I finally got around to watching the movie Recount last weekend.  It wasn’t until after I finished watching that I realized I had chosen both the week of the just concluded primary in the state of Florida and the week of the 1 month anniversary of the very close vote in Iowa to watch.

The movie, for those who aren’t familiar, is a dramatization of the story of the Rresidential Election recount of 2000 in Florida, which began the day after the election and ended with the U.S. Supreme Court’s decision in Bush v. Gore, 531 U.S. 98.  The relevant details can be found in the opinion, and in the Florida Supreme Court opinion it overruled, Gore v. Harris, 772 So.2d 1243.

One of the film’s characters points to the oft-derided line in the decision*, which effectively rendered the entire decision non-precedential, and asked whether the court had ever written anything like it before.  I was able to find a few prior cases, and one subsequent case, though it appears the language is more likely to appear in concurrences or dissents.

Search:  consideration decision holding /15 limit! restrict! /15 present current “#before #us” /15 circumstance situation

Result: 24 Documents

Search: le(consideration decision holding /15 limit! restrict! /15 present current “#before #us” /15 circumstance situation)

Result: 9 Documents

The Florida Recount process forced every state to re-examine its election procedures, and a wave of reform legislation followed (for some discussion of this reform, see 73 FDMLR 1711).  Westlaw has a 50 State Survey of current ballot counting laws available at 0050 Surveys 8.   Also, the Reference Attorneys performed a WestCheck report on automatic recount statutes in November 2010. For your own (fairly) comprehensive list of statutes relating to recount procedures, try running pr(election) & sd(recount) in Statutes and Court Rules content. This finds 1832 relevant statutes, but a similar search in a state-specific database would yield a more manageable list.

If you want to learn more about the 2000 Presidential Recount, Westlaw still has the litigation materials in a special database: the database identifier is Preslit-Doc, and it includes numerous petitions and briefs filed by the parties, as well as court orders and oral argument transcripts.  I recommend a reading of the Suprme Court transcript, both for the quality of the arguments and for Joseph Klock’s mildly infamous inability to tell the justices apart.**

*“Our consideration is limited to the present circumstances, for the problem of equal protection in election processes generally presents many complexities.”  531 U.S. at 109.

**For more on this Mr Klock’s footnote in history, as well as a sense of how the litigation was viewed as it was going on, try the following search in allnews: joseph /3 klock /p justice /3 brennan souter.

As Jill V. mentioned the other day, Hostess, makers of Ding-Dongs, Ho-Hos, and assorted other guilty pleasures, filed for bankruptcy recently.  The case is pending in the Bankruptcy Court for the Southern District of New York, under Docket numbers 7:12-bk-22051 through 22056. Hostess previously declared bankruptcy in 2004, in the Western District of Missouri.  The Docket number for that case was 4:04-bk-45814.

Brief History of the Twinkie Defense

But even that prior bankruptcy wasn’t the first time Hostess made front page legal news.  That distinction goes to the so-called Twinkie Defense.  This is the mildly derogatory term applied to former San Francisco Supervisor Dan White’s defense when tried for the double murder of Mayor George Moscone and Supervisor Harvey Milk (some of the essential facts of the case can be found at 117 Cal. App. 3d 270).   Contrary to popular memory, Mr. White did not argue that eating a Twinkie had caused him to commit murder; he actually argued that he suffered from severe depression, which prevented him forming the requisite mens rea for homicide; his consumption of junk food was introduced merely as a symptom.  See footnote 204 in 36 USFLR 261.

The Twinkie Defense had a direct impact on California law when the legislature chose to amend Cal. Penal Code § 28 to abolish the Diminished Capacity defense and replace it with the slightly different ‘Diminished actuality’ defense.  The literal impact of this change can be found in the annotations to the current Penal Code § 28.  While Westlaw doesn’t have legislative history from California for 1982, a search for, diminished /3 capacity /p diminished /3 actual!, in the JLR database reveals 17 articles, which do a pretty good job discussing the motivation behind the change.

The Twinkie Defense had a brief return to the spotlight in 2006, when Justice Scalia mentioned it at oral argument in the case of U.S. v. Gonzalez-Lopez, ostensibly as an example of the kind of innovative thinking a good defense lawyer can do.  Less often mentioned was Scalia’s next sentence, “I would not consider the Twinkie defense an invention of a competent lawyer.” The transcript is available at 2006 WL 1134467.

For a sense of what people thought of the Twinkie Defense at the time, you can run the search, twinkie /1 defense & da(bef 1/1/1984) in ALLNEWS (11 results).  For more on Hostess’s ongoing financial troubles, try, hostess /s bankruptcy & da(aft 1/1/2004) in the same place.  And while I wish it had been me, credit for the first Bankruptcy/Twinkie defense connection must go the Editorial Board at the Hartford Courant, as revealed by simply combining the last two searches into HOSTESS /S BANKRUPTCY & TWINKIE /3 DEFENSE.

Arizona Congresswoman Gabrielle Giffords, who was seriously wounded in a shooting on January 8, 20011 at a constituent event in Tuscon, announced yesterday that she was resigning her seat in Congress to focus more fully on her recovery.

Arizona Rep. Gabrielle Giffords, who became a symbol of Americans’ hope and resilience as she tenaciously recovered from a gunshot wound to the head over the past year, announced Sunday that she is resigning from Congress this week.

. . . .

“I have more work to do on my recovery,” the Democratic congresswoman says in the video. “I’m getting better. Every day my spirit is high,” she says, speaking directly, deliberately and somewhat haltingly. “I will return, and we will work together for Arizona.”

2012 WLNR 1486923

As Rep. Giffords departs Congress, you can check out her legislative legacy on Westlaw using the following resources:

Floor speeches she made are available in the Congressional Record (Database ID: CR)

Search:  SP(Giffords) (189 docs)

The bill tracking for legislation she authored or sponsored during her time in Congress can be found in the Historical Bill Tracking database (billtrk-old).

Search:  au(giffords) & ci(federal) (60 docs)

Examples of her testimony before various committees in Congress can be found in the USTESTIMONY database.

Search: sp(giffords) (24 docs)

It’s a big day in the copyright world.  Golan v. Holder was decided today by the Supreme Court.  See 2012 WL 125436.  Supreme Court oral arguments are at 2011 WL 4593952.  Find the “Petitions, Briefs, and Filings” links on either document for related court documents.

SOPA RESISTANCE DAY

In addition, today is SOPA resistance day.  Several internet companies are protesting two anti-piracy bills by going dark:

The two bills are the “Stop Online Piracy Act” (HR 3261) and the “PROTECT IP Act” (S. 968) .  Westlaw/WestlawNext find citations to the bill documents are 2011 Cong US S 968 and 2011 Cong US HR 3261.

The President’s recent statement in response to “We the People Petitions on SOPA and Online Piracy” might generally summarize the opposition to these bills:

While we believe that online piracy by foreign websites is a serious problem that requires a serious legislative response, we will not support legislation that reduces freedom of expression, increases cybersecurity risk, or undermines the dynamic, innovative global Internet.

2012 wL 114502

Despite waning support for these bills, Nate Anderson of Ars Technica reported that November’s Congressional hearings were stacked ‘hugely’ in favor of those advocating adoption. The transcripts are interesting to read.  On Westlaw, try a query for, SOPA,  in the USPOLTRANS database.

Reports came out on Wednesday morning that Hostess had filed for bankruptcy in the Southern District of New York. So on my lunch break (eating a salad, sans Twinkie…maybe I’m part of the problem?), I tracked down the docket on WestlawNext. Here are directions for browsing to the Hostess bankruptcy on WestlawNext:

First,  click on the Dockets link from the Browse All tab on the Home page of WestlawNext.

Next,  click on the link to Federal Bankruptcy Courts.

Then, under the State category, I clicked on New York… after that, the link to the Southern District.

That brings up a nice template for us to use. I simply enter “Hostess” in the “Participant Name” box, then use the “Filing Date” box to choose “last 30 days.”

That brings up the dockets related to the Hostess bankruptcy.

Images of the complaints are already available from the docket, along with several other filings.

In Fox v. FCC,  the Second Circuit held that the FCC’s indecency policy is impermissibly vague and violates free speech.  The citation to the Second Circuit’s opinion is 613 F.3d 317. The Supreme Court granted Certiorari in this case and heard oral arguments Tuesday, January 10th. The citation to the petition for writ of cert is 2011 WL 1540430.

The Second Circuit addressed the dangers of the FCC’s current three-factor “patently offensive” test. The Court pointed out inconsistencies in how this test has been applied and also a lack of discussion as to how each factor is applied, thus resulting in a failure to provide notice to broadcasters as to how the Commission will apply the factors in the future.

The Court also noted that the same vagueness issues exist with the Commission’s presumption that words like “f*ck” and “sh*t” are prohibited. Under the current policy, all variations of the two terms are prohibited unless they fall under the “bona fide news” exception or the “artistic necessity” exception. The Court stated that the Commission has failed to explain the “bona fide news” exception except to concede that it is not absolute. The “artistic necessity” exception permits the use of “fleeting expletives” if they are “demonstrably essential to the nature of an artistic or educational work or essential to informing viewers on a matter of public importance.” You can read more about the “artistic necessity” exception in the Commission’s omnibus order available at 2006 WL 656783.

The Second Circuit explained that while the currently policy provides the most flexibility to the Commission, that flexibility is dangerous, stating:

“The FCC’s current indecency policy undoubtedly gives the FCC more flexibility, but this flexibility comes at a price. The “artistic necessity” and “ bona fide news” exceptions allow the FCC to decide, in each case, whether the First Amendment is implicated. The policy may maximize the amount of speech that the FCC can prohibit, but it results in a standard that even the FCC cannot articulate or apply consistently”. 613 F.3d 317, 332.

The Second Circuit also expressed concern over the chilling effect this vague policy has on speech, citing examples of  broadcasters deciding not to air particular programming for fear of being fined or losing their license. The court warned:

“If the FCC’s policy is allowed to remain in place, there will undoubtedly be countless other situations where broadcasters will exercise their editorial judgment and decline to pursue contentious people or subjects, or will eschew live programming altogether, in order to avoid the FCC’s fines. This chill reaches speech at the heart of the First Amendment.” 613 F.3d 317, 334.

RESEARCH TRAIL

If you are interested in seeing how the Commission has applied these tests you can search in FCC materials.

On Westlaw go to the database Federal Communications – FCC Record (FCOM-FCC)

On WestlawNext, type FCC into the Search bar and when it says “looking for this?” click on Federal Communications Commission (FCC).

Sample Search: (“patently offensive” /10 three-factor) (presum! /5 profan! indecen!)

Transcipts: The Supreme Court oral argument transcripts are available at this citation: 2012 WL 72459

If you would like to be alerted when the Supreme Court’s decision comes out, set up a WestClip with this as your query: ti(Fed! & Fox) in the SCT database. The steps for setting up a WestClip are available here: Westlaw Quick Reference Guide: Using Westclip (pdf).

The Supreme Court is back to business Monday, January 9th. The court will hear 3 cases Perry v. Perez/Perry v. Davis, Kappos v. Hyatt and Sacket v. E.P.A. This post’s research covers Kappos.  Perry and Sacket posts are forthcoming.

Kappos v. Hyatt: Overview

In Hyatt v. Kappos, the Federal Circuit held that when a patent applicant files suit under 35 U.S.C. § 145, the only limitation on the admissibility of evidence for issues raised before the Patent Office are the Federal Rules of Evidence and the Federal Rules of Civil Procedure. The citation to the Federal Circuit opinion is 625 F.3d 1320.

In this case the Director of the PTO argued that an applicant in a § 145 action can only present new evidence to the District Court if the evidence could not reasonably have been provided to the Patent Office. The Federal Circuit rejected this argument citing Butterworth v. Hoe (112 U.S. 50), “It is not a technical appeal from the patent-office, like that authorized in section 4911, confined to the case as made in the record of that office, but is prepared and heard upon all competent evidence adduced, and upon the whole merits.”

The Director also argued that allowing applicants to introduce new evidence would conflict with the doctrine that parties may not raise issues in the district court that were not raised before the Patent Office. The Federal Circuit rejected this argument as well and clarified that an applicant cannot raise new issues but can provide new evidence as to issues raised before the Patent Office.

The Federal Circuit identified two different standards of review for the District Court in a §145 action. The First applies in situations where the applicant does not introduce new evidence. In this instance, the court reviews the case on the administrative record and must apply the APA’s substantial evidence standard to the Patent Office findings of fact. Second, when the applicant does introduce new evidence, the district court is not limited to the administrative record, instead the court must make de novo findings of fact that relate to the new evidence.

RESEARCH TRAIL

Ronald Mann’s overview at SCOTUSblog notes…

The arguments of the parties are squarely drawn.  Although the parties argue at length about the state of the law at the time when the various predecessors to Section 145 were adopted and amended (the statute dates to 1839), the central debate really pits the language of the statute against considerations of institutional design.

We nevertheless spent some time finding the old statutes. The Federal Circuit opinion looks at the legislative history of 35 U.S.C.A. § 145 and discusses § 4915 of the Revised Statutes at length.  Section 4915 and other 145 predecessors can be found in the US-STATLRG database.   For example, we found 44 Stat. 1335 by searching for,  patent and da(1927).  Searching clues can be found under the Historical and Statutory Notes at 35 USCA 145.

The Supreme Court has granted certiorari and hears oral arguments on Monday, January 9th. The Petition for Writ of Cert can be found at 2011 WL 1336431.

To read the briefs filed in this case run this search in the SCT-BRIEF database: ti(kappos & hyatt) or, find the link for filings links at the case from the Federal Circuit opinion.

The transcript will be available soon after the oral argument, to access that you can go to the Transcripts of the U.S. Supreme Court Oral Arguments database (SCT-ORALARG) and enter Kappos in one party name box and Hyatt in the other party name box. We’ll also update this post when the citation becomes available. [Update: Oral Arguments Transcript is here: 2012 WL 38640]

If you would like to be alerted when the Supreme Court’s decision comes out, set up a WestClip with this as your query: ti(kappos & hyatt) in the SCT database. The steps for setting up a WestClip are available here: Westlaw Quick Reference Guide: Using Westclip (pdf).

Dennis Crouch recently noted that more U.S. utility patents were issued in 2011 than in any other year. We emulated his  research by using the following queries:

On Thomson Innovation: PY=([year]) NOT KI=(S?) NOT PN=(usre*);

On Westlaw: da([year]) and u.s. in US-UTIL

The Thomson Innovation search eliminates design patents by excluding Kind Codes, “S.”  It eliminates  Reissues by excluding publication numbers beginning with, “USRE.”   Westlaw has separate collections for Design and Utility patents (US-Design, US-Util).  Our results:

* We used Thomson Innovation’s US Class filter to acquire these results.

Thomson Innovation displays a maximum of 60K patents.  The Patent Office hasn’t issued fewer than 60K patents in a single year for quite some time. In 1950, there were 42,851 granted utility patents (Top US class was 346/033R or “Combined with external recording operating means”).  In 1900, there were 28,657 granted utility patents. (Top U.S. class was 431/110 or “Supported above upwardly facing fuel discharger”).  For this post, we did not do the work of breaking the  search into several parts in order to generate fewer than 60K results.  So, analysis for Top US class might vary with a more nuanced search.

What would have been a major legislative accomplishment by the incumbent administration is now dead, thanks to the Supreme Court. Some observers are completely shocked, others seem to have sensed it was coming.  Still, it’s a major setback in the attempt to become the last major world economy to enact this type of regulation on the national level.

I’m referring, of course, to the Supreme Court of Canada’s December 22nd advisory opinion, Reference re Securities Act, which ruled that the Canadian Government’s proposal to create a national securities Regulator would be  unconstitutional if enacted.  The opinion can be found on Westlaw at 2011 SCC 66 (note that this is a non-unique cite used for both the English and French language opinions).  Canada is the only industrialized country that does not regulate its securities trade at the national level, and it seems for now, that it’s not going to start in the near future.

For some initial reaction to (and analysis of) the decision, I recommend searching SECURITIES & DA(AFT 12/21/2011 & BEF 12/24/2011) in the GlobeMail database.  This relatively simple search retrieves 21 articles from one of Canada’s leading news publications, nearly all of which are directly on point.  When searching for securities and finance related materials, searching the plural “Securities” can lead to far more accurate results than searching for Security or Securit!.

While the Government’s proposed plan is now off the table, the advocates of a national securities regulator are not finished, especially when the Supreme Court’s opinion is seen as having left the door open for future efforts.  For some ideas about where this debate will go next, I went to the TP-Canada database and did a search for securities /s regulat! /s national federal.  This yielded 195 hits, with 35 coming from the past 3 years.  Those 35 should give you a good sense of the roads-not-taken-but-not-yet-Constitutionally-barred.

Research References

Check out the Canadian Securities Administrators Website:

The 10 provinces and 3 territories in Canada are responsible for securities regulations. Securities regulators from each province and territory have teamed up to form the Canadian Securities Administrators, or CSA for short. The CSA is primarily responsible for developing a harmonized approach to securities regulation across the country.

Canada’s System for Electronic Document Analysis and Retrieval (SEDAR) can be found on Business Law Research’s Securities-Canada tab along with a variety of Canadia-specific securities secondary sources:

Much to dismay of many single women here in Minnesota, Twins baseball player, and “Hometown Hero” Joe Mauer, recently announced his engagement to a former high school classmate. His happy news came just a little over a month after the demise of fellow Minnesota-born athlete Kris Humphries’ marriage to Kim Kardashian. News reports indicated that Kardashian declared an intention to keep her reported $2 million engagement ring. A pre-nuptial agreement also may play into the balance, with various news reports indicating that the agreement allows Kardashian to purchase the wedding ring in the event of a divorce.

So what is the law on this classic law-school scenario? On WestlawNext, try a plain language search using West Search in all state cases:

ownership of engagement ring

We get some promising looking results in the case law, but Related Documents includes an ALR article titled,  Rights in respect of engagement and courtship presents when marriage does not ensue, 44 A.L.R.5th 1 .
So it looks like we have a good start for the broken engagement situation. But what about a divorce? What happens to the ring when a marriage happens, but fails? For that, simply try,

Ownership of engagement ring after divorce

I click on the cases link on the left to see what we get, and quickly I see language about whether engagement rings are considered marital or separate property. I see references to statutes and again on the right side of the screen, under Related Documents, I see a Yale Law Journal article:

When the marriage ceremony ends, the law declares that a woman has done her part with respect to the ring and can keep it forever.

Rebecca Tushnet, Rules of Engagement, 107 Yale L.J. 2583, 2603 (1998)