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Owl 69/70/75 Online
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Post: #21
RE: Rice Quad Supreme Court Thread
(06-13-2019 12:36 PM)mrbig Wrote:  I've been tossing around an idea in my own mind the last few months and I thought this might be an interesting place to get some feedback. Please understand that my proposal is meant to benefit the judiciary in general and is inherently non-partisan and non-ideological, as it applies regardless of which party is in control of the executive branch (nominating judges) or the Senate (voting on judges).
My suggestion is a law that would need to be passed by Congress and signed by the President. I realize there are some constitutional arguments to be made against my suggestion. I'm not asking anyone to make those legal arguments. I'm more interested in political/practical feedback since most of the folks hanging out in the Quad are conservatives.
Here are the bullet-points:
  1. Get rid of the filibuster for all judicial nominees
  2. Define "advice and consent" in Article II, Section 2 of the Constitution as requiring 60 votes in the Senate to approve judicial nominees.
  3. Set forth a specific timeline that the Senate Judiciary Committee and the full Senate must follow for the consideration of all judicial nominees. Base this timeline on past confirmations and it must include both a minimum and maximum time before committee and full Senate votes occur. This prevents the Senate from running out the clock on nominees toward the end of presidential terms (which both parties have done). It also prevents the Senate from jamming through a bunch of nominees either right before an election or during the lame duck session. I'd suggest a different timeline for district court, appellate court, and Supreme Court nominees, as they tend to face different degrees of scrutiny during the confirmation process.
  4. If there is not enough time for the Senate to consider nominees based on the timelines determined above prior to a federal election, the Senate cannot consider any federal judicial nominations until after the new Congress is sworn in.
  5. If the Senate does not approve a judicial nominee for the Supreme Court and the time remaining before the next federal election is insufficient for the Senate to consider another nominee, the current President can make a recess-appointment-like elevation of any current federal appeals court judge to the Supreme Court. However, that judge must have received at least 60 votes when confirmed to the appellate court. The length of the term should probably be 18 months or 30 months. This is meant to discourage the Senate from voting down a nominee just so they can subsequently run out the clock, but also encourage the President to appoint nominees that can attain 60 votes.
My obvious goal is to get Democrats and Republicans to nominate more mainstream judges. Leave the fringe legal minds as law school professors or think-tank legal scholars. It also helps reduce the influence of both liberal and conservative advocacy groups in the nomination process.
Other ideas I considered, but did not include in my initial outline:
  • 27-year terms for federal judges. I like the idea for a number of reasons, but it would require a constitutional amendment rather than just a law. Even though I am relatively young, it bothers me that there is increasing pressure to nominate younger attorneys to the federal judiciary, as it feels like age discrimination. It also bothers me that both liberal and conservative judges wait to retire until the President will appoint a judge who has a similar ideological bent.
  • Get rid of the blue slip process, but all all home-state Senators have a vote for federal district court nominees on the judiciary committee.
Thoughts?

I'd go with 55 instead of 60, and I'd go with eliminating the blue slip. I like having home state senators sit in the judiciary committee instead.

I don't like the term limit. You appoint somebody who serves 25 years, and is still in good health, the last couple of years there are going to be severe temptations that could impair their independence.
06-13-2019 03:16 PM
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Post: #22
RE: Rice Quad Supreme Court Thread
(06-13-2019 03:16 PM)Owl 69/70/75 Wrote:  
(06-13-2019 12:36 PM)mrbig Wrote:  I've been tossing around an idea in my own mind the last few months and I thought this might be an interesting place to get some feedback. Please understand that my proposal is meant to benefit the judiciary in general and is inherently non-partisan and non-ideological, as it applies regardless of which party is in control of the executive branch (nominating judges) or the Senate (voting on judges).
My suggestion is a law that would need to be passed by Congress and signed by the President. I realize there are some constitutional arguments to be made against my suggestion. I'm not asking anyone to make those legal arguments. I'm more interested in political/practical feedback since most of the folks hanging out in the Quad are conservatives.
Here are the bullet-points:
  1. Get rid of the filibuster for all judicial nominees
  2. Define "advice and consent" in Article II, Section 2 of the Constitution as requiring 60 votes in the Senate to approve judicial nominees.
  3. Set forth a specific timeline that the Senate Judiciary Committee and the full Senate must follow for the consideration of all judicial nominees. Base this timeline on past confirmations and it must include both a minimum and maximum time before committee and full Senate votes occur. This prevents the Senate from running out the clock on nominees toward the end of presidential terms (which both parties have done). It also prevents the Senate from jamming through a bunch of nominees either right before an election or during the lame duck session. I'd suggest a different timeline for district court, appellate court, and Supreme Court nominees, as they tend to face different degrees of scrutiny during the confirmation process.
  4. If there is not enough time for the Senate to consider nominees based on the timelines determined above prior to a federal election, the Senate cannot consider any federal judicial nominations until after the new Congress is sworn in.
  5. If the Senate does not approve a judicial nominee for the Supreme Court and the time remaining before the next federal election is insufficient for the Senate to consider another nominee, the current President can make a recess-appointment-like elevation of any current federal appeals court judge to the Supreme Court. However, that judge must have received at least 60 votes when confirmed to the appellate court. The length of the term should probably be 18 months or 30 months. This is meant to discourage the Senate from voting down a nominee just so they can subsequently run out the clock, but also encourage the President to appoint nominees that can attain 60 votes.
My obvious goal is to get Democrats and Republicans to nominate more mainstream judges. Leave the fringe legal minds as law school professors or think-tank legal scholars. It also helps reduce the influence of both liberal and conservative advocacy groups in the nomination process.
Other ideas I considered, but did not include in my initial outline:
  • 27-year terms for federal judges. I like the idea for a number of reasons, but it would require a constitutional amendment rather than just a law. Even though I am relatively young, it bothers me that there is increasing pressure to nominate younger attorneys to the federal judiciary, as it feels like age discrimination. It also bothers me that both liberal and conservative judges wait to retire until the President will appoint a judge who has a similar ideological bent.
  • Get rid of the blue slip process, but all all home-state Senators have a vote for federal district court nominees on the judiciary committee.
Thoughts?

I'd go with 55 instead of 60, and I'd go with eliminating the blue slip. I like having home state senators sit in the judiciary committee instead.

I don't like the term limit. You appoint somebody who serves 25 years, and is still in good health, the last couple of years there are going to be severe temptations that could impair their independence.

I have to agree that we should never again see the William O. Douglas model of clinging to a seat with gollum like grip should ever be repeated. But, we may very well see that in the event of a Trump re-election and Ruthie.

Quote:At age 76 on December 31, 1974, while on vacation with his wife Cathleen in the Bahamas, Douglas suffered a debilitating stroke in the right hemisphere of his brain. It paralyzed his left leg and forced him to use a wheelchair. Douglas, severely disabled, insisted on continuing to participate in Supreme Court affairs despite his obvious incapacity. Seven of his fellow justices voted to postpone until the next term any argued case in which Douglas's vote might make a difference.

It was only after the heavy urging of both then-present members of the Court and at least one former member of the Court that he was persuaded to retire.

But that wasnt the end of it ---

Quote:Douglas maintained that he could assume judicial senior status on the Court, and attempted to continue serving in that capacity, according to authors Woodward and Armstrong, and refused to accept his retirement, trying to participate in the Court's cases well into 1976, after John Paul Stevens had taken his former seat. Douglas reacted with outrage when, returning to his old chambers, he discovered that his clerks had been reassigned to Stevens, and when he tried to file opinions in cases whose arguments he had heard before his retirement, Chief Justice Warren Burger ordered all justices, clerks, and other staff members to refuse help to Douglas in those efforts. When Douglas tried in March 1976 to hear arguments in a capital-punishment case, Gregg v. Georgia, the nine sitting justices signed a formal letter informing him that his retirement had ended his official duties on the court.
06-13-2019 03:40 PM
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Post: #23
RE: Rice Quad Supreme Court Thread
(06-13-2019 03:16 PM)Owl 69/70/75 Wrote:  I don't like the term limit. You appoint somebody who serves 25 years, and is still in good health, the last couple of years there are going to be severe temptations that could impair their independence.

I agree there are arguments in both directions. I've seen some proposals for 18-year terms, which I think is far too short. 27 years is a career. If someone is appointed at 50, they serve until 77. A later President can always reappoint a judge to a new term. I don't like the current system that rewards the President for appointing super-young judges or justices. And honestly, I don't know why those temptations are any stronger in year 26 than they would be in year 15. Most judges are pretty honest or they will get torpedoed during the confirmation process (especially if 60 votes are required). And there are still laws and the possibility of impeachment for those that might give in to "severe temptations".

Excluding active Justices, only 17 of 105 USSC justices served more than 27 years. But it is happening more and more frequently with the appointment of younger justices and better medical science, as 4 of the last 6 Justices to leave the Court had served >30 years, and Thomas (28 years), Ginsberg (26 years), and Breyer (25 years) are all very close to 27. If Ginsberg and Breyer stay moderately healthy, I expect both of them will pass 27 years.
(This post was last modified: 06-13-2019 04:24 PM by mrbig.)
06-13-2019 04:22 PM
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Post: #24
RE: Rice Quad Supreme Court Thread
(06-13-2019 03:40 PM)tanqtonic Wrote:  I have to agree that we should never again see the William O. Douglas model of clinging to a seat with gollum like grip should ever be repeated. But, we may very well see that in the event of a Trump re-election and Ruthie.

I think we are already seeing that with RBG. I think we likely saw it with Kennedy and Stevens. It might have happened with O'Connor if Kerry had won the 2004 election (though perhaps her husband's rapidly declining health would have made her retire anyway). The justices seem to think of the seat on the Supreme Court as "their seat", which is totally not how they should be thinking of things.
06-13-2019 04:29 PM
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Owl 69/70/75 Online
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RE: Rice Quad Supreme Court Thread
One other thing I would like to do is increase the number of justices to 11 (or 12) with the proviso that each justice must come from one of the 11 federal judicial circuits (12th if we add the DC Circuit). With 12 there would be a problem with ties, unless you did something like make the senior justice the chief justice, with no vote except to break a tie (which would only occur when someone recuses).

Transitionally, I'd say let R's and D's each nominate one, and let the two of them pick a third, with the requirement that each represent a circuit not currently represented. Then each new vacancy would be filled by someone from an unrepresented circuit until all were represented, and afterwards each seat would be that circuit's seat. Right now you have membership as follows:

DC Circuit (4) - Roberts, Thomas, Ginsburg, Kavanaugh
1st Circuit (1) - Breyer
2nd Circuit (1) - Sotomayor
3rd Circuit (1) - Alito
10th Circuit (1) - Gorsuch
No circuit - Kagan, although would probably be considered DC Circuit coming from Solicitor General office.

And every one of them attended one of two law schools (Harvard, Yale, although Ginsburg ultimately graduated from Columbia). Not much chance of intellectual diversity there. So the interim procedure would require reduction of the DC Circuit to one justice, and adding justices from 4th, 5th, 6th, 7th, 8th, 9th, and 11th circuits--three initially, then others as vacancies occur.
(This post was last modified: 02-19-2020 12:16 PM by Owl 69/70/75.)
06-13-2019 04:43 PM
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Post: #26
RE: Rice Quad Supreme Court Thread
69/70/75 - I thought about your proposal as well, but ultimately decided I didn't like it. First, people move around a lot these days (especially attorneys and especially attorneys who work in high levels of federal government). Makes it difficult and somewhat arbitrary to decide which circuit a justice should be associated with. Second, the populations covered by each circuit court vary significantly. 61 million people in the 9th Circuit, 33 million in the 11th Circuit, and 32 million in the 5th and 6th Circuits. But only 14 million in the 1st Circuit and 17 million in the 10th Circuit. Doesn't make sense to me unless they rearrange the circuit courts so the populations are more balanced. Third, I just don't think judicial philosophy is significantly affected by where the judge lived or worked at some point in their life. While I like the idea of the USSC having at least some balance of life experience, at the end of the day they are all elite attorneys so there is only so much variance you can have.

I wouldn't mind increasing the number of justices. 12 justices with rotating 24-year terms would allow each President to appoint 2 justices per Presidential term (one per Congress). 6-6 opinions would just affirm the specific appellate court decision, but wouldn't have the same level of precedential value. I absolutely think this would help reduce the politics around judicial appointments (at least at the USSC level, and something similar could be done with circuit court and district court appointments, if so desired).

Again, the goal of my suggestion is decidedly not to allow liberals or Democrats to stack the judiciary. If I wanted to do that, I would suggest that the law should be applied retroactively since all 4 "liberal" justices achieved the 60-vote threshold while only Chief Justice Roberts achieved that threshold amongst the "conservatives" on the bench. 05-stirthepot
(This post was last modified: 06-13-2019 05:06 PM by mrbig.)
06-13-2019 04:53 PM
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Post: #27
RE: Rice Quad Supreme Court Thread
I don't check the political threads in The Quad very often, as I find them unappealingly toxic. But the fact that 69/70/75, OptimisticOwl, and tanqtonic have all commented and none have expressed hatred of my idea gives me some hope. Maybe georgewebb, GoodOwl, or one of the others will drop in with a conservabomb to explode my idea.
(This post was last modified: 06-13-2019 05:00 PM by mrbig.)
06-13-2019 04:59 PM
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Owl 69/70/75 Online
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Post: #28
RE: Rice Quad Supreme Court Thread
(06-13-2019 04:53 PM)mrbig Wrote:  69/70/75 - I thought about your proposal as well, but ultimately decided I didn't like it. First, people move around a lot these days (especially attorneys and especially attorneys who work in high levels of federal government). Makes it difficult and somewhat arbitrary to decide which circuit a justice should be associated with. Second, the populations covered by each circuit court vary significantly. 61 million people in the 9th Circuit, 33 million in the 11th Circuit, and 32 million in the 5th and 6th Circuits. But only 14 million in the 1st Circuit and 17 million in the 10th Circuit. Doesn't make sense to me unless they rearrange the circuit courts so the populations are more balanced. Third, I just don't think judicial philosophy is significantly affected by where the judge lived or worked at some point in their life. While I like the idea of the USSC having at least some balance of life experience, at the end of the day they are all elite attorneys so there is only so much variance you can have.
I wouldn't mind increasing the number of justices. 12 justices with rotating 24-year terms would allow each President to appoint 2 justices per Presidential term (one per Congress). 6-6 opinions would just affirm the specific appellate court decision, but wouldn't have the same level of precedential value. I absolutely think this would help reduce the politics around judicial appointments (at least at the USSC level, and something similar could be done with circuit court and district court appointments, if so desired).

OK, so does it make sense that 1st (14 million) and 10th (17 million) are represented but 9th (61 million), 11th (33 million), and 5th (32 million) aren't? Just make it simple, wherever you are living and serving or practicing at the time of appointment governs. We don't have much problem with congress or with President/VP with that rule. I suppose it would induce some political maneuvering in appointments to circuit courts of appeals--we appoint a judge to the 11th because the 11th isn't represented and we want him/her to be our next SCt appointee. But that doesn't really worry me.

I think we badly need more intellectual diversity to the court, and I think the court should be at least somewhat representative of the country, and I don't know another way to get either one of those. Yes, it can be gamed a little bit, but there are some severe limits on how much.

I have wondered about equalizing the population of the various circuits a bit, but the problem is that you have existing precedents by circuit. If you are in the 5th and move to the 11th, then going forward are you governed by 5th circuit precedent of 11th? The jurisprudential problems probably mean we have to stick with what we have.
(This post was last modified: 06-13-2019 05:11 PM by Owl 69/70/75.)
06-13-2019 05:06 PM
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Post: #29
RE: Rice Quad Supreme Court Thread
(06-13-2019 05:06 PM)Owl 69/70/75 Wrote:  I don't know any other way to get any intellectual diversity to the court. The court should be at least somewhat representative of the country, and I don't know another way to get it there.

While I agree with you in theory, this is kind of a separate goal than my proposal addresses, which is reducing the politicization of the judiciary and the judicial nomination process. If every President gets to appoint 2 USSC justices per term, one per Congress, then that would solve a lot of issues. However, it would require a Constitutional Amendment which is tough, so I think moving to a 60-vote threshold with no filibuster and strict timelines for the confirmation process is another way to achieve the goal.
06-13-2019 05:10 PM
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Owl 69/70/75 Online
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Post: #30
RE: Rice Quad Supreme Court Thread
(06-13-2019 05:10 PM)mrbig Wrote:  
(06-13-2019 05:06 PM)Owl 69/70/75 Wrote:  I don't know any other way to get any intellectual diversity to the court. The court should be at least somewhat representative of the country, and I don't know another way to get it there.
While I agree with you in theory, this is kind of a separate goal than my proposal addresses, which is reducing the politicization of the judiciary and the judicial nomination process. If every President gets to appoint 2 USSC justices per term, one per Congress, then that would solve a lot of issues. However, it would require a Constitutional Amendment which is tough, so I think moving to a 60-vote threshold with no filibuster and strict timelines for the confirmation process is another way to achieve the goal.

Of course I worked on an amicus brief for a case where our side won 5-4, with the breakdown as follows:

For - Roberts, Alito, Kennedy, Sotomayor, Breyer
Against - Scalia, Thomas, Ginsburg, Kagan

So not every case gets decided on partisan grounds.
06-13-2019 05:14 PM
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tanqtonic Online
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Post: #31
RE: Rice Quad Supreme Court Thread
(06-13-2019 04:59 PM)mrbig Wrote:  I don't check the political threads in The Quad very often, as I find them unappealingly toxic. But the fact that 69/70/75, OptimisticOwl, and tanqtonic have all commented and none have expressed hatred of my idea gives me some hope. Maybe georgewebb, GoodOwl, or one of the others will drop in with a conservabomb to explode my idea.

There is nothing in your idea that is 'tilted' politically in my view. And, the politics of the placing people into the Federal Judiciary has itself become uber-toxic.

I predicted this endpoint during the Bork hearings, since there was nothing to reign in the politics that were unleashed them. It took 30 years, but the Republicans have finally realized that the junkyard dogs were unleashed back then -- and the nominations have taken a rocket sled to to toxicity since that point.

I dont think one will be able to implement your ideas -- some are rooted Constitutionally and *nothing* in the document will explicitly change in my lifetime because of the 'political issue'.

Others are rooted in Senate operating rules -- which the judicial fights have been the vanguard of them rolling into the toxic pit.

I would hope most of your points might be implemented -- but, I am not going to hold my breath on it.

I guess OO, #s, and myself are the conservabombers par excellence here? 03-wink
06-13-2019 05:59 PM
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RE: Rice Quad Supreme Court Thread
So basically, a decent non-partisan idea that, of course, means it will never get implemented! They key to passing it, it not having it take effect for a few years.
(This post was last modified: 06-13-2019 06:31 PM by mrbig.)
06-13-2019 06:30 PM
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Post: #33
RE: Rice Quad Supreme Court Thread
(06-13-2019 04:59 PM)mrbig Wrote:  I don't check the political threads in The Quad very often, as I find them unappealingly toxic. But the fact that 69/70/75, OptimisticOwl, and tanqtonic have all commented and none have expressed hatred of my idea gives me some hope. Maybe georgewebb, GoodOwl, or one of the others will drop in with a conservabomb to explode my idea.

For some reason I did not see this thread until just now. This is a great topic and I've enjoyed reading today's posts now that I've seen them.

Alas, no immediate answer springs to mind, and certainly no "conservabomb" -- but I like that word and will look for an excuse to use it some other time.

Meanwhile (as I'm sure everyone has been following with eager anticipation), the Supreme Court has recently announced merits decisions in two of the IP cases that I discussed in a CLE talk last month, and cert. decisions are expected next week in several other cases that I touched on. So far, I'm two for two in my predictions on merits rulings; we'll see if my prescience regarding cert. grants proves similar. But lest you think I am bragging, I assure you that I'm not: while the issues in these cases were esoteric in the extreme, the outcomes were pretty easy to predict from the oral argument. My "predictions" simply stated the nearly-obvious.

The Court has had merits in five IP cases this term (three before my talk and two after). The votes and opinion writers provide a nice illustration of just how non-political these IP cases have been:
9-0 Thomas
9-0 Ginsburg
9-0 Kavanaugh
6-3 Sotomayor (dissent by Breyer, Kagan and Ginsburg)*
8-1 Kagan (dissent by Gorsuch only on grounds of mootness)

*And even this case wasn't political.

I hope to generate a LinkedIn article about all of this later this month.
06-13-2019 06:36 PM
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Post: #34
RE: Rice Quad Supreme Court Thread
(06-13-2019 03:11 PM)mrbig Wrote:  
(06-13-2019 01:41 PM)OptimisticOwl Wrote:  Curious who you think are “fringe” and why.

First, I didn't say any of the judges or justices were fringe (though I guess I implied it). Second, as a practicing attorney, I have zero comfort level in naming judges or justices. Third, it literally doesn't matter at all for purposes of my proposal.

All that said, I can give an easy example of something I view as "fringe". There is an [unnamed] Judge in my district court who was nominated by a Republican president but who has the reputation of being quite liberal on a lot of issues. On a specific type of case that I handled for over 1 decade (appeals from a specific federal agency's final administrative decisions) that were subjected to the substantial evidence standard on findings of fact, this district court judge remanded >95% of all decisions to the agency. I don't think any of the other judges in this district were above 10%. I'm not saying that this person shouldn't be a judge, but his views on this specific issue are "fringe" and if he was this fringe on too many issues, I think it would be a serious problem. I think there are judges on both sides that are far outside the mainstream. I think they are easier to identify at the appellate court level.

(06-13-2019 01:41 PM)OptimisticOwl Wrote:  Why 60? Why not 55 or 75. Or 51?

75 - I think is too many to find consistent consensus and it would constrain the President's nominations a bit too much for my comfort. My goal isn't to make every judge a centrist, it is to reduce the number of fringe judges, reduce the impact of special interest groups, and increase the public's confidence in the judiciary as a strong, independent, and fair-minded branch of government that can remain largely separate from political influences.

51 - no better than 50, as far as I'm concerned.

55 - better than the current system, but it isn't unusual for one party to have 55 Senators. It is pretty unusual for one party to have 60 Senators. My proposal is meant to coerce nominations that are acceptable to at least a handful of Senators from the opposing party and I don't think 55 would accomplish my goal.

60 - In addition to threading the needle between my concerns with 55 and 75, it also makes sense since that is the number of Senators needed to overcome a filibuster, so it makes some logical sense from a historical perspective (even acknowledging that there are many people who believe that the filibuster doesn't make any sense from any perspective).

I don’t see how your proposals foster bipartisanship or sensible justices, but you’re the lawyer.

Maybe start at 60, with the requirement dropping by three with each rejection.
06-13-2019 07:08 PM
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Post: #35
RE: Rice Quad Supreme Court Thread
(06-13-2019 06:36 PM)georgewebb Wrote:  
(06-13-2019 04:59 PM)mrbig Wrote:  I don't check the political threads in The Quad very often, as I find them unappealingly toxic. But the fact that 69/70/75, OptimisticOwl, and tanqtonic have all commented and none have expressed hatred of my idea gives me some hope. Maybe georgewebb, GoodOwl, or one of the others will drop in with a conservabomb to explode my idea.

For some reason I did not see this thread until just now. This is a great topic and I've enjoyed reading today's posts now that I've seen them.

Alas, no immediate answer springs to mind, and certainly no "conservabomb" -- but I like that word and will look for an excuse to use it some other time.

Meanwhile (as I'm sure everyone has been following with eager anticipation), the Supreme Court has recently announced merits decisions in two of the IP cases that I discussed in a CLE talk last month, and cert. decisions are expected next week in several other cases that I touched on. So far, I'm two for two in my predictions on merits rulings; we'll see if my prescience regarding cert. grants proves similar. But lest you think I am bragging, I assure you that I'm not: while the issues in these cases were esoteric in the extreme, the outcomes were pretty easy to predict from the oral argument. My "predictions" simply stated the nearly-obvious.

The Court has had merits in five IP cases this term (three before my talk and two after). The votes and opinion writers provide a nice illustration of just how non-political these IP cases have been:
9-0 Thomas
9-0 Ginsburg
9-0 Kavanaugh
6-3 Sotomayor (dissent by Breyer, Kagan and Ginsburg)*
8-1 Kagan (dissent by Gorsuch only on grounds of mootness)

*And even this case wasn't political.

I hope to generate a LinkedIn article about all of this later this month.

Nothing like a good steamy article on IP SCOTUS cases to get the juices flowing -- kind of ranks up there with Penthouse Forum..... 03-wink

(coming from a *very* reformed IP attorney.........)
06-13-2019 07:33 PM
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Post: #36
RE: Rice Quad Supreme Court Thread
link: U.S. Supreme Court to decide if public has free access to Georgia code

Quote:For copyright purposes, “the people” are the “constructive authors” of the annotated code, the 11th U.S. Circuit Court of Appeals said. “And because they are the authors, the people are the owners of these works, meaning that the works are intrinsically public domain material and, therefore, uncopyrightable.”

But state lawmakers appealed that ruling, and now the high court has agreed to hear it.

Especially hurtful to those who may try to go pro-se. Of course the people should have free access to the annotated codes that govern their lives and rights. That it is even a question shows where many probelems in our society lie.
06-24-2019 11:09 PM
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GoodOwl Offline
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Post: #37
RE: Rice Quad Supreme Court Thread
(06-13-2019 04:59 PM)mrbig Wrote:  I don't check the political threads in The Quad very often, as I find them unappealingly toxic. But the fact that 69/70/75, OptimisticOwl, and tanqtonic have all commented and none have expressed hatred of my idea gives me some hope. Maybe georgewebb, GoodOwl, or one of the others will drop in with a conservabomb to explode my idea.

I found your proposal interesting, and appreciate your honest attempt at improving what is going on, but it struck me that your proposal, to be implemented, assumes a relatively fair balance already exists vis-a-vis fringe decisions already made. I do not find that to be the case, as the court has seemed for many decades beginning in the early 70's to be tilted to the extreme towards a certain direction, which has still not come back into balance. Should many of those fringe decisions be remedied over time then I'd be more interested in considering your proposal. As things stand, it would appear to manifest itself (and I do not accuse you of that intention, as I do think your intentions on your attempt are honest in this regard--merely that it would appear to have that effect) as enshrining past fringe decisions essentially beyond repair, which I do not think is in the long-term best interests of the people or the country.

I share your concern that a frighteningly small number of institutions (which have in recent decades revealed themselves to have a far off center bias and lack of diversity of opinion, which seems to only be more rapidly growing in "fringiness") seem to have a lock on our highest courts. As a grad of a smaller, off the beaten path though still elite institution, I would be more comfortable with a more equitable distribution, yet I would hope to rely on a more enlightened selection, though I'm not sure your process necessarily does that--i.e. it could still result in the same lockdown of spots vis-a-vis grads of institutions.
06-24-2019 11:53 PM
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mrbig Offline
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Post: #38
RE: Rice Quad Supreme Court Thread
(06-24-2019 11:53 PM)GoodOwl Wrote:  I found your proposal interesting, and appreciate your honest attempt at improving what is going on, but it struck me that your proposal, to be implemented, assumes a relatively fair balance already exists vis-a-vis fringe decisions already made.

I don't really think my proposal assumes anything, it is purely forward-looking. Moving forward, it is an attempt to remove some of the politicization of the federal judiciary by driving Presidents from any party and a Senate with any party in the majority toward more mainstream judges. That doesn't rectify the situation already in existence ... but it helps now and should lead to larger improvements down the road.
06-25-2019 12:23 AM
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tanqtonic Online
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Post: #39
RE: Rice Quad Supreme Court Thread
(06-24-2019 11:09 PM)GoodOwl Wrote:  link: U.S. Supreme Court to decide if public has free access to Georgia code

Quote:For copyright purposes, “the people” are the “constructive authors” of the annotated code, the 11th U.S. Circuit Court of Appeals said. “And because they are the authors, the people are the owners of these works, meaning that the works are intrinsically public domain material and, therefore, uncopyrightable.”

But state lawmakers appealed that ruling, and now the high court has agreed to hear it.

Especially hurtful to those who may try to go pro-se. Of course the people should have free access to the annotated codes that govern their lives and rights. That it is even a question shows where many probelems in our society lie.

Going to disagree hrre. I will say that undoubtedly the public has full rights to the code iself. Not necessarily the annotated version.

If a state office prepared the annotations then again it is without doubt that the total work would not enjoy copyright protection under the copyright act.

In this case an outside party did the annotating. If there had been no contract between the state and lexis nexis, the preparer would enjoy full copyright protection for the assembled collection.

The only issue here is if the contract between Georgia and lexis brings it into the work for hire realm. That status is not so clear.

People absolutely should have access to raw codes and legal decisions. but legally it is fundamentally as clear that the annotation collections are not de facto public domain.
06-25-2019 03:59 AM
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georgewebb Offline
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Post: #40
RE: Rice Quad Supreme Court Thread
(06-24-2019 11:09 PM)GoodOwl Wrote:  link: U.S. Supreme Court to decide if public has free access to Georgia code

Quote:For copyright purposes, “the people” are the “constructive authors” of the annotated code, the 11th U.S. Circuit Court of Appeals said. “And because they are the authors, the people are the owners of these works, meaning that the works are intrinsically public domain material and, therefore, uncopyrightable.”

But state lawmakers appealed that ruling, and now the high court has agreed to hear it.

Especially hurtful to those who may try to go pro-se. Of course the people should have free access to the annotated codes that govern their lives and rights. That it is even a question shows where many probelems in our society lie.

A friend of mine is representing the accused copyright infringer, Public.Resource.org, in the Supreme Court appeal.
06-25-2019 04:17 PM
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