Considering the number of calls we get on this topic and the fact that the America Invents Act substantially changes the post-grant picture, this post is coming late. Apologies for that.  But, the answer is this: the result of patent reexaminations can be found in the Official Gazette.  The Official Gazette is available on Westlaw in the FIP-OG-PAT database and it’s full text searchable. The Manual of Patent Examining Procedure (MPEP) explains that inter-partes reexaminations are assigned series number 95/, ex-partes rexaminations 90/.  See MPEP 503.  So, to search for the results of inter-partes examinations, try this:

95/! and result /10 re-exam!

Additional Resources

For more on reexaminations, check out Inter Partes Reexamination 2d (INTRPARTES), by Matthew A. Smith, an Associate at Foley & Lardner in Washington, D.C.

America Invents Act is currently on Westlaw at  2011 CONG US HR 1249

For commentary on America Invents and post grant review try this search in the Blogs on Demand dabatase (blogsod):

atleast3(re-exam!) and america-invents 1249

or

atleast3(post-grant) and america-invents 1249

Today marks the 40th Anniversary of the beginning of the riots at Attica State Prison in New York.  40 years ago, an organized group of prisoners took control of a wing of Attica state prison, taking more than 30 hostages and holding them until security guards in concert with the military retook the prison on September 13, with casualties in the dozens.  (The sad and grisly details of this event are more fully recounted in Inmates of Attica v. Rockefeller, 453 F.2d 12).

Due to the horrific nature of the events, and the national awareness of them at the time, I wanted to see if there was an appreciable rise in prison litigation in the years following the uprising.  Westlaw has a Topic Number for “Prisons” and related litigation, and because the Prisons heading was fairly inclusive or prisoner’s rights issues, I felt it would be a workable proxy for reported cases on prisoner’s rights.  Running this for the period 1962-1971, then 1972-1981, we see a significant increase in reported prisoner’s rights cases:

310k! & DA(aft 9-13-1961 & bef 9-12-1971): 961 Documents in ALLCASES

310k! & DA(aft 9-13-1971 & bef 9-12-1981): 2795 Documents in ALLCASES

The riots raised awareness about the prison itself.  Just adding the word ‘Attica’ to the above searches reveals this.  in the first search, there were 18 cases that mentioned it, all of them in New York (cases that actually arose from a plaintiff’s stay in Attica).  In the second decade, there were 95 cases, some arising from a range of states, with one reference as far away as Hawaii.  The first case outside New York to mention Attica was published 4 days after the riots ended.  See U.S. ex. Rel Miller v. Twomey, 333 F.Supp. 1352 (N.D. Ill.).

310k! & attica & DA(aft 12-31-1961 & bef 01-01-1972): 18 Documents in Allcases (same as searching New York State and Federal Cases)

310k! & Attica & DA(aft 9-13-1971 & bef 9-12-1981): 95 Documents in Allcases (only 59 when searching New York State and Federal Cases)

While Attica may not have been the initial cause of increased prisoner litigation in the 1970s and beyond, it is certainly one of the most remembered incidents.*

CLE: If you’re interested in learning more about the field of prisoner rights litigation, and some of the hurdles that inmates face even today, there is a CLE Seminar entitled “Representing Plaintiffs in Jail and Prison Litigation” available in the West LegalEdCenter.  It’s accredited for CLE purposes in, among other jurisdictions, New York.

Read the rest of this entry »

In 1990, the United States Patent and Trademark Office (“PTO”) issued a patent for the “Computerized Statistical Football Game” (FIND on Westlaw – US PAT 4918603).   If you go check out Fantasy Sports Properties, Inc. v Sportsline.com, Inc., 287 F3d 1108, you will find that “computerized statistical football” is more commonly known by another name.  That’s right folks – Fantasy Football.  It’s that time of year again, when football fans (like me) start to read the sports section more and tune into sports talk radio.  Some spend hours pouring over statistics to make sure they maximize the potential of their fantasy team.  More than a few will spend some time chatting by the water cooler about how Peyton Manning’s neck injury might impact his performance this year. 

Much has been written about the loss of productivity in the work place because of athletic-centered hobbies such as fantasy football.  A recent survey (see 2011 WLNR 5132371) found that almost half of respondents have participated in office pools in the past.  The most popular pools?  Super Bowl (63%), March Madness (55%) Lottery (28%) Fantasy Football (23 %).  Of those that participated in pools, 57% have attended a company sports event, 33% have watched or followed sports during work hours and 6% have called in sick the day after watching a sports event.  For a more skeptical view of the loss of productivity related to sports obsessions, see How much productivity is really lost because of fantasy football and March Madness?, 2008 WLNR 17991383. 

Here are some work-appropriate football-related research queries: 

Intellectual Property Rights

sy,di(“fantasy football” & patent licens! copyright trademark)

In Westlaw: ALLCASES

In WestlawNext:   All State and All Federal Cases

Sports & Entertainment Law

(player athlete /10 “right of publicity” likeness) /150 “video game” “fantasy football”

In Westlaw:  TP-ALL

In WestlawNext:  From the All Content tab choose Secondary Sources

Employment Law

FIND the following documents on Westlaw or WestlawNext:

Place Your Bet: The Legality of Office Pools, 13 No. 3 HR Advisor: Legal & Practical Guidance ART 7, May/June 2007.

Human Resources Guide § 5:12.50, on Company Rules & Regulations – Employee Office Pools

Securities Law:

To find offerings, mergers, or asset purchases of companies with “fantasy football” interests, type “fantasy football” into the Search Full Text field in EDGAR on Westlaw.  You can further narrow the search, to say S-1’s or 8-K’s, by expanding the “Form Type” menu on the search template.

Evolving computing options impact nearly every business, including the legal profession. Trends in data management have given lawyers the ability to outsource their data storage, often in combination with additional services and programs. Cloud computing:

“[A]llows businesses and individuals to use the Internet to access software programs, applications, and data from computer data centers managed by providers.”  I.B.M. v. Visentin, 2011 WL 672025

There are ethical considerations in placing client information on servers owned by third parties. A service agreement that doesn’t insure confidentially could expose an attorney to accusations of breaches of professional responsibility, or conceivably arguments that work-product or attorney client privileges have been waived. Despite the risks, there are significant advantages to storing information in the cloud. The IT department of the service provider will likely have greater resources to bring to bear in fighting viruses, network breakdowns, and hacking attempts than an average firm has at their disposal. Reductions in staff, equipment, and operating costs make cloud computing an attractive option for firms of all sizes in tight economic times.

Guidance on these issues can be found in the following TP-ALL search: network computer internet website online /s cloud /s ethic! confidential! /s attorney lawyer law-firm. This search yields 24 documents, including discussions of how to set-up secure cloud computing and how state bar associations view questions about a lawyer’s responsibilities toward their clients.

A recent Techdirt post, 2011 WLNR 16217042,  and Fraction Magazine article describe the aggressive police and private security actions against photographers shooting architectural and other common subjects, often from public streets.  Many similar instances of overly zealous law enforcement actions and policies against both professional and amateur photographers have been widely reported online, often named the “war on photography.” Protecting crime scenes, preventing traffic congestion in the interest of public safety, and prohibitions against recording images of military installations and nuclear facilities have long been accepted limitations, but police appear to be increasingly detaining photographers capturing innocuous images of public buildings and transportation infrastructure, confiscating cameras and deleting memory cards with vague but unfounded invocations of  “the 9/11 law” or “preventing terrorism.”

 These incidents raise interesting constitutional and tort law issues for photographers.  How have they been treated in litigation and scholarly works?  Try the following search in Secondary Sources on WestlawNext (TP-ALL on Westlaw):

 TI(constitution! “first amendment” police! “law enforcement” assault batter! conversion & photographer)

 In Pleadings, Motions and Memoranda on WestlawNext (FILING-ALL on Westlaw), try the following:

 photograph! /s police! “law enforcement” security /s detain! detention (reasonab! /3 suspicio!) terry trespass! “public safety” security /p constitution! “first amendment” “fourth amendment” assault! batter! conversion & news! journalis! artistic! esthetic! aesthetic!

As an alternative, try the following plain language query in cases, filings and secondary sources on WestlawNext:

police “law enforcement”  photographer “first amendment” constitution

“Storage Wars” is a popular television show on the A & E cable network. The show follows a regular group of bidders who purchase storage units in an auction format in hopes of finding valuable items they can turn into a profit.  These units come up for sale based on the owner of the units goods failing to pay their bill or abandoning their property. Due to the buzz generated by the show, and other shows like it, this exciting form of “gambling” is growing in popularity.

After watching a few episodes, I couldn’t help but feel a little bad for the original owner of these storage unit items. It’s often evident that these items have sentimental value or are possibly family heirlooms. Check out this article from the Great Falls Tribune that tells the story of these auctions and the reality of how profitable they can be.

The brother of a friend of mine recently got into this game. As it turns out,  the original owner of the goods in the storage unit he purchased found out his name and where he lived. The owner was angry that he would not return her items and began to lurk around their neighborhood and elsewhere. She threatened to sue him on multiple occasions. This got me thinking about the legal aspects of this interesting way to earn an income.

The first search I ran was simple plain language search in WestlawNext to peruse the secondary sources that came up.

Plain Language Search: storage unit lien

The first secondary source that comes up is 93 C.J.S. Warehousemen and Safe Depositories § 107. This provides a good overview of a Warehousemen lien.  It’s a great starting off point.

After doing some research, it seems that most, if not every state,  has a statute pertaining to this type of lien.

Try this general search in your state to see what kind of cases, statutes or secondary sources might assist should a client walk through your door with this type of quandary.

self-storage mini-storage warehous! /10 lien

When I ran this in WestlawNext with Texas as my jurisdiction,  I immediately found 2 cases that were on point as well as a statute section on “Conduct of Sale” in the Chapter for Self-Service Storage Facility Liens. After clicking into that statute, you can click on the “Table of Contents” link to see the other statutes around this one.

This method should work for you in any jurisdiction to get a good footing on this topic.

I’m a fan of the Westlaw Welcome page.  It’s a great place to find hot topic lawsuits. Click on the Westlaw logo in the upper left corner of the screen.  At the Welcome page you will find interesting recent audio transcripts as well as new trial court documents including  the derivative suit by investors against Rupert Murdoch for the hacking scandal (2011 WL 2790646) and the complaint in a lawsuit against Jersey Shore’s “The Situation” brought by a former manager (2011 WL 2661094).  I also read the Simon Fuller pleadings:

Simon Fuller, creator of American Idol, has filed suit against Fox Broadcasting Company and FremantleMedia North America (including other Doe defendants). In the complaint (2011 WL 2870835), filed July 20, 2011 in California state court, Fuller alleges that Simon Cowell created X Factor, “a singing competition television program which was strikingly similar to Idol. In October 2004, X Factor premiered on British television, which constituted an infringement of Fuller’s intellectual property rights in the Idol franchise.” Fuller and his production companies then filed suit against Cowell and his production company. According to Fuller’s complaint, Fox “feared that the dispute between Fuller and Cowell would hurt both shows and would undermine the large profits Fox would realize from American Idol. Accordingly, in order to protect its investment in both American Idol and X Factor, Fox encouraged Fuller and Cowell to a settle their disputes amicably.”

Fuller further alleges that Fox, in order to induce a settlement between Fuller and Cowell (and their respective companies) “promised, among other things, to give Fuller an executive producer credit on the X Factor show and to pay Fuller an executive producer fee ‘commensurate with his duties and stature in the entertainment industry.’” Fuller and Cowell did indeed settle their lawsuit. Fuller alleges that he settled his suit in reliance on the promises made by Fox and Fremantle. According to the complaint, in the settlement the parties agreed that Cowell would remain a judge on American Idol for at least five more seasons and X Factor would not air in the United States until 2011. Fuller is now suing for breach of contract, breach of implied covenant of good faith and fair dealing, promissory estoppel and declaratory relief.

If you are the kind of person who prefers browsing to searching and  you like to regularly keep up on the most recent case opinions for your jurisdiction WestlawNext makes this very easy to do.

Say you want to see the most recent cases from the California Supreme Court. From the home page in WestlawNext, click on the State Materials tab, choose your state (in this case California) then choose your court (in this case the California Supreme Court). Once you click on the link it brings you to a page where it is already listing the 10 most recent decisions from that court, without having to run a search at all.

This also works really well for News on WestlawNext. For instance, if you are a New York practitioner you might find New York News & Insight Summaries really helpful. You can run a search this, like anything else on WestlawNext, or you can simply access the page and see the 10 most recent documents. From the home page under All Content click on News and to the right under Tools & Resources you will see a link to New York News & Insight Summaries.

If you are still in the mood to browse and not search, but you want to see more than the 10 most recent, this is your solution. To the right of the Search button click on the “advanced” link. The only thing you need to do is click the Date drop-down menu under “Document Fields” and choose the selection that works best for you. Then you can be even lazier still, you do not need dashes or slashes or names of months. You can choose All Dates After for instance and then just type in 6 1 2011 and click OK and WestlawNext puts this in the right format for you. That is all you need, click Advanced Search and you will have your list.

Keep in mind WestlawNext defaults by sorting by relevance. If you want to see these results in order, at the top of your result list in the middle click the drop down next to “Sort by:” and choose date.

California recently followed in the footsteps of several other states (New York, Illinois, Rhode Island and North Carolina*) by passing a law requiring large out-of-state online retailers who receive referral sales from in-state residents to collect sales tax on sales to California residents. 

Here’s the basic scenario:

Let’s say that we have an online marketing company residing outside of California, which we’ll call “Ama-zing” (clever, right?), and this fellow we’ll call “Joe,” who operates a retailing website in California.  Through his website, Joe markets books that Ama-zing sells through its website.  When a customer on Joe’s website clicks on a link on Joe’s website for a book listed on Ama-zing’s site, Joe’s website links the customer to Ama-zing’s website with a particular URL that tells Ama-zing’s website that the customer was “sent over” from Joe’s website.  If the customer ends up buying that particular book Joe gets a percentage, perhaps fifteen percent, while if the customer buys a different book Joe gets a smaller cut of those profits.  This is called pay-per-action (PPA) advertising, because, in contrast to “banner” ads (where the originating website receives commission for each user who clicks through the banner), Joe only gets paid by Ama-zing if the customer ultimately buys something

Ordinarily, a nonresident company cannot be compelled to collect sales and use tax in a particular state unless it has a physical presence, i.e., a bricks-and-mortar location, in the state.  Quill Corp. v. North Dakota, 504 U.S. 298 (1992).  Quill is generally interpreted as applying to e-commerce vendors, although courts have not foreclosed the question of whether out-of-state internet vendors are distinguishable from the mail order vendors in Quill.  You can find a good article on state taxes on e-commerce on Westlaw at  ECOMM WGL ¶ 14.03.

California’s law attempts to push the limits imposed in Quill by defining “retailer engaged in business in this state” to include “any retailer entering into an agreement or agreements under which a person or persons in this state, for a commission or other consideration, directly or indirectly refer potential purchasers of tangible personal property to the retailer, whether by an Internet-based link or an Internet Web site, or otherwise.”  (The law is limited in scope to retailers who receive more than $10,000 from in-state affiliates and have more than $500,000 in yearly sales to in-state residents.)

So far, so good, right?  It’s common knowledge that California is hurting for money.  Why should internet-based merchants be exempt from the grasping, revenue-seeking hands of government? 

It’s perhaps not that simple.  First, it’s not clear that these taxes are particularly good at raising revenue.  Rhode Island’s General Treasurer, Frank T. Caprio, says the tax on affiliates has “hurt Rhode Island businesses and stifled their growth, as they’ve been shut out of some of the world’s largest marketplaces” and called for repeal of the Rhode Island statute.  And multimillionaire publisher Steve Forbes has sharply criticized the tax, calling California a “pickpocket state,” and arguing that damage to the state’s economy from the tax will far outweigh any revenue gains.  Further, raising revenue may only be part of the story.  Amazon complains that the impetus behind these taxes is driven by big-box retailers who are based outside the state but have a physical presence and are therefore already collecting sales tax. 

It’s likely other states will follow suit, especially if California’s tax stands up to challenge in the courts. And other large internet retailers like Overstock.com and Drugstore.com are potentially affected by these laws as well. I’d be surprised if this issue went away anytime soon.

The California law is too recent to have made its way into caselaw, but a similar New York statute withstood constitutional challenge fairly recently.  In 2010, a New York appeals court upheld the lower court’s ruling that a New York statutory provision similar to the recent California law did not on its face violate the Commerce Clause, but directed the lower court to reinstate for further discovery on whether the statute is unconstitutional as applied.  Amazon.com, LLC v. New York State Dept. of Taxation and Finance, 81 A.D.3d 183, 913 N.Y.S.2d 129 (1st Dep’t 2010). 

I found that case by running this query in NY-CS:

internet e-commerce web website web-page /p physical-presence affiliat! refer referr! /p (engaged /5 business) physical-presence (sales collect! /7 tax!) (11 docs)                                                   

*If you’d like to see more on this issue, you might start with equivalent statutes in New York, NY TAX § 1101(b)(8); North Carolina, NC Gen Stat § 105-164.8(b)(3); and Rhode Island (RI Gen Laws § 44-18-15(a)(2).)

Some consider the Americans with Disabilities Act (ADA) one of the most important pieces of anti-discrimination legislation enacted by Congress since the passage of the Civil Rights Act of 1964. In the late 1980s, the social and political climate was ripe for change when Congress recognized a need to protect individuals with disabilities from discrimination. On July 26, 1990, the ADA was enacted and signed into law by President George Bush. This month we celebrate the twenty first anniversary of the ADA. The preamble to the ADA clearly establishes its mandate: “An Act to establish a clear and comprehensive prohibition of discrimination on the basis of disability.” See PL 101-336

The ADA has several Titles that provide protection in several different areas that were of particular concern to Congress.

Title I of the ADA protects individuals with disabilities from discrimination in the employment context.

Title II of the ADA relates to public services and prohibits public entities that provide public services, from discriminating against disabled individuals on the basis of their disability in the provision of such public services.

Title III of the ADA prohibits discrimination in access to or use of public accommodations.

Title IV of the ADA relates to the Telecommunications Relay Services for Hearing-Impaired and Speech-Impaired Individuals

Title V of the ADA contains certain additional protections.

For a discussion of the various titles of the ADA, see PLIREF-DISLAW s 1:3

The signing of the ADA was a historic moment in the evolution of America’s disability policy. In enacting the ADA and the subsequent amendments, “Congress recognized that physical and mental disabilities in no way diminish a person’s right to fully participate in all aspects of society” and  enacted the ADA Amendments Act (ADAAA) in 2008 to restore the intent and protections of the Americans with Disabilities Act of 1990 which had been judicially narrowed over the years since its enactment in 1990. See PL 110-325

There are several great resources for researching Disability Law on Westlaw:

PLIREF-DISLAW: Disability Law Deskbook: The Americans with Disabilities Act in the Workplace

ADA-PUBACC : This database contains the text of “Public Accommodations Under The Americans With Disabilities Act” which gives a comprehensive review of ADA standards, litigation issues, and practical applications of the law.

ADAWORKPLACE: This database contains the complete text of Workplace Accommodations Under the ADA, and provides insight into the “reasonable accommodation” requirement, explaining when you must provide unpaid leave, keep jobs open or reassign workers as accommodations for those with disabilities.

CCGADA : Corporate Counsel’s Guide to Americans with Disabilities Act

ABA-DISMAN: The ADA and People With Mental Illness: A Resource Manual for Employers

ADAGUIDE  This database contains the complete text of the ADA Compliance Guide, as published by the Thompson Publishing Group Inc. The guide explains the meaning of disability, reasonable accommodation, undue hardship, readily achievable barrier removal, program accessibility and the law’s many other key terms in plain English. In addition, it highlights steps that should be taken to ensure ongoing compliance. ADA regulations, enforcement guidance and accessibility standards are included, as well as summaries of significant ADA decisions.

Trends (2006 – 12011):

Using the following search, we tracked ADA claims from 2005 forward: nos(445 446) & fld(200x)

year: number of filings

2005: 2208

2006: 2500

2007: 2489

2008: 3192

2009: 3606

2010: 4520

Earlier this month, the Sixth Circuit Court of Appeals panel struck down Michigan’s ban on the consideration of race and gender in college admissions, but not for reasons you might expect.   The decision was not based on the value of diversity in the classroom, the nature of discrimination, or even the disadvantages faced by minorities in education and the workplace.  Instead, the Court found the ban unconstitutional because of the way it was created – by a Michigan voter approved constitutional amendment.  Because the ban could only be lifted by another constitutional amendment, the Court found that it effectively eliminated (or severely restricted) the ability of minorities to make further objection through an administrative or legislative process.

The decision (2011 WL 2600665), Coalition to Defend Affirmative Action v. Regents of the University of Michigan, is significant because it places minorities on equal footing with the majority in an affirmative action debate in Michigan that has been closely watched for over a decade.  But there is another reason the decision is important: it signals a renewed willingness of courts – indeed, conservative leaning courts at the very highest levels – to reject as unconstitutional efforts by state electorates to limit minority participation by constitutional fiat.   

Referenda like Michigan’s date back to the 1960s when white majorities attempted to prevent African-Americans from passing anti-discrimination laws and ordinances.   In Hunter v. Erickson, 393 U.S. 385 (1969), the Supreme Court struck down an amendment to the Akron, Ohio city charter which required that all ordinances regulating real estate transactions “on the basis of race and religion” be approved by referendum.  Similarly, in Washington v. Seattle School District, 458 U.S. 457 (1982), the Supreme Court found invalid a Washington state ballot measure that effectively allowed for busing for any reason other than to promote racial integration.  In those cases, the Supreme Court found that the laws in question “placed special burdens on racial minorities within the governmental process, thereby making it more difficult for certain racial and religious minorities than for other members of the community to achieve legislation that is in their interest.”  

In Romer v. Evans, 517 U.S. 620 (1993), the Supreme Court struck down Colorado’s “Amendment 2″ which prohibited the state from passing or enforcing any law that would entitle gay and lesbians to “have or claim any minority status, quota preferences, protected status, or claim of discrimination.”  The Court found that the amendment withdrew from homosexuals, but not others, legal protection for injuries caused by discrimination and prevented reinstatement of protections.   While recognizing that the amendment could itself be repealed by the voters as some point in the future,  the Court concluded that it was too great a burden to impose on only one group (homosexuals), since no other group would have to amend the constitution or repeal a portion of it in order to create change.* 

Notwithstanding these Supreme Court precedents, voters continue to pass referenda directed at minority interests at an alarming rate.  Arizona, California, Nebraska, and Washington all have affirmative action bans similar to the one Michigan voters passed.  In the past decade, over twenty-five states including California, Hawaii, Alaska, Nevada, and Nebraska have all passed referenda limiting the marriage rights of same sex couples, although the California ban, Proposition 8, was recently found to be an unconstitutional on due process and equal protection grounds.  Minnesota voters will vote on an amendment to prevent same sex marriage next year.  

I suppose that for opponents of affirmative action and gay marriage, constitutional amendments serve to insure what they believe is a degree of democratic oversight — voters preventing “rouge” courts from imposing their own policy viewpoints on the will of the people.  But for affirmative action and gay marriage advocates, these amendments serve to confine minorities to a kind of perpetual second-class status leaving them with no realistic avenue to address future injuries caused by discrimination.  Without equal political access, the interests of minorities are necessarily compromised.  

A good example is, Vermont, New Hampshire, Maine, the District of Columbia, and now New York which have each passed statutes legalizing same-sex marriage, although Maine’s’ statute was overturned through referendum.   Had constitutions been altered in those states, elected officials would never have been allowed to debate the merits of same sex marriage bills let alone bring them to a vote.  Likewise, racial and ethnic focused referenda serve to silence those interested in preserving diversity in classrooms and in the workplace.  Consider what happened in Michigan:  

In 2003, the Supreme Court decided in Grutter v. Bollinger (539 U.S. 306) that while the University of Michigan could not set racial quotas for certain racial groups, it could still consider race and ethnicity as a “plus factor” when making individualized decisions.  Not satisfied with that result, a group mobilized to place on Michigan’s ballot a proposal to amend the Michigan Constitution “to prohibit all sex and race–based preferences in public education, public employment, and public contracting.”  Michigan voters eventually passed that proposal by a narrow margin in November of 2006, but (to point out the obvious) they did so with an overwhelmingly white electorate majority.  Further, an exit poll showed that 70% of non-white men and 82% of non-white women voted against the amendment.  Appellant briefing (Brief of Appellant, 2009 WL 1439511)

The next month, Michigan institutions were forced to alter long-standing affirmative action programs by eliminating any and all considerations for race. Appellants offered a record (Brief of Appellants, 2009 WL 1439511) showing that as a direct result of the amendment, minority populations in Michigan colleges and universities decreased significantly. Expert testimony (Appellate Brief, 2009 WL 1456909) indicated that it would be “impossible” to “achieve the same sort of racial or ethnic diversity” or “even enroll a critical mass of underrepresented minorities” without considering race.  Worse, because decision-makers could no longer consider race, gender, or ethnic based arguments, minorities were left without a voice altogether.   

Drawing from Hunter and Seattle, the Sixth Circuit’s decision in Regents has leveled the playing field in Michigan.  As the majority pointed out, while a Michigan citizen seeking to change a school policy on an issue unrelated to race might lobby the admission committee, petition the dean or a school board, or launch a campaign in the state legislature, those interested in effecting change to race-based policies were left with no alternative but to amend the Michigan Constitution, an enormous task requiring resources not typically available to minority groups.  According to the Court, this narrowing of reasonable alternatives, “removed the authority to institute racially-focused policies and … and lodged it at the most remote level of Michigan’s government, the state Constitution.”   The result: a violation of the right of minorities in Michigan to equal protection of the law through an impermissible “rigged” game designed “to reproduce its success indefinitely.”

The Michigan Attorney General has vowed to appeal  the decision and and commentators agree that the outcome is unclear.  A similar case seeking to overturn California’s ban is currently pending in the 9th Circuit (Case No. 11-15100).  It is likely that the issue will reach the Supreme Court.

In the meantime, the message from Supreme Court precedent and now from the Sixth Circuit is clear: when minorities are deprived equal access, via constitutional amendments, to governmental and political processes available to others, the Equal Protection Clause is violated.  

* Since Romer, however, other constitutional amendments effecting minority access have been upheld by lower courts. In Coalition for Economic Equity v. Wilson, 122 F.3d 692 (9th Cir. 1997), for example, the Ninth Circuit refused to apply a ‘political structure’ equal protection analysis because, it reasoned, “group (women and minorities) alleged to face special political burdens itself constituted a majority of the electorate.”  In Citizens for Equal Protection v. Bruning, 455 F.3d 859 (8th Cir. 2006), the Eighth Circuit refused to find a political access problem with Nebraska’s gay marriage ban because they ruled that homosexuals are not a suspect class and, under a rational basis standard, laws defining marriage between a man and a woman are “presumptively” valid.