McBlogmick

Today's New York Times has a story about improperly appointed judges. The judges are patent judges and the issue is not whether they may be article I judges. That is settled because of the plenary power Congress has over patent issues. The issue instead is about the appointments clause, which requires that "inferior officers" be appointed by "department heads" which is universally thought to be cabinet-level heads. Since 2000, the director of the Patent and Trademark Office, rather than the Secretary of Commerce, has appointed these judges. And the S. Ct. has held that judges are "inferior officers" and not mere employees.

"But the Justice Department has already all but conceded that Professor Duffy is right. Given the opportunity to dispute him in a December appeals court filing, government lawyers said only that they were at work on a legislative solution."

"They did warn that the impact of Professor Duffy’s discovery could be cataclysmic for the patent world, casting “a cloud over many thousands of board decisions” and “unsettling the expectations of patent holders and licensees across the nation.” But they did not say Professor Duffy was wrong."

"If it was a legislative mistake, it may turn out to be a big one. The patent court hears appeals from people and companies whose patent applications were turned down by patent examiners, and it decides disputes over who invented something first. There is often a lot of money involved."

This is as big as the bankruptcy issue in the late 70s, early 80s.

Diversity, supplemental jurisdiction, and removal. Short but sweet: fcts8.mp3.

Thanks for a great class!

crpod8.mp3

Thanks for being such a fun class!

Here are the podcasts for causation, crpod6.mp3, and individual immunities, crpod7.mp3. I'll get a short podcast done on procedural defenses early tomorrow.

Good luck!

You may have heard or read about Sara Jane Olsen's drama this past weekend. Several of my criminal law students sent me great links to articles, and here's the story in a nutshell. remember that we read about two people connected to the Symbionese Liberation Army in the 1970s, Kathleen Soliah and Patty Hearst. Soliah was possibly involved with the group's plans to bomb two police cars, which was foiled when the pipe bombs fell off the cars. She went underground, changed her identity, fled to St. Paul, MN, got married, had kids, and essentially lived as a model citizen for more than 20 years. She was arrested in 1999 and finally pled guilty to some of the crimes she was charged with. She was sentenced under the law as it existed when the crimes were committed, which resulted in substantially shorter sentences than she would receive if the crimes were committed today. She was released on parole Friday and told she could spend that time in St. Paul. At the airport she was detained, and the next day, brought back to prison. Authorities said that they had miscalculated and that she wasn't due for parole for another year. Ouch.

Here's a CNN story and the San Francisco Chronicle story.

Here are podcast summaries for chapters 4 and 5: crpod4.mp3, crpod5.mp3

We finished chapter 6 the Tuesday before break. I'll have that one up early next week. And I'll put up a summary of chapter 7 probably later in the week (we'll finish it Tuesday). The rest of the semester will be qualified immunity, procedural defenses, and exhaustion.

This will catch us up, mostly. We have covered some things that aren't in the podcasts, and there are some things in that we haven't covered in as much depth. I'll try to do a supplemental podcast before finals on removal and supplemental jurisdiction to be sure we've covered that.

fcts5.mp3
fcts6.mp3

Just in time, the podcast on our third chapter, substantive law issues, is ready. crpod3.mp3.

Enjoy!

All right. I now have completed podcast summaries for two of the three chapters we will have covered by the end of class on Tuesday: the Introduction, clpod1.mp3; and "under color of state law," clpod2.mp3. The scripts for them are posted on our TWEN page under "class materials."

If you haven't had me for a class before, let me give you a little detail on how these summaries fit into class. Essentially, I try to provide the big picture through them. They really are just a summary of the most important parts of the material we've covered. And so they highlight the main issues, list any tests or factors the courts use, and give some background to give the material context or to tie it to the rest of the class or other subjects that you have studied. These do not represent what I expect you to write on a practice problem or exam answer. On those, you'll have to tell me what the rule is that you need to answer the question, but most of your writing will focus on applying that rule to the facts as thoroughly as possible.

Let me know if you have any questions or want me to follow up on anything in more detail.

Eeek! Where has the semester gone? Here is the podcast for the introductory materials, fcts1.mp3; standing, fcts2.mp3; other justiciability stuff, fcts3.mp3; and Congress' control over jurisdiction, fcts4.mp3

Let me know if you have any questions or if there are things you would like me to cover in more depth.

Someone just sent me this link to an editorial in The Nation by Patricia J. Williams who is a very thoughtful writer on issues of race, gender, and the intersection of both.

Try this if you like philosophy.

I know it's early to be thinking about next semester, but I've had a couple of people ask already about books and things. The book for Federal Courts is the 5th edition of Chemerinsky's Federal Jurisdiction treatise. I'll be supplementing it through the semester with cases that I've edited. Sorry that you won't be able to get it used (it's a new edition), but it's a relatively more reasonable book than your usual textbook. For Civil Rights, we'll be using the text, Constitutional Torts, for which Sheldon Nahmod is the lead author. It's the 2d edition, published in 2004, and LexisNexis is the publisher.

Don't forget to register for the TWEN page, and I'll see you next semester. Have a great break!

Here is the audio for the employment law review session. elmakeup1126.mp3 It's a little on the loud side, so be careful listening to it. I tried to pause when we were reading from the quiz, so there shouldn't be quiet parts that are too long. You can even hear some of the comments and questions, although I tried to repeat everything also. There is no written version of this one because it was recorded spontaneously and not like the podcast summaries for class.

I'm available for questions until 2 pm on Sunday Dec. 2, and good luck, even though you don't need it because you've all basically been preparing all semester long. Thanks for being a great class!

Here is the podcast for employment discrimination: 3485-Chapter10.mp3

Here is the podcast for the FLSA Chapter11.mp3

ERISA Chapter12.mp3

Workers' Comp/OSHA Chapter13.mp3

And arbitration Chapter14.mp3