The U.S. Patent and Trademark Office may have a major problem on its hands -- the possibly unconstitutional appointment of nearly two-thirds of its patent appeals judges.  Read more about this case here.

  Translogic Technology, a company whose patent was rejected, is raising this issue in a petition to the U.S. Supreme Court.   A copy of the petition is available for viewing at the Law Library Reference Desk.
 

The House Oversight and Government Reform’s Subcommittee on Information Policy, Census, and National Archives held a hearing yesterday to address the Electronic Communications Preservation Act (H.R. 5811), sponsored by Chairman of the Committee Henry Waxman (D-CA-30), Chairman of the Subcommittee Wm. Lacy Clay (D-MO-1), and Rep. Paul Hodes (D-NH-2). The bill directs the Archivist of the United States to establish standards for the capture, management, retrieval, and preservation of White House e-mails and other electronic communications. The Committee’s Press Release, summary of the bill, and full text of the bill is available here.  Transcripts from the hearing are posted here.

Under the Federal Records Act, the National Archives and Records Administration (NARA) is responsible for assisting Federal agencies in maintaining adequate and proper documentation of federal records.  Given the increased use of electronic communications, federal agencies are potentially creating (and discarding) messages that have the status of federal records.  According to a new report issued by the Government Accountability Office (GAO), when GAO reviewed the e-mail management practices of four senior agencies officials they found that, although the agencies’ e-mail records management policies addressed the regulatory requirements, these requirements were not always met for the senior officials.

Dan Kahan, Cultural Cognition as a Conception of the Cultural Theory of Risk

Abstract: Cultural cognition refers to the tendency of individuals to form beliefs about societal dangers that reflect and reinforce their commitments to particular visions of the ideal society. Cultural cognition is one of a variety of approaches designed to empirically test the cultural theory of risk associated with Mary Douglas and Aaron Wildavsky. This commentary discusses the distinctive features of cultural cognition as a conception of cultural theory, including its cultural worldview measures; its emphasis on social psychological mechanisms that connect individuals' risk perceptions to their cultural outlooks; and its practical goal of enabling self-conscious management of popular risk perceptions in the interest of promoting scientifically sound public policies that are congenial to persons of diverse outlooks.

 The Law Library of Congress is hosting two articles by Louis Fisher on Constitutional problems raised by the military commissions/tribunals authorized by President Bush.  The site also provides reference to two book-length treatments of the subject by Fisher.

A new article by a member of our faculty has come to our attention.  Here is the opening:

In December 2006, the British Serious Fraud Office (SFO) closed an investigation into a case that has become a vexing test for the emerging international anti-corruption regime. The centerpiece of this regime is the Anti-Bribery Convention negotiated under the auspices of the Organisation for Economic Co-operation and Development (OECD). The Convention—to which Britain is a party—requires the State Parties to outlaw overseas bribery. In closing the investigation into corruption involving a large defense procurement contract (dubbed Al Yamamah or “the dove”), the SFO and the Attorney General cited national security concerns.

 Susan Rose-Ackerman and Benjamin Billa, Treaties and National Security, 40 N.Y.U. J. Int'l L. & Pol. 437 (2008).

 The NYU Journal of Law and Politics has more (the whole article :-)).
 

 The Yale Law Library Reference Department is hosting two brief, convenient and informative Out-the-Door sessions.  Come get the information you need about using the law library – and what the library staff can do for you – this summer.  The half-hour sessions are very informal.  Just show up, pick up a handout, ask questions, and get answers.  You’ll be in and out in about half an hour.

The schedule is:

Session One:

4/24/2008   11:30 a.m. to  12:00 p.m.  SLB Room 109 

Session Two:
4/25/2008   10:10 a.m.  10:40 p.m. SLB Room 109

You don’t need to sign up -- just show up. We hope to see you next Thursday or Friday of next week!

Professor Siegel has posted on SSRN a version of a paper to be published in the Duke Law Journal.  The paper is entitled: "The Right's Reasons: Constitutional Conflict and the Spread of Woman-Protective Antiabortion Argument". Here is the abstract:

"This Lecture investigates the social movement dynamics that produced woman-protective antiabortion argument. The Lecture explores the political conditions under which leaders of the antiabortion movement began to supplement or even to supplant the constitutional argument abortion kills a baby with a new argument, abortion hurts women - a claim that achieved widespread public notice with the Supreme Court's 2007 decision in Gonzales v. Carhart.

The Lecture's genealogy of a social movement claim begins in the 1980s, when members of the antiabortion movement asserted that abortion subjects women to regret, trauma, and psychological illness, a condition they termed post-abortion syndrome (PAS). My story then follows changes in the abortion-harms-women claim as it was transformed from PAS - a therapeutic discourse initially employed to dissuade women from having abortions and to recruit women to the antiabortion cause - into woman-protective antiabortion argument (WPAA), a political discourse forged in the heat of social movement conflict that sought to persuade audiences outside the movement's ranks in electoral campaigns and in constitutional litigation.

Whereas PAS grew up as a mobilizing discourse deployed primarily among women volunteers and clients in the antiabortion movement's crisis pregnancy network - a context in which abortion-hurts-women testimonials had important expressive functions - WPAA took shape in political contexts in which the abortion-hurts-women argument had important strategic functions. In the 1990s, antiabortion advocates sought to explain to audiences that ambivalently supported the abortion right why women would benefit from legal restrictions on abortion. As they did so, they fused PAS claims and stories with traditional gender-paternalist argument, justifying restrictions on women's agency as needed to protect women from male coercion and to free women to be mothers. As a political discourse designed to rebut feminist, pro-choice claims, WPAA came to internalize elements of the very arguments it sought to counter - fusing the public health, trauma, and survivors idiom of PAS with the idiom of the late twentieth-century feminist and abortion-rights movements. As the Lecture shows, social movement mobilization, conflict, and coalition each played a role in the evolution and spread of the woman-protective antiabortion argument, in the process forging new and distinctly modern ways to talk about the right to life and the role morality of motherhood in the therapeutic, public health, and political rights idiom of late twentieth-century America.

The Lecture concludes by considering the new gender-paternalist justifications for abortion restrictions discussed in Carhart. With the spread of woman-protective antiabortion argument and its seductively modern justifications for using law to impose motherhood on women, Justice Kennedy and the nation will once again have to decide - not only how to balance the liberty of the pregnant woman against the state interest in protecting potential life - but more fundamentally, about the kind of women that constitutional guarantees of liberty and equality protect. This question is far from abstract, as South Dakota once again considers whether to adopt an abortion ban, justified by fetal-protective and woman-protective argument, in the 2008 elections."

 More great information from the Law Library of Congress, this time on the State Secrets Privilege.  Here you will find links to several articles, statements, and other material by Louis Fisher regarding the privilege in this decade.

Cambridge University Press, Oxford University Press and Sage Publications are suing Georgia State University, contending that the school is violating copyright laws by enabling professors to provide students with digital copies of copyrighted course readings published by the plaintiffs.  The New York Times has a synopsis of the lawsuit here.

 A copy of the complaint may be found here, from the Association of American Publishers' (AAP) website.

Professor Listokin recently posted a new paper entitled "Does Shareholder Voting Maximize Stock Market Value."  Here is the abstract:

"This paper examines the relation between shareholder voting and stock market value from a novel empirical perspective. If voting maximizes value, then the outcome of close proxy contests should not have a systematic effect on stock prices; price setters will anticipate that voting aggregates information efficiently and will build this expectation into the price of the stock before the voting outcome is announced The paper shows, however, that close dissident victories are associated with significant positive movements in stock prices, while close management victories are associated with negative stock price effects. This suggests that voting outcomes favor management rather than maximizing value, with important policy ramifications. Viewed from a regression discontinuity (RD) design perspective, the study provides unique evidence that dissident control of decision making causes increases in stock value."

One of the great early American examples of a lawyer ensuring that unpopular defendants got a fair trial, even defendants with whom the lawyer may have disagreed took place in Boston in 1770.  The lawyer was John Adams and the defendants were the British soldiers who were accused of murder from their involvement in the Boston Massacre of March 5, 1770.

 The Law Library of Congress has posted copies of three published accounts of the records and transcripts of the trial, a history of the Massacre and trial, and a character sketch of Adams that includes his Speech on the Boston Massacre.

Great reading on one of the great ethical responses of the revolutionary bar!!

 Sometimes the Internet feels slow and there has been a lot of scary press recently about it slowing down further as it gets more congested.  Well, maybe we don't have to worry.  CERN who brought you the web (and has a hand in the new supercollider) has announced the "grid" a communications network with speeds up to 10000 times faster than the internet!

 Article 9 of the Japanese Constitution renounces war and prohibits Japan from maintaining the potential to make war.  Over the past few years, the very popular provision has been getting a lot of attention as Japan has more often participated in UN peacekeeping activities.  It now appears that Article 9 will be amended within the next several years.  A report written by the Japanese Foreign Law Specialist within the Directorate of Legal Research for International, Comparative, and Foreign Law of the Law Library of Congress has more.

 Parliament is debating a new counter-terrorism bill, it had it's second reading on the 1st.  The main elements of the bill are:

" 

• a provision to allow the pre-charge detention of terrorist suspects to be extended from 28 days to 42 days in certain circumstances
• changes to enable the post-charge questioning of terrorist suspects and the drawing of adverse inferences from silence
• imposing requirements on people convicted of terrorist offences to let authorities know where they are living and any changes to their circumstances
• enhanced sentencing of offenders who commit offences with a terrorist connection
• provision for inquests and inquiries to be heard without a jury."

 By the way, Parliament has a wonderful bill site, no?