Monday, June 26, 2017

Verb That Adjective Noun! “Google” Is Not (Yet) Generic. | LIKELIHOOD OF CONFUSION®

In David Elliot v. Google, Inc. the Ninth Circuit last month rejected the argument that Google is a victim of genericide: that as a verb google it is synonymous with search on the internet.  In such cases - Murphy beds are a prime example - the term loses its ability to identify the source.

Verb That Adjective Noun! “Google” Is Not (Yet) Generic. | LIKELIHOOD OF CONFUSION®

Friday, June 23, 2017

Balkinization: Some preliminary thoughts on Matal v. Tam, Trademarks, and the First Amendment [UPDATED]

Rebecca Tushnet's 43(B)log: Slightly cooler take on Tam

Balkinization: Some preliminary thoughts on Matal v. Tam, Trademarks, and the First Amendment [UPDATED]

Marty Lederman

 The constitutional analysis in the Supreme Court's decision yesterday in Matal v. Tam is, with one exception, split between two four-Justice opinions, the first written by Justice Alito (joined by the Chief Justice, and Justices Thomas and Breyer), and the second written by Justice Kennedy (joined by Justices Ginsburg. Sotomayor and Kagan).   Here are a few preliminary reactions to those opinions.

The Torturers Speak - The New York Times

OTHERWISE: The Torturers Speak - The New York Times

Tuesday, June 20, 2017

Balkinization: SCOTUS blocks Bivens actions by tortured 9/11 detainees

OTHERWISE: Balkinization: SCOTUS blocks Bivens actions by tortured 9/11 detainees

Deborah Pearlstein
The Supreme Court’s decision yesterday in Ziglar v. Abbasi is an abysmal result for those who believe there should be some remedy available when the government violates your constitutional rights – even if Congress has not gotten around to enacting separate legislation creating one.   As others have by now pointed out, it is abysmal as an exercise in legal reasoning as well, whether one agrees with the outcome or not.  What it should not be, as some colleagues have suggested, is fodder for the broader debate – about which I wrote last week in the Trump immigration order context, below – about whether and when the President’s reasoning is entitled to judicial deference in matters of national security. 

 It should perhaps go without saying that the question of executive deference in the immigration order cases – about whether to defer to the executive’s interpretation and application of a statute, or to the executive’s statement of his motive for constitutional purposes – is importantly different from the doctrinal context in which deference arose in Ziglar. Here, in assessing whether or not to imply the existence of a cause of action to sue for money damages for violation of a constitutional right, the Court attended to longstanding (though perhaps not for much longer standing) criteria, including whether “special factors” might counsel hesitation before the courts imply a remedy when Congress had offered none.  Finding such “special factors” present here (more on which anon), the 4-justice majority in Ziglar declined to recognize the availability of a civil remedy for constitutional violations surrounding plaintiffs’ post-9/11 detention.  The result, however wrong, was in no sense surprising.  It has famously been more than three decades since the Court has found a context in which it has thought a judicially implied right to sue for constitutional violations warranted.  Put differently, in the modern Court “special factors,” whatever they may be, have invariably counseled hesitation.  Somewhere in existing canons of judicial prudence, the modern Court has always found a reason why no remedy may be had.

Fair enough, one might respond, but among several reasons Justice Kennedy’s opinion identifies for not recognizing a right to sue here is the argument that plaintiffs’ suit challenged not only the abusive conduct of particular law enforcement officials, but also “elements of the Government’s whole response to the September 11 attacks, thus of necessity requiring an inquiry into sensitive issues of national security.”  The opinion then offers a few boilerplate paragraphs (written as if a clerk had been instructed to hit the “Alt-F7” Executive Deference key) invoking historic (and substantively unrelated) cases in which the Court has recognized (among other things) the President’s entitlement to deference on questions of national security.  Had the opinion left it there, notwithstanding the uniquely disfavored doctrinal context, I might have wondered more whether this language signaled a return to an era of more judicial deference to presidential decision-making.  Happily (in one sense, for no one should welcome a Supreme Court opinion this weakly argued), the very next paragraph hits the “Alt-F8” key, listing cases in which the Court has insisted (in Justice O’Connor’s popular terms) that “[w]hatever power the United States Constitution envisions for the Executive . . . in times of conflict, it most assuredly envisions a role for all three branches when individual liberties are at stake.”

Having put the two conflicting canons on the table, even the modestly sage law student exam writer knows the money paragraph must follow. That is, the opinion’s next move must be to explain why the present case more directly implicates the one set of concerns rather than the other.  Herewith, the Ziglar opinion’s money paragraph (on this topic) in its entirety.

Even so, the question is only whether “congressionally uninvited intrusion” is “inappropriate” action for the Judiciary to take. Stanley, 483 U. S., at 683. The factors discussed above all suggest that Congress’ failure to provide a damages remedy might be more than mere oversight, and that congressional silence might be more than “inadvertent.” Schweiker, 487 U. S., at 423. This possibility counsels hesitation “in the absence of affirmative action by Congress.” Bivens, 403 U. S., at 396.

In other words, notwithstanding any question of the executive’s entitlement to deference on questions of national security policy nominally invoked in the preceding paragraphs, what we’re really basing our decision on here is something else entirely – namely, as best I can make out, that it is more reasonable to interpret congressional silence as congressional opposition when it comes to the availability of remedies for unconstitutional government conduct ostensibly carried out for the purpose of protecting national security.  One could set aside I suppose the long list of dangers associated with trying to intuit the intent of a collective body at all, much less a collective body whose relevant action here is to have said nothing one way or another.  One might equally wonder whether precisely the opposite presumption is required about congressional views when it comes to matters of national security – for example, because Congress’ established political incentives against taking any action on any question of national security are by now so apparent, it should be assumed Congress approves of another branch’s conduct (whether the use of force against ISIS or the implication of judicial remedy for a violation of individual rights) unless Congress says otherwise.  One might set all this aside in rejecting the decision’s import for executive deference, because this reasoning has nothing to do with the Executive at all, but rather to how the Court should interpret Congress’ failure to enact a statutory cause of action on which plaintiffs could otherwise rely.  

Ziglar is a bad outcome for judicial enforcement of constitutional rights, no doubt. But grounds for celebration that the Court might look more favorably on Trump’s immigration justification after all?  That I don’t see.

Wednesday, May 3, 2017

James Comey Is ‘Mildly Nauseous’ About the Election. It’s Not Enough. - The New York Times

James Comey Is ‘Mildly Nauseous’ About the Election. It’s Not Enough. - The New York Times

by Andrew Rosenthal

Not only did [FBI Director James] Comey probably tip the election to Donald Trump; he also handled the investigations of Clinton’s emails and Trump’s strange relationship with the Kremlin in entirely different ways. He treated Trump with the Federal Bureau of Investigation’s customary silence about ongoing probes. He talked about the Clinton investigation in extremely public and damaging ways.
When Comey decided to announce the reopening of the Clinton email probe, he had no solid evidence that there was any significant new information on the newly discovered computer, belonging to the disgraced former congressman Anthony Weiner, that sparked the renewed investigation.

The Color of Law: Forgotten history: how the federal government segregated America

Forgotten history: how the federal government segregated America
Terry Gross interviews Richard Rothstein, author of The Color of Law

CPSC commissioner Kaye on proposed table saw rule

Monday, January 30, 2017

How Jeff Sessions Helped Kill Equitable School Funding in Alabama - ProPublica

OTHERWISE: How Jeff Sessions Helped Kill Equitable School Funding in Alabama - ProPublica

Alabama schools - long segregated by law - created inferior schools - especially majority Black schools which got particularly low funding.  When a court was about to impose equitable funding, Jeff Sessions - then the state's Attorney General - fought back.

Friday, January 6, 2017

Safety of Non-Steroidal Anti-Inflammatory Drugs (NSAIDs) - Medical News Bulletin

Safety of Non-Steroidal Anti-Inflammatory Drugs (NSAIDs) - Medical News Bulletin

A recently developed category of NSAIDs, the world’s highly-demanded class of drugs, was associated with some concerns about their cardiovascular side effects that led to discontinuation of one of the two drugs of this new category. New research findings compare the side effects of Celecoxib, the only remaining drug of this category, with two other commonly prescribed NSAIDs, Ibuprofen and Naproxen.

 Non-Steroidal Anti-Inflammatory Drugs (NSAIDs) are a class of drugs that were introduced in the 1960s and are widely used to reduce pain, inflammation, and fever associated with a vast variety of conditions from rheumatoid arthritis and viral or bacterial infections, to common muscular or joint pains and even simple headaches.

The main flaw of NSAIDs is the alteration of protective mechanisms of the stomach mucosal membrane, due to their non-specific action, that leads to gastrointestinal complications. A new strand of this class of drugs including Rofecoxib and Celecoxib, with a specific action – to target pain and inflammation while avoiding the stomach mucosal receptors – was produced a number of years ago. But later, in 2004, Rofecoxib was withdrawn from the market after evidence of its cardiovascular side effects. Celecoxib, however, could remain in the market with permission of Food and Drug Administration (FDA) with the condition of conducting a cardiovascular safety study, after the results of another study showed that its cardiovascular side effects were associated with doses higher than recommended. The results of the Prospective Randomized Evaluation of Celecoxib Integrated Safety versus Ibuprofen Or Naproxen (PRECISION) study have been published recently in the New England Journal of Medicine to fulfill the requirement of that condition.
This randomized clinical trial has been conducted at 926 centers in 13 countries on more than 24,000 patients with rheumatoid arthritis or osteoarthritis who were at an increased cardiovascular risk. Although the study has been sponsored by Pfizer, the main producer of Celecoxib, measures were applied to ensure precision of the process and results of the study. For example, an executive committee, the sponsor and the FDA collaborated in designing the study; the statistical analysis was done by an independent centre that was not aware of which drug was given to each group; and the academic writers who wrote the report were not dependent on the company and were free to decide on the content of the article. The participants of the study were randomly assigned to three groups of about 8,000 patients each, who were prescribed an average recommended daily dose of Celecoxib, Naproxen or Ibuprofen. The dose of each drug could be modified based on the symptoms of each patient. The patients took their medications for an average length of about 20 months and were followed-up for an average of about 34 months.
Comparing events of death or hospitalization due to cardiovascular conditions showed that the patients who received Celecoxib were not at any more cardiovascular risk than patients in the Ibuprofen or Naproxen groups. Other cardiovascular symptoms like coronary revascularization, non-fatal stroke or hospitalization for transient ischemic attack (TIA) were also not reported more often in Celecoxib group than in the Naproxen or Ibuprofen groups. The researchers were not surprised by the results showing less frequent gastrointestinal complications in Celecoxib group than in the other two groups, because this drug had been originally designed to have less gastrointestinal side effects. Renal complications of Celecoxib were less common than that of Ibuprofen and Naproxen, as well.
In conclusion, physicians can prescribe Celecoxib to patients with inflammatory diseases, who have sensitive stomachs, with peace of mind.

Thursday, January 5, 2017

The Search for a Grand Unified Theory of Tort Law - The Search for a Grand Unified Theory of Tort Law

 The Search for a Grand Unified Theory of Tort Law - The Search for a Grand Unified Theory of Tort Law

BOOK REVIEW by Scott Hershovitz

Theorists like to do a lot with a little. And not just because simple theories seem more elegant: we deepen our understanding when we learn that disparate phenomena are linked together. In physics, for example, the theory of thermodynamics showed us the relationship between mechanics and heat. In economics, the theory of the firm showed us that, across industries that look nothing alike, a simple principle helps explain the organization of economic activity. Of course, there is no guarantee that the disparate phenomena we suspect are linked actually are. Particle physicists continue to search for a Grand Unified Theory, which would integrate gravity with the other fundamental forces. It may be that there is no such theory, or that we are not in a position to discover it, even if there is one. But absent such a theory, our understanding of the way the world works seems incomplete. And our track record of linking disparate physical phenomena (mechanics and heat, electricity and magnetism, space and time) gives us good reason to suppose that there are deeper explanations in the offing.
Cover for Private Wrongs

Private Wrongs

By Arthur Ripstein. Cambridge, Mass.: Harvard University Press. 2016. Pp. ix, 313. $49.95.
Legal theorists like to do a lot with a little too, but their track record is decidedly less impressive. John Austin, for example, thought that he could capture the nature of law in a simple slogan: law is the command of the sovereign. H.L.A. Hart showed that Austin’s theory was too simple. Among other problems, some laws are not commands, and some legal systems do not have sovereigns, at least in Austin’s sense. But Hart had a simple theory of his own: a legal system is a union of primary and secondary rules. Alas, Hart’s theory was too simple too. It didn’t distinguish law from other systems with primary and secondary rules (chess, for example, or a university’s regulations). And there are reasons to doubt that rules are the fundamental building blocks of law, or that law even has fundamental building blocks at all. Indeed, it is possible that the connections between the things we regard as legal systems are simply historical, such that there is nothing — or at least nothing significant — that all of them share in common. To make this point, Ronald Dworkin invoked Wittgenstein’s image “of a rope composed of many strands no one of which runs for its entire length or across its entire width.” If law is like that, then the search for a common thread that runs through it, wherever and whenever it is found, is doomed to fail.
But doom does not entail gloom: you can learn a lot from reading Austin and Hart, even though you cannot learn what law is. And you can learn a lot from reading Professor Arthur Ripstein’s provocative new book, Private Wrongs, even though his project is just as doomed as theirs. Ripstein’s target is tort law, and he aims at nothing less than a Grand Unified Theory. He wants to explain both the rights that tort law recognizes and the remedies that it offers. But he is not satisfied with piecemeal explanations of this or that right or remedy. Rather, he says that recognizing “the unity of right and remedy is the key to understanding tort law” (p. ix). And one simple idea, he says, accounts for all of tort’s rights and remedies: no one is in charge of anyone else.