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May 2008 - Posts
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The senate acted wisely in tabling the patent bill in April and should resist calls to take it back up. Most proposed changes would be terrible, decreasing American innovation, economic growth and employment, while undermining years of trade negotiations for predictable enforcement of intellectual property overseas.
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In attacks on the prosecutor in the Sean Bell case for not trying hard enough to win, media and "trial experts" have characterized his effort as incompetent. But blaming the acquittal of three police officers for killing Sean Bell outside Club Kalua in Queens, N.Y., on prosecutorial ineptness is misdirected. It ignores crucial considerations that no fair-minded prosecutor could avoid. A prosecutor's legal and ethical duty is not only to win, but to win while also serving the cause of justice.
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If price-fixing agreements made abroad produce a "substantial effect" in the United States, DOJ and injured private plaintiffs may invoke remedies under U.S. antitrust laws. OPEC makes such agreements. Enforcement of these laws against OPEC or its members is constrained chiefly by the Foreign Sovereign Immunities Act, the act of state doctrine, procedures for service of process and, for private plaintiffs, "standing." Congress could, and should, enact legislation to make OPEC subject to U.S. antitrust laws.
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On May 15, Lori Drew, a 49-year-old woman, was indicted by a Los Angeles federal grand jury for using a MySpace account to torment and harass a 13-year-old girl who, as a result, committed suicide. Drew was charged with violating the federal Computer Fraud and Abuse Act. The press reports almost universally questioned the propriety of using the CFAA as the basis for this prosecution. Yet, while this may be the first CFAA prosecution for cyberbullying, the statute neatly fits the facts of this crime.
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Helvering v. Davis, applied the general welfare clause to uphold the constitutionality of the Social Security Act. The result has been a feast of government programs and regulations that would have been unimaginable to the framers. Since Helvering, not once has the court invalidated an act of Congress under the general welfare clause. Yet the U.S. government has immersed itself in a range of matters, including farm subsidies?none of which is among Congress' enumerated powers.
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Congressional committees, distressed by recent high court rulings, recently held hearings on legislation that would overhaul the Clean Water Act. The bills delete "navigable" from the definitional coverage and extend Congress' jurisdiction. But we doubt these changes would make for good policy. Surely, regulators do not welcome the prospect of examining every isolated discharge. Also, asking the public to trust that regulators' ad hoc enforcement will not extend too far is neither predictable nor workable.
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Pre-emption threatens the vitality of state tort law and the historic co-existence of federal prescription drug safety standards and common law remedies for injuries arising from those drugs. The recent trend of pharmaceutical companies seeking immunity from state law tort liability and prevailing raises serious questions about federalism. Why should this industry deserve special treatment? Courts that grant dismissals ignore the force of the settled presumption against pre-emption that protects consumers.
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All 12 judges on the U.S. Court of Appeals for the Federal Circuit heard arguments last week in a case of enormous significance to the continued health and vitality of innovation in the United States. In an effort to mend an ailing patent-examination system, one that remains unfortunately overburdened and understaffed, the U.S. Patent and Trademark Office recommended a course of treatment whereby the PTO simply refuses to examine business-related patents.
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Businesses that make misleading environmental claims about the products or services they offer better watch out ? judgment day may be near. The Federal Trade Commission is revising its "Green Guides" for environmental marketing claims and courts have held that FTC guidelines should be given weight in determining whether a defendant's marketing claims are false or misleading. More ominously, several states have enacted laws that write part or all of the Green Guides into state law.
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Baze v. Rees. On the limited facts before the court, Chief Justice John G. Roberts Jr. took the view that delivery of the anesthetic is a relatively simple endeavor. But in other states, where courts have allowed full inquiry, it has become apparent that getting the first dose "right" is not a simple matter. It is scrutiny that some members of the Supreme Court fear — too much truth about how the death penalty operates.
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It is good news for thousands of innocent employees and shareholders across the country that the U.S. Department of Justice is increasingly offering deferred prosecution and nonprosecution agreements to resolve corporate criminal investigations, rather than the all-or-nothing choice between indictment and no charge at all. Yet this trend has lately provoked some to conclude that the federal government has gone soft on white-collar crime.
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It is easy to believe that John Yoo wrote his widely discredited "torture memos" because he holds radical views of presidential authority or because he has some unusual moral failing. The reality, however, may be far more ordinary and disturbing: He willfully followed the lead of White House officials who were eager to find a legal justification for torture.
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Attorneys experience addiction at higher rates than one might think. They are adept at the "game face" and can often hide the addiction well. Drug rehabs or in-patient hospitals are not always viable options for professionals who simply cannot check out of society and leave their practices and family for lengthy treatments. For them, a modified at-home treatment protocol is prescribed. There are special methods, using cutting-edge medications, to help deter drug cravings, and minimize withdrawal symptoms.
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