(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.
Okay, if all things were equal, I'd be more inclined to consider your position. I don't view all things as being equal at this time. The courts have become highly politicized in a way they haven't seemed to be for some time. There have been political decisions encoded in decisions the past 40 odd years that in my opinion would need to be corrected according to the Constitution to return Constitutional balance to the courts, and then we can see about ideas for re-balancing the court itself. It's like the bank has been robbed and a mulligan is declared to start over without rectifying the injustice done.
First correct the injustice, which in this case seems to only be done from politicization of the court opposite the way it has been over-politicized the other way for several decades (which I don't view as politicizing it as much as returning the court to and rectifying its decisions in light of the Constitution, which seems to have been deviated from in the recent past too often).
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.
I think we both agree on your first point--right to the basic code itself.
The second argument is admittedly more nuanced, and as you might perhaps guess, I'm generally all for private enterprise and capitalism. However, in this instance, I believe the 11th Circuit Court's argument is the people are involved in the ownership of something produced through the auspices of the state. That a private company(ies) might be enlisted at some point to assist as contractors in the production or dissemination of the annotated code seems to me not as clearly to necessarily totally negate the people's right to the access to that additional information in this way. Particularly for those who are pro-se, it strikes me as almost, I'm looking for the right word here, something like "royalist' to deny the access in the way sought. While both sides have compelling arguments, tie should go to the runner, in this case, it seems more appropriate the "We The People" should benefit more if one has to choose.
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.
I think Mr. Spock would characterize that as "fascinating!"
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.
I think we both agree on your first point--right to the basic code itself.
The second argument is admittedly more nuanced, and as you might perhaps guess, I'm generally all for private enterprise and capitalism. However, in this instance, I believe the 11th Circuit Court's argument is the people are involved in the ownership of something produced through the auspices of the state. That a private company(ies) might be enlisted at some point to assist as contractors in the production or dissemination of the annotated code seems to me not as clearly to necessarily totally negate the people's right to the access to that additional information in this way. Particularly for those who are pro-se, it strikes me as almost, I'm looking for the right word here, something like "royalist' to deny the access in the way sought. While both sides have compelling arguments, tie should go to the runner, in this case, it seems more appropriate the "We The People" should benefit more if one has to choose.
The issue really isn't nuanced at all. What you are arguing is akin to a 'living law', which although I agree with the outcome, I heartily disagree in the way to get there. Much as I detest the idea of a 'living Constitution'.
The Copyright law explicitly bars copyright protection for works of the US Government. This bar does *not* extend to works of state governments, and for works that are otherwise copyrightable. The law only specifically includes the US government in this sense.
Annotation works are black letter law copyrightable.
And state governments can hold valid copyrights to works that they produce. Or have done for them with a proper 'work for hire' relationship -- which is the case here.
The U.S. Copyright Office gives guidance that "Works (other than edicts of government) prepared by officers or employees of any government (except the U.S. Government) including State, local, or foreign governments, are subject to registration if they are otherwise copyrightable."
Would I support a change in the 17 USC to address a different outcome here? Undoubtedly.
But the means to do this via 'judicial veto' like is happening here is simply downright repugnant.
GoodOwl, I agree with your 'end result', and dont think that works of the individual state governments should be copyrightable. But in this instance the black letter law is absolutely clear. It is nowhere near nuanced.
(This post was last modified: 06-26-2019 03:00 AM by tanqtonic.)
(06-25-2019 11:32 PM)GoodOwl Wrote: Okay, if all things were equal, I'd be more inclined to consider your position. I don't view all things as being equal at this time. The courts have become highly politicized in a way they haven't seemed to be for some time. There have been political decisions encoded in decisions the past 40 odd years that in my opinion would need to be corrected according to the Constitution to return Constitutional balance to the courts, and then we can see about ideas for re-balancing the court itself. It's like the bank has been robbed and a mulligan is declared to start over without rectifying the injustice done.
First correct the injustice, which in this case seems to only be done from politicization of the court opposite the way it has been over-politicized the other way for several decades (which I don't view as politicizing it as much as returning the court to and rectifying its decisions in light of the Constitution, which seems to have been deviated from in the recent past too often).
I suspect you and I have different views on how the Court has deviated from Constitutional principles, but that doesn't really matter for purposes of my proposal. If you feel like using a robbed bank metaphor to describe my proposal, I think the better metaphor is that the bank is robbed so now we are beefing up security to make sure it isn't robbed again. You seem to want all money returned to the bank.
You aren't really all that explicit about how you would fix things. I can see two waysto undo the bank theft. First, the USSC overturn a prior decision (which happens frequently and can be done at any time). Second, it can be done with a Constitutional amendment at any time (though getting one passed is certainly challenging). Perhaps a third way would be for Congress to pass a statute, but that would be at best tinkering around the edges (and could be overturned by the judiciary).
If you are talking about a Constitutional amendment, what you want to do is considerably more challenging than my proposal. My proposal is really a 1st step, it doesn't have to be the last step.
SCOTUS says partisan gerrymandering should not be resolved by the Federal courts.
Quote:This one will be a 5-4 vote, for North Carolina. It will say that the issue of partisan gerrymandering is non-justiciable, and is solely a matter for a state.
Got the vote tally, the individual votes, *and* the majority basis for the decision correct......
Now it is precedent (for whatever liberals view precedent as....)
Edited to add: finished an actual read of the decision and dissent. I was galled (but not surprised) by Kagan's dissent. Paraphrase: Since when is the Supreme Court shy about its own institutional capability to micromanage American society? We meddle in *everything.* Apparently the ability of a state to self-regulate through its own legislature, or the ability to self-regulate through a state constitution, or the ability of the US Congress to regulate through legislation *cannot be fathomed* in the slightest..... this Justice hasnt any idea of judicial restraint in the absolute slightest.
Here is the 'tell' line: "federal courts across the country....have largely converged on a standard for adjudicating partisan gerrymandering claims", and then goes on to say why this standard should be put into place immediately. In other words, the progressive playbook: when the last whistle blows, make sure you have a federal court case to file and a judiciary who is more than willing to sit in the place of whom should actually make a decision. And whine, scream, and ***** about unfairness and try to have that 'unfairness' labeled as 'unconstitutional' under some will o' wisp idea du jour.
I dont see a long, fuzzy, warm relationship between her and Gorsuch.
(This post was last modified: 06-27-2019 01:01 PM by tanqtonic.)
(06-25-2019 03:59 AM)tanqtonic Wrote: 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.
I think we both agree on your first point--right to the basic code itself.
The second argument is admittedly more nuanced, and as you might perhaps guess, I'm generally all for private enterprise and capitalism. However, in this instance, I believe the 11th Circuit Court's argument is the people are involved in the ownership of something produced through the auspices of the state. That a private company(ies) might be enlisted at some point to assist as contractors in the production or dissemination of the annotated code seems to me not as clearly to necessarily totally negate the people's right to the access to that additional information in this way. Particularly for those who are pro-se, it strikes me as almost, I'm looking for the right word here, something like "royalist' to deny the access in the way sought. While both sides have compelling arguments, tie should go to the runner, in this case, it seems more appropriate the "We The People" should benefit more if one has to choose.
The issue really isn't nuanced at all. What you are arguing is akin to a 'living law', which although I agree with the outcome, I heartily disagree in the way to get there. Much as I detest the idea of a 'living Constitution'.
The Copyright law explicitly bars copyright protection for works of the US Government. This bar does *not* extend to works of state governments, and for works that are otherwise copyrightable. The law only specifically includes the US government in this sense.
Annotation works are black letter law copyrightable.
And state governments can hold valid copyrights to works that they produce. Or have done for them with a proper 'work for hire' relationship -- which is the case here.
The U.S. Copyright Office gives guidance that "Works (other than edicts of government) prepared by officers or employees of any government (except the U.S. Government) including State, local, or foreign governments, are subject to registration if they are otherwise copyrightable."
Would I support a change in the 17 USC to address a different outcome here? Undoubtedly.
But the means to do this via 'judicial veto' like is happening here is simply downright repugnant.
GoodOwl, I agree with your 'end result', and dont think that works of the individual state governments should be copyrightable. But in this instance the black letter law is absolutely clear. It is nowhere near nuanced.
Aha. Thank you for that clarification and referencing the copyright information. I have dealt only cursorily with copyright, and my "legal experience" would not approach that of a bar-admitted attorney.
Well would also characterize myself as being generally indisposed to a "living Constitution" in the way you describe, so after reading your perspective here, I'd have to revise myself and concede that I agree the law would better be changed legislatively and perhaps this particular court action might not be the best way to do it.
Thank you for the clarification to assist my perspective.
(06-26-2019 11:15 AM)mrbig Wrote: I suspect you and I have different views on how the Court has deviated from Constitutional principles, but that doesn't really matter for purposes of my proposal. If you feel like using a robbed bank metaphor to describe my proposal, I think the better metaphor is that the bank is robbed so now we are beefing up security to make sure it isn't robbed again. You seem to want all money returned to the bank.
You aren't really all that explicit about how you would fix things. I can see two waysto undo the bank theft. First, the USSC overturn a prior decision (which happens frequently and can be done at any time). Second, it can be done with a Constitutional amendment at any time (though getting one passed is certainly challenging). Perhaps a third way would be for Congress to pass a statute, but that would be at best tinkering around the edges (and could be overturned by the judiciary).
If you are talking about a Constitutional amendment, what you want to do is considerably more challenging than my proposal. My proposal is really a 1st step, it doesn't have to be the last step.
I think you understand where I'm coming from, and I appreciate that. I'd agree that metaphorically, it would be most equitable for the money to first be returned."
Although Constitutional Amendments are a possibility, I'd also agree that there are more readily expedient methods. The statutory one, would be subject to be reversed again. I'd prefer the Court itself overturn and rethink it's prior rulings. Dred Scott illustrated that the court is not infallible in its reasoning. Nuremberg pointed to the truth that there is a higher authority and law all human beings must answer to beyond and above any individual nation's laws, courts or any internationally agreed laws or courts.
Sometimes it takes injustices and atrocities to bear themselves out before people realize what they have wrought. Sometimes, people find themselves in a usually unchosen situation where the right thing to do is to bear out witness of the injustices done by the best intentions of the law, the courts and the lawmakers. These are hard burdens, but those who carry them are some of history's real heroes, though many do so in relative anonymity beyond their associated suffering.
Our Constitution and the associated Constitutional Republic in which we now live (the United States of America) has for all its flaws, seemed man's best attempt to get governing a society right. Pure Democracy breeds chaos and is easily swayed to its own destruction. Other more "organized" forms of government have proven unsuccessful at best and despotic at worst. Monarchies, Dictatorships and Empires are too reliant on the individual objective goodness of one person, whom is too easily swayed by the intoxication of power over others the position brings, which is inherently human.
One has to be impressed with the enlightened insight of many of our Nation's Founding Fathers, who though imperfect themselves, at least started with a universal idea of where man's rights originated and how they were endowed. Muddling through 250 years later, our institutions are bound to go astray at times, and they have, and most likely will again despite our valiant attempt to remedy them. For men to govern well, they must first be willing to govern themselves. For men to govern themselves, they must first admit to a rule of governance that originates its authority outside themselves or their own creation, then seek to understand laws, rulings and decisions within the context.
Jefferson, in editing and consolidating the ideas presented to him for our Declaration of Independence, appealed directly and incontrovertibly to the source of the power of man and his governments. To the extent we deviate from that enlightened viewpoint, is the extent we perpetrate tyranny on ourselves and our posterity. To the extent we submit to that truth is the extent injustice, poverty, war and crime vanish form the face of the Earth. We live in a time when the courts have been overtaken by those who reject the basic principle that underlies the power and authority of the Constitution that they derive their very office and authority from. In time, history will reveal the error of their ways, as it has already done to many.
I was talking with a colleague last night and he made an interesting point.
Last year SCOTUS waxed the trademark prohibition on 'disparaging' marks (the 'Slants' case).
Just recently they waxed the 'scandalous' and 'offensive' prohibitions (the 'FUCT clothing' case). (sorry 93, forgot to add my warface to that description. But.... it *is* that actual name and mark in dispute....)
In both instances they noted that the government, to have any heft behind their position, had to take the position that the government can engage in viewpoint based regulation, and each time the court voided that position.
It appears now that many law firms are soliciting lawsuits based on university speech codes, since the position taken by the universities in such speech codes almost invariably has to embody viewpoint regulation (i.e. offensive, or immoral speech).
Further, these cases give a huge legal buttress to the Trump administration executive order on campus free speech, which goes even further by covering private schools that “interfere with free speech”.
My colleague said that this executive order avenue coupled with these decisions opens up a whole new litigation ballpark in very, very short order.
(This post was last modified: 06-29-2019 11:17 AM by tanqtonic.)
(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.
Update: As of July 1, I am four-for-four! In addition to the two merits predictions mentioned earlier, I also correctly predicted two certiorari denials that came out later.
But again, just about anyone could have made the same predictions...
Quote:Supreme Court Associate Justice Ruth Bader Ginsburg missed oral argument Wednesday because of a stomach illness, less than three months after completing treatment for her fourth bout with cancer.
Ginsburg, 86, was "indisposed," Chief Justice John Roberts announced from the bench. But he said she would participate in deciding the two cases argued Wednesday by reading briefs and the transcript of the oral argument.
If any of you Supreme Court junkies are looking for 90 minutes of action-packed excitement, I will be giving an updated look at the Supreme Court's IP cases in a webinar on December 5 for the American Bar Association:
"The Supreme Court's Year in Intellectual Property" https://www.americanbar.org/events-cle/m...389448355/
Thursday, December 5
1:00 pm Eastern (even though the ABA is headquartered in Chicago, it lists all its times in Eastern)
I promise that it will be every bit as interesting as it sounds.
The IP webinar of the year begins in just under three hours, at 12 Central / 1 pm Eastern today. Please join me and my colleagues Leisa Talbert Peschel and Jeffrey Whittle as we dissect the Supreme Court's intellectual property cases, including the software case of the century. You can register here: https://www.americanbar.org/events-cle/m...389448355/
I know that you've all been waiting breathlessly to read the materials from my Supreme Court talk.
Well, here you go: https://www.americanbar.org/events-cle/a.../pt1912sc/
The ABA requires presentations like this to have at least three speakers, so when I was first asked to do this talk, I enlisted two other patent attorneys here in Houston to do it with me. Of the four parts to the talk, I presented part 1 (recently issued decisions) and part 4 (cases still being briefed, including the gigantic Google v. Oracle dispute). Another attorney did part 2 (cases recently argued but not yet decided), and another did part 3 (cases with oral argument coming up). Then we all went to lunch together, which was a very enjoyable time.
To be clear, the slides were background for our oral presentation; we did not simply recite the slides aloud.
Another quirk of ABA webinars is that the technical instructions and speaker intros do not count toward continuing education credit, so that in order for the webinar to qualify for 1.5 hours, the elapsed time has to be more like 1 hour 35 minutes. Most states are not quite that strict, but evidently some are, and ABA follows the rules of the most-strict state.
One of my colleagues suggested that I expand the Google v. Oracle discussion into a stand-alone webinar for early spring. I may do that. It is a HUGE and fascinating case, with no shortage of commentary.
Here's one that probably won't be controversial (not) : In light of the complete idiocy of open borders and open checkbooks for other nation's problems, maybe Plyler v. Doe should be revisited (re: consequences)?
"CHIEF JUSTICE BURGER, with whom JUSTICE WHITE, JUSTICE REHNQUIST, and JUSTICE O'CONNOR join.
Were it our business to set the Nation's social policy, I would agree without hesitation that it is senseless for an enlightened society to deprive any children -- including illegal aliens -- of an elementary education. I fully agree that it would be folly -- and wrong -- to tolerate creation of a segment of society made up of illiterate persons, many having a limited or no command of our language. However, the Constitution does not constitute us as "Platonic Guardians," nor does it vest in this Court the authority to strike down laws because they do not meet our standards of desirable social policy, "wisdom," or "common sense." See TVA v. Hill, 437 U.S. 153, 194-195 (1978). We trespass on the assigned function of the political branches under our structure of limited and separated powers when we assume a policymaking role as the Court does today.
The Court makes no attempt to disguise that it is acting to make up for Congress' lack of "effective leadership" in dealing with the serious national problems caused by the influx of uncountable millions of illegal aliens across our borders.
The failure of enforcement of the immigration laws over more than a decade and the inherent difficulty and expense of sealing our vast borders have combined to create a grave socioeconomic dilemma. It is a dilemma that has not yet even been fully assessed, let alone addressed. However, it is not the function of the Judiciary to provide "effective leadership" simply because the political branches of government fail to do so.
The Court's holding today manifests the justly criticized judicial tendency to attempt speedy and wholesale formulation of "remedies" for the failures -- or simply the laggard pace -- of the political processes of our system of government. The Court employs, and, in my view, abuses, the Fourteenth Amendment in an effort to become an omnipotent and omniscient problem solver. That the motives for doing so are noble and compassionate does not alter the fact that the Court distorts our constitutional function to make amends for the defaults of others.
In a sense, the Court's opinion rests on such a unique confluence of theories and rationales that it will likely stand for little beyond the results in these particular cases. Yet the extent to which the Court departs from principled constitutional adjudication is nonetheless disturbing.
I have no quarrel with the conclusion that the Equal Protection Clause of the Fourteenth Amendmentapplies to aliens who, after their illegal entry into this country, are indeed physically "within the jurisdiction" of a state. However, as the Court concedes, this "only begins the inquiry." Ante at 215. The Equal Protection Clause does not mandate identical treatment of different categories of persons. Jefferson v. Hackney, 406 U.S. 535, 549 (1972); Reed v. Reed, 404 U.S. 71, 75 (1971); Tigner v. Texas, 310 U.S. 141, 147-148 (1940).
Congress, "vested by the Constitution with the responsibility of protecting our borders and legislating with respect to aliens," ante at 237 (POWELL, J., concurring), bears primary responsibility for addressing the problems occasioned by the millions of illegal aliens flooding across our southern border. Similarly, it is for Congress, and not this Court, to assess the "social costs borne by our Nation when select groups are denied the means to absorb the values and skills upon which our social order rests." Ante at 221; see ante at 223-224. While the "specter of a permanent caste" of illegal Mexican residents of the United States is indeed a disturbing one, see ante at 218-219, it is but one segment of a larger problem, which is for the political branches to solve. I find it difficult to believe that Congress would long tolerate such a self-destructive result -- that it would fail to deport these illegal alien families or to provide for the education of their children. Yet instead of allowing the political processes to run their course -- albeit with some delay -- the Court seeks to do Congress' job for it, compensating for congressional inaction. It is not unreasonable to think that this encourages the political branches to pass their problems to the Judiciary.
The solution to this seemingly intractable problem is to defer to the political processes, unpalatable as that may be to some."
(This post was last modified: 01-13-2020 09:23 PM by GoodOwl.)
(02-09-2020 02:44 PM)GoodOwl Wrote: Been in theaters two weeks; great film, really shows how an independent thinker develops his philosophy:
link: http://www.justicethomasmovie.com/
Quote:Although Clarence Thomas remains a controversial figure, loved by some, reviled by others, few know much more than a few headlines and the recollections of his contentious confirmation battle with Anita Hill.
With unprecedented access, the producers interviewed Justice Clarence Thomas and his wife, Virginia, for over 30 hours of interview time, over many months. Justice Thomas tells his entire life’s story, looking directly at the camera, speaking frankly to the audience. After a brief introduction, the documentary proceeds chronologically, combining Justice Thomas’ first person account with a rich array of historical archive material, period and original music, personal photos, and evocative recreations. Unscripted and without narration, the documentary takes the viewer through this complex and often painful life, dealing with race, faith, power, jurisprudence, and personal resilience.
n 1948, Clarence Thomas was born into dire poverty in Pin Point, Georgia, a Gullah- speaking peninsula in the segregated South. His father abandoned the family when Clarence was two years old. His mother, unable to care for two boys, brought Clarence and his brother, Myers, to live with her father and his wife. Thomas’ grandfather, Myers Anderson, whose schooling ended at the third grade, delivered coal and heating oil in Savannah. He gave the boys tough love and training in hard work. He sent them to a segregated Catholic school where the Irish nuns taught them self-discipline and a love of learning. From there, Thomas entered the seminary, training to be a priest.
As the times changed, Thomas began to rebel against the values of his grandfather. Angered by his fellow seminarians’ racist comments following the assassination of Martin Luther King, Jr. and disillusioned by the Catholic Church’s general failure to support the civil rights movement, Thomas left the seminary. His grandfather felt Thomas had betrayed him by questioning his values and kicked Thomas out of his house. In 1968, Thomas enrolled as a scholarship student at the College of the Holy Cross in Massachusetts. While there, he helped found the Black Student Union and supported the burgeoning Black Power Movement.
Then, Thomas’s views began to change, as he saw it, back to his grandfather’s values. He judged the efforts of the left and liberals to help his people to be demeaning failures. To him, affirmative action seemed condescending and ineffective, sending African-American students to schools where they were not prepared to succeed. He watched the busing crisis in Boston tear the city apart. To Thomas, it made no sense. Why, he asked, pluck poor black kids out of their own bad schools only to bus them to another part of town to sit with poor white students in their bad schools?
At Yale Law School, he felt stigmatized by affirmative action, treated as if he were there only because of his race, minimizing his previous achievements. After graduating in 1974, he worked for then State Attorney General John Danforth in Missouri, eventually working in the Reagan administration, first running the Civil Rights Division of the Department of Education and then the Equal Employment Opportunity Commission. In 1990, he became a judge on the U.S. Court of Appeals for the District of Columbia Circuit.
In 1991, President George H.W. Bush nominated Clarence Thomas to the Supreme Court. His confirmation hearings would test his character and principles in the crucible of national controversy. Like the Bork hearings in 1987, the Democrats went after Thomas’ record and his jurisprudence, especially natural law theory, but also attacked his character. When that failed, and he was on the verge of being confirmed, a former employee, Anita Hill, came forth to accuse him of sexual harassment. The next few days of televised hearings riveted the nation. Finally, defending himself against relentless attacks by the Democratic Senators on the committee, Thomas accused them of running “a high-tech lynching for uppity blacks who in any way deign to think for themselves, to do for themselves, to have different ideas.” After wall-to-wall television coverage, according to the national polls, the American people believed Thomas by more than a 2-1 margin. Yet, Thomas was confirmed by the closest margin in history, 52-48.
In his 27 years on the court, Thomas’s jurisprudence has often been controversial—from his brand of originalism to his decisions on affirmative action and other hot button topics. Critical journalists often point out that he rarely speaks in oral argument.
The public remains curious about Clarence Thomas—both about his personal history and his judicial opinions. His 2007 memoir, My Grandfather’s Son, was number one on The New York Times’ bestseller list.
On Thursday, July 9, I am giving a talk on Google v. Oracle, the blockbuster case on software copyright that is now before the Supreme Court. My talk is part of a State Bar conference call Advanced Intellectual Property Litigation 2020. The conference (now virtual) is far too expensive to tune in just for fun, but if anyone would like a sneak peek at my presentation, just let me know.
The COVID19 pandemic has affected my presentation in two ways:
1. On a substantive level, I've had to shift the focus of the talk. Since the Supreme Court case was originally scheduled for oral argument on March 24, with a decision expected in late June, my talk on July 9 was supposed to be a review and assessment of the opinion and its implications. But the pandemic has postponed oral argument to this fall (the date has still not been set), so all I can do is preview the case. Still, it's an interesting story; the case is called Google v. Oracle, but it could equally be called Android v. Java, and it's very much a story of Silicon Valley, starting with Sun Microsystems in the 1980s.
2. On a personal level, I'm missing out on what would have been a nice little paid vacation. The conference was scheduled to be at the Four Seasons Las Colinas outside Dallas, and as a speaker I get free registration, room, and travel. And since my talk is scheduled for the very first time slot of the first day, I could have spent the rest of the two days relaxing at the resort: swimming, playing tennis, and so on. With the conference necessarily shifting to online, those perks have evaporated into the ether. Oh well!
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Rice Quad Supreme Court / Legal Decisions Thread
begins in just under three hours, at 12 Central / 1 pm Eastern today. Please join me and my colleagues Leisa Talbert Peschel and Jeffrey Whittle as we dissect the Supreme Court's intellectual property cases, including the software case of the century. You can register here: 
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