their respective loved ones to grieve for their undeserved losses.
In this context, I have been thinking as well of my nephew Brandon who was killed last summer by a negligent car driver. I am angry about the loss inflicted on us. If I could, I would like to take matters into my own hands. Instead, he will receive a prison sentence and then resume his life. Our loss is no less because the individual who killed Brandon acted negligently, rather than intentionally.
Under these circumstances, I cannot say that we inflict the ultimate penalty of death in a principled fashion.
One other family member has influenced me as I mull these issues, my late uncle, Justice Seymour F. Simon of the Illinois Supreme Court. Seymour was a consistent dissenter in his court’s death penalty cases. The legal basis for his dissent was, at one level, quite technical, namely, that the Illinois death penalty statute permits excessive prosecutorial discretion and violates the separation-of-powers provision of the Illinois state constitution.
However, Seymour came to be a profound critic of capital punishment. Seymour did not oppose the death penalty out of a soft-minded sympathy for those who commit horrible crimes. Rather, sitting atop a large state judicial system, he became convinced that we inflict the death penalty in an unprincipled manner.
I suspect that, when she grows up, Ms. Beamon will agree.
I can’t oppose the death penalty in all cases. Capital punishment was appropriate at Nuremberg. The Israelis were right to hang Adolf Eichmann. If we catch Osama bin Laden, I would favor, in Abe Lincoln’s famous phrase, hanging him like Haman “upon the gallows of [his] own building.”
But short of these cases,
By: Lauren,
on 10/18/2010
Apple’s latest iPhone app will clean up your text messages and force you to brush up your French, or Spanish, or Japanese, all at the same time.
This week the U.S. Patent and Trademark Office approved patent 7,814,163, an Apple invention that can censor obscene or offensive words in text messages whie doubling as a foreign-language tutor with the power to require, for example, “that a certain number of Spanish words per day be included in e-mails for a child learning Spanish.”
Parents are sure to love this multitasker, which puts an end to teen-age sexting while also checking homework. In the spirit of the Supreme Court’s 1978 ban on George Carlin’s “Seven Dirty Words You Can’t Say on TV,” Apple’s app will shrink their children’s stock of English expletives—or at least render them unprintable—while setting the kids on the path toward bilingualism, or at least a passing grade in French. This new invention from Apple is two things in one: Mary Poppins and the Rosetta Stone, or, for those parents of a certain age, it’s a floor wax and a dessert topping.
Of course, when Apple closes one door, it opens another. Apple may cut off access to bad words in English, but it then redirects that lexical energy in the profitable direction of foreign-language learning. Teens may find their texting vocabulary circumscribed, but if children’s grades go down, Apple’s iPhone censor lets parents activate a tool that “can require a user . . . to send messages in a foreign language, to include certain vocabulary words, or to use proper spelling, grammar and/or punctuation based on the user’s defined skill level. This could aide [sic] the user in more quickly improving his or her fluency of a language.”
As if Steve Jobs wasn’t already intruding enough into people’s wallets and their private lives, the iPhone device will not only watch your language, it will require you to correct your mistakes and rat you out if you screw up. The app doesn’t just make you do your homework, it even tells you when to do it. According to the Apple patent,
The control application may require a user during specified time periods to send messages in a designated foreign language, to include certain designated vocabulary words, or to use proper designated spelling, designated grammar and designated punctuation and like designated language forms based on the user’s defined skill level and/or designated language skill rating. If the text-based communication fails to include the required language or format, the control application may alert the user and/or the administrator/parent of the absence of such text.
The control application may require the user to rewrite the text-based communication in the required language, to include the required vocabulary words and/or to correct spelling and punctuation errors. The control application may require the user to locate the error. If the user cannot correct the error, the control application may provide hints as to the location of the error by first indicating the paragraph, then, the line and, finally, the exact location.
As figure 10 from Apple’s patent application shows (see below), writers of objectionable texts
By: Debbie Reese,
on 9/20/2010
Taking a quick moment out of preparing for today's classes by pointing to a neat intersection between the readings for Intro to American Indian Studies, and, the Politics of Children's Literature (both are courses I'm teaching this semester at the University of Illinois).
For Intro to AIS, we're studying Wallace Coffey and Rebecca Tsosie's article, "Rethinking the Tribal Sovereignty Doctrine"published in the Stanford Law and Policy Review. Here's the parts that intersects with the chapter we're discussing in the children's lit course. Coffey and Tsosie write:
A prime example of the link between legal doctrine and the script that emerges from American history is the infamous "Doctrine of Discovery" that undergirds Marshall's understanding in Johnson v. McIntosh that Indian nations retain a mere "right of occupancy" on their lands while the European sovereigns perfected the balance of the fee simple simply upon "discovery and settlement." (122) Chief Justice John Marshall described Indian people asJust above that, they cite an opinion by Justice Rehnquist wherein he cites the 1965 Oxford History of the American People. In writing his opinion, Rehnquist relies on this passage:fierce savages, whose occupation was war, and whose subsistence was drawn chiefly from the forest. To leave them in possession of their country, was to leave the country of a wilderness; to govern them as a distinct people, was impossible, because they were as brave and as high spirited as they were fierce, and were ready to repel by arms every attempt on their independence. (123)
The Plains Indians... [were organized into units] of a few hundred souls, which might be seen in the course of its wanderings encamped by a watercourse with tipis erected; or pouring over the plain, women and children leading dogs and packhorses with the trailing travois, while gaily dressed braves loped ahead on horseback. They lived only for the day, recognized no property rights, robbed or killed anyone if they thought they could get away with it, inflicted cruelty within a qualm and endured torture without flinching. (120).What I wish to emphasize for now is "the link between legal doctrine and the script that emerges from American history" as I share (below) what we're reading in Perry Nodelman's The Pleasures of Children's Literature (p. 121):
[P]olitical ideologies almost always work to distribute power unequally among people in a society, and to justify the unequal distribution.Coffey and Tsosie are talking about legal cases in which American Indian tribes lost their land. They cite supreme court justices who find that Indians don't deserve their land because, the justices would have us believe, Indians were---and are---different and inferior.
By: Anastasia Goodstein,
on 6/8/2010
MTV says sorry for the swears (at this year's Movie Awards, some of which slipped by censors. Though with critics wondering if the event has lost all cultural and commercial relevance and viewership seeing a 13 percent drop from last year, FCC that... Read the rest of this post
By: shelf-employed,
on 3/22/2010
Alas, it's been a busy weekend, and I don't have anything prepared for Non-Fiction Monday, but I encourage everyone to check out this week's host site, Books Together.
She was also known for having no patience for lawyers who weren't prepared - you better not mess with Judge Sonia! Yet she was known for much more than this.I can't speak as to how the book flows in its Spanish translation.
By: Rebecca,
on 2/4/2010
Charles R. Macedo is a partner at Amster, Rothstein & Ebenstein LLP, and the author of
The Corporate Insider’s Guide to US Patent Practice, which provides a basic understanding of patent practice in the United States as it relates to both obtaining and enforcing patents. Macedo’s practice specializes in all facets of intellectual property law including patents, trademarks and copyrights. In the article below he shares advice for patent protection. Read his other OUPblog posts here. [FN: The author would like to acknowledge the assistance of Norajean McCaffrey and Marion Metelski in preparing this Blog entry]
From 1998 until about a year ago, the law on what type of inventions could be the subject of patent protection seemed pretty clear. If a claimed invention produced a “useful, concrete and tangible result”, the invention was deemed patent-eligible subject matter. Over the past few years, that settled law began to be questioned, and in 2008 the U.S. Court of Appeals for the Federal Circuit threw out that test, and invoked a different, more restrictive “machine-or-transformation” test. Last November, the Supreme Court heard arguments in Bilski v. Kappos, where the Supreme Court for the first time in decades is expected to clarify the standard for what processes will be deemed patent-eligible. In prior Oxford Blogs, I addressed some of the questions raised by the Justices at the oral arguments.
While we wait for a decision, life continues to move on, and difficult decisions need to be made on how to proceed with efforts to obtain patent protection in this area. To help guide potential patentees during this interim period, I have put together, with colleagues of mine at Amster, Rothstein & Ebenstein LLP, the following recommended interim steps to be implemented in patent prosecution involving business-related and computer-related inventions in order to minimize risk for the future and increase the likelihood of a patent issuing and ultimately being enforceable down the road.
As a general rule, if possible, it is best to conform to the PTO’s positions on patent-eligibility. By conforming to the PTO’s positions, an applicant is more likely to both expedite a patent application’s likelihood of issuance, and probably be within a safe harbor of what processes will ultimately be deemed patent-eligible.
*Include disclosure to tie the invention to a computer or other machine. For example, if the invention is related to a financial service product which is electronically traded, disclose the computer system used to electronically trade the product. If the invention is related to a product which requires a complex calculation, disclose the computer system that performs the calculation as well as the algorithm used in the calculation.
*Don’t claim software as software. Software can instead be claimed as programming stored on a computer readable medium that is run on one or more processors. Process claims which act on various parts of the computer syste
By: Rebecca,
on 11/19/2009
Charles R. Macedo is a partner at Amster, Rothstein & Ebenstein LLP, and the author of
Speed Dating is not the only issue that our nine Justices of the Supreme Court raised on November 9, 2009 to determine what types of processes should be entitled to “patent worthiness.” Justice Scalia wanted to know why, if the patent laws were intended to cover broad processes, weren’t there any patents filed in the 1800s relating to training horses.
At the time, as Justice Scalia rightly observed, the American economy was completely dependent on horses. In fact, during the late 19th Century commerce came to a standstill when approximately 99% of all horses in America contracted equine influenza. According to Greg Sabin’s February 13, 2009 article, “Nightmare on Wall Street: 4 Other Times Our Economy Tanked“, at the height of the pandemic “as many as 20,000 businesses failed, a third of all railroads went bankrupt, and unemployment spiked to almost 15 percent.”
Not surprisingly, as Justice Scalia suggested, there were many U.S. Patents issued in the late 1800s that taught different methods of training or breaking horses:
* U.S. Patent No. 247,296, to G.W. Blake, entitled “Harness” (patented September 20, 1881);
* U.S. Patent No. 381,745, to H. C. Woodnutt, entitled “Device for Assisting in Training Horses” (patented April 24, 1888);
* U.S. Patent No. 453,727, to H. Sample, entitled “Apparatus for Treating or Taming Horses” (patented June 9, 1891);
* U.S. Patent No. 478,513, to C.C. Kelly, entitled “Apparatus for Training Animals” (patented July 5, 1892); and
* U.S. Patent No. 545,228, to J.W. Green, entitled “Horse-Breaking Apparatus” (patented August 27, 1895).
While admittedly none of these patents claimed a method of training or breaking a horse, they all obtained patent protection for such methods by claiming the apparatus to do it.
There are various explanations of why these patents claimed apparatus instead of methods:
* In the 1800s, most patents were drafted in the form of apparatus or system claims, and not method claims, although the law allowed for method claims in the form of “arts.”
* It was much easier to detect infringement of an apparatus that was sold than to detect a method of performing acts. Thus, not surprisingly, one would be less likely to invest in method claims.
* Perhaps more importantly, the law was in flux as to what type of method claims were available. For example it was not until 1909, in Expanded Metal Co. v. Bradford, 214 U.S. 366 (1909), that the Supreme Court made clear that patent eligible method claims did not merely need to have chemical transformations, but could also include mechanical transformations.
Indeed, when the 1952 Patent Act was adopted, the law was drafted to define patent-eligible methods broadly. See 35 U.S.C. § 100(b). Thus, perhaps Justice Scalia would find it interesting to note that since the Act was enacted, many patents have issued which claim methods of training animals (including horses):
* U.S. Patent No. 3,099,248, to J.K. Giles et al., entitled “Methods of Training Horses” (patented July 30, 1963) (claiming “a method of breaking and training horses preparatory to racing”);
* U.S. Patent No. 5,566,645, to T.H. Cole, entitled “Animal Training Method and Apparatus” (patented October 22, 1996) (claiming “[a] method for training animals”);
* U.S. Patent No. 6,311,645, to J.S. Brown, entitled “Animal Training Method and Apparatus” (patented November 6, 2001) (claiming “[a] method of training an animal”);
* U.S. Patent No. 6,352,053, to D. Records et al., entitled “Apparatus and Method for Animal Testing and Training” (patented March 5, 2002) (claiming “[a] method permitting an observer to determine the bucking propensity of an animal such as a bull or horse”);
* U.S. Patent No. 6,568,940, to M. Mack, entitled “Equestrian Training Method” (patented May 27, 2003) (claiming “[a] method for equestrian training”);
* U.S. Patent No. 6,602,209, to D.H. Lambert et al., entitled “Method and Device for Analyzing Athletic Potential in Horses” (patented August 5, 2003) (claiming “[a] method for predicting potential performance in a selected racing or training animal”);
* U.S. Patent No. 7,107,939, to L.J. Lady, entitled “Animal Training Apparatus and Method” (patented September 19, 1996) (claiming “[a] method for training a four-legged animal”); and
* U.S. Patent No. 7,331,310, to K. Sersland et al., entitled “Domestic Animal Training Method” (patented Feb 19, 2008) (claiming “[a]n animal training method”).
Turning back the patent law to the uncertainty of the 1800s, when our economy was based on agrarian and early industrial technology, is not what our nation needs in this time of economic crisis.
The point is that any subject should be available for patent protection, whether it is Speed Dating, Horse Training, or Hedging Risk, so long it does not claim the subject in an abstract manner.
By: Rebecca,
on 11/12/2009
Charles R. Macedo is a partner at Amster, Rothstein & Ebenstein LLP, and the author of
On Monday, November 9, 2009, the nine Justices of the US Supreme Court heard oral argument in the case of Bilski v. Kappos. This case, involving what many think to be the dull and arcane subject of patent law, can have a profound effect on the US economy, including potentially allocating research funds and investments and limiting what information our society will learn through the use of patents.
In the US, a patent can be granted to the first and true inventor(s) of a novel (new) and non-obvious invention. A patents provides a limited right to exclude others for a limited period of time, in exchange for telling the world how to practice the claimed invention. In other words, if the inventor teaches the rest of society what he or she knows, our government gives him or her an exclusive window of time during which to commercialize that invention. The assumption of the patent law is that granting a patent will foster innovation in two significant ways: (1) by encouraging investment in exchange for the limited monopoly rights, and (2) by providing disclosure of what might otherwise be maintained in secret and/or forgotten.
The issue the Supreme Court is deciding in Bilski is what types of inventions are “patent worthy” (as Elaine in Seinfeld might have phrased it), and what types of inventions do not even get considered for a patent. This debate is so important that apparently it is rumored that more amicus curiae briefs (including a submission prepared by me) were submitted to the Supreme Court than any other patent case in US history.
In an effort to divine where to draw the line on patent eligibility, the Justices posed a variety of hypothetical inventions to test patent worthiness using a proposed rule from the Appellate Court, to see whether that Court got the right answer. As an apparent example of an invention that should not be patent worthy, Justice Sotomayor, the newest member of the Court, is crediting with asking “why not speed dating?” [Court observers note that the transcript may be in error as to whether she said “speed dating” as reported in the media or “speaking”, but “speed dating” is a more interesting hypothetical].
In response to Justice Sotomayor, I say, “why not?” A brief review of Wikipedia on the subject, as it is at least in Wikipedia’s eyes deserving of its own web page, shows that “Speed dating is a formalized matchmaking process or dating system whose purpose is to encourage people to meet a large number of new people.” Certainly, this is a worthy goal for society to encourage.
“Speed dating” (two words with a space, in contrast to the single word which is a registered trademark of Speeddating Foundation., see US Trademark Registration No. 2,463,420) is a recent innovation. According to Wikipedia, “the first speed-dating event took place at Pete’s Café in Beverly Hills in late 1998” and “several commercial services began offering secular round-robin dating events” thereafter.
Many different techniques of speed dating have developed, with different themes and rules, all with the lofty goal of introducing two hopefully compatible people, who might not have otherwise met, in a time efficient manner. Each has its own process – a series of steps performed – many of which have proven profitable for their organizers and the individuals who pay to participate in these events.
It is not just Wikipedia that has found the topic worthy of investigation: the University of Pennsylvania and others have studied the events, and published their research findings. Further, pop culture has featured the concept in television shows like Sex in the City and in movies like Hitch.
Finally, perhaps Justice Sotomayor will be surprised to learn that the US Government has recognized that, at least when a speed date was tied to a computer in a manner conceived by Mordechai Teicher, the invention was entitled to patent protection in US Patent No. 7,305,398, entitled “Apparatus and Method for Managing Social Games”.
I love this logic: "to govern them as a distinct people was impossible, because they were as brave and as high spirited as they were fierce, and were ready to repel by arms every attempt on their independence." So you don't like being pushed around and dare to resist and fight back? Well, now, that just shows how very, very much we need to push you around.
Well said, Perry -- and more than a little hideously ironic, given how the United States moved from colony to nation.
Melissa Thompson's 2001 article in Lion & Unicorn, In a Sea of Good Intentions, is a good resource for anyone who wants to follow up on what Debbie has pointed out here about legal "literature" (including the writings of John Marshall) and children's lit.
Besides, even if these depictions of the Indian people had been accurate, it still doesn't provide a moral excuse - let alone an imperative - for taking their land. (One of my neighbours owns a big garden which he is allowing to disappear under weeds. He isn't using his garden 'well' by a gardener's standards, but that doesn't give the local gardening club the right to take it over.)