Hey, there--

Long time no see!

The Hypocritical Left and Right on the White Firefighter Reverse Discrimination Case

The Supreme Court has ruled 5-4 in favor of the white firefighters in New Haven, Conn., on the grounds that they "were unfairly denied promotions because of their race.

I predict hypocritical reaction from both left and right, split along the same lines as the majority and dissenting side in this case. The left will decry this, despite it being logically implied by their racialism. The right will support this, despite it flying in the face of their anti-judicial activism and pretend-federalism.

The libertarian centralists (see also Objectivists and Federalism; Bolick on Judicial Activism) will no doubt cheer this case ... even though it's a precarious 5-4, and the next likely Justice, Judge Sotomayor, voted the other way on this case.

[Cross-posted at StephanKinsella.com and LRC]

Higher Law

On a libertarian list, a fellow listmember disagreed with me about whether one should, if on the Supreme Court, refuse to enforce an unjust law. I had written,

BTW, I also have no problem with the Courts "striking down" any other actions of the other branches of the federal government--even "constitutional" ones. If I were on the Court I would probably refuse to enforce tax convictions, for example. But I would do so on moral, not constitutional, grounds.

His reply: "This is the problem. You would do the same goofy crap that that liberals do when they get on the bench -- "Certainty and stability of law be-damned! I'm going to finagle this until I get he results I want in every case!"

But I'm a libertarian. I would refuse to take part in murder. I reject the idea that "The legal system is in shambles because liberal assholes have been doing this crap for generations."

I reject this relativist thinking (equating libertarians and liberals). The problem is not "activist judges." The problem is socialist people.

So, I gave him this simple question: you are on the Supreme Court, and a case comes before you of someone challenging their incarceration (say, for life) for income tax evasion. Now you and I know that this could be legal, and it would also be constitutional.

Would you uphold his conviction, and help sentence this innocent victim to a life in prison? Or, would you refuse to do something immoral and criminal like this?

I think I would just refuse to vote to put someone in jail: and my reasoning might be something like,

"My fellow Justices--my countrymen: The income tax statute may be constitutional; but just as legislation can override the common law; just as the Constitution is a 'higher law' than mere legislation; so there is a higher law than the Constitution. We judges are human beings, not mere robots, nor mere functionaries blindly applying whatever positive law may be, no matter how egregious or unjust. A Justice of the Supreme Court is not merely a judge, but a Constitutional Officer on the same level as the Executive and Legislative branches; he is one of the last resorts of the citizen pleading for relief from potentially unjust laws of the state. Jurors can judge the law as well as the facts and refuse as fellow citizens to convict someone they believe is not a wrongdoer. Can a Justice do less? Can he uphold manifest injustice? Can he partake in murder and kidnapping? No. He cannot. I certainly cannot. Yes--I took an oath to the Constitution but I took this oath because of a deeper allegiance to justice itself. So if there is a conflict between justice and the Constitution--the Constitution be damned. I will not participate in murder, or crime against the innocent. I dissent. "

What would you do?-- "While I myself as legislator or voter would not favor this legislation, and while I regret the 16th Amendment was ratified, I have no choice but to vote to put Mr. Smith in jail. Ruining his life is a price worth paying so that I can stay on the bench and continue to do .... well, not justice, but continue to help enforce whatever positive law happens to be in place. For without positive law enforced by the state, where would we be?"

Morse v. Frederick

Morse v. Frederick. MSNBC report.

My view on this is fairly simple.

1. Apparently this was a public (state) high school. If so, the feds should have no right to interfere. So the outcome of the decision was actually correct--the S. Ct. should not overturn the local gov't's way of handling this.

2. If the state can ban drugs, I see no reason why it can't also ban advocacy of drugs. I mean they can conscript people, so why is it worse to tell them not to wave aroudn a flag. The problem is the massive power the state has. If it bans drugs and conscripts, why are we surprised it regulates advocacy.

3. If the 1st amendment does apply here (I think it does not), then I am not sure it prevents the high school's regulation. (It should, but I am not sure it does.)

4. There should be no laws against drugs, there should be no public high schools, and there should be no laws regulating speech.

5. If a private high school wants to expel a student who advocates use of drugs, they have that right,of course.

Irreparable Harm

outrageous -- CSIRO is entitled to an injunction ... because it's irreparably harmed ... because its patents might be challenged in court? "Having its patents challenged via the courts not only impugns CSIRO's reputation as a leading scientific research entity but forces it to divert millions of dollars away from research and into litigation costs."

Further discussion:

• Permanent Injunction Granted in Patent Case (EDTexweblog)
• 802.11a/g Patent Fight: IEEE Created a Patented Standard??? (Saschameinrath)
• CSIRO wins landmark legal battle (Sydney Morning Herald)
  

CSIRO v. Buffalo Technology, Inc., E.D. Tex. (6:06-CV-324), June 15, 2007

CSIRO is the principal scientific research organization of the Australian Federal Government. Established in 1926, CSIRO conducts scientific research and applies the efforts of that research to benefit the public at large. CSIRO is similar to the United States' National Science Foundation and National Institute of Health.

On January 23, 1996 CSIRO was granted U.S. Patent No. 5,487,069 ("the '069 patent") which is directed to addressing the "multipath" problem for indoor wireless networks (WLANs). CSIRO's intent from the beginning was to derive revenue from its invention through licensing the '069 patent. The patent is considered by CSIRO to be a "core" patent for the IEEE 802.11a and 802.11g standards.

CSIRO successfully sued Buffalo in the E.D. Tex. for infringing the '069 patent, and sough a permanent injunction. Buffalo countered that CSIRO was not entitled to an injunction since eBay, since it did not produce any products or otherwise compete in the relevant wireless market.

Judge Davis disagreed, stating that formal research institutions may avail themselves of injunctive relief when their patents are infringed.

Irreparable Harm to CSIRO

Relying on the TiVo, Paice and Visto cases, Buffalo argued that, since eBay, district courts have typically granted injunctive relief in favor of competitors but denied injunctive relief to non-competing licensors. The court rejected this argument:

The majority opinion in eBay rejected the conclusion that "a 'plaintiff's willingness to license its patents' and 'its lack of commercial activity in practicing the patents' would be sufficient to establish that the patent holder would not suffer irreparable harm if an injunction did not issue."

CSIRO has shown that its harm is not merely financial. While CSIRO does not compete with Buffalo for market share, CSIRO does compete internationally with other research groups--such as universities--for resources, ideas, and the best scientific minds to transform those ideas into realities. CSIRO's reputation is an important element in recruiting the top scientists in the world. Having its patents challenged via the courts not only impugns CSIRO's reputation as a leading scientific research entity but forces it to divert millions of dollars away from research and into litigation costs. Delays in funding result in lost research capabilities, lost pportunities to develop additional research capabilities, lost opportunities to accelerate existing projects or begin new projects. Once those opportunities have passed, they are often lost for good, as another entity takes advantage of the opportunity. Delays in research are likely to result in important knowledge not being developed at all or CSIRO being pushed out of valuable fields as other research groups achieve critical intellectual property positions. Thus, the harm of lost opportunities is irreparable. They cannot be regained with future money because the opportunity that was lost already belongs to someone else.

Adequacy of Remedies Available at Law:

In his concurrence, Justice Kennedy instructed courts to be cognizant of the nature of the patent being enforced and the economic function of the patent holder when applying the equitable factors. eBay, 126 S. Ct. at 1842 (Kennedy, J., concurring) ("When the patented invention is but a small component of the product the companies seek to produce and the threat of an injunction is employed simply for undue leverage in negotiations, legal damages may well be sufficient to compensate for the infringement and an injunction may not serve the public interest.") . . . The right to exclude becomes more urgent when the product is the invention.

This case is not the situation that concerned Justice Kennedy; Buffalo's infringing use of CSIRO's technology is not limited to a minor component of the technology. The '069 patent is the core technology embodied in the IEEE's 802.11a and 802.11g standards. Buffalo's products are designed to provide the wireless functionality of the IEEE's 802.11a and 802.11g standards. Since Buffalo's infringement relates to the essence of the technology and is not a "small component" of Buffalo's infringing products, monetary damages are less adequate in compensating CSIRO for Buffalo's future infringement.

Balance of Hardships

Finding the CSIRO suffered irreparable harm, the court found Buffalo's hardship was not sufficient to find in its favor: "The hardship to Buffalo of permanently enjoining its infringing conduct is limited to the injury ordinarily expected when an injunction is imposed. Mere hardship incurred in the process of ceasing operations is not sufficient."

The Public Interest

Research institutions, such as CSIRO, make substantial scientific advances. The work of research institutions is often at the forefront of scientific awareness. Although their work may not always have immediate applications, the work of research institutions has produced enormous benefits to society in the form of new products and processes. Because the work of research institutions such as CSIRO is often fundamental to scientific advancement, it merits strong patent protection. Furthermore, the public interest is advanced by encouraging investment by research organizations into future technologies and serves to promote the progress of science and the useful arts. Thus, the public interest factor favors CSIRO's motion for permanent injunction.