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Which Bathroom is Appropriate for Transgender Elementary Students?

The Supreme Judicial Court in Maine is deciding a case brought on behalf of a transgender female student named Nicole (she was born male) regarding which elementary school bathroom she was permitted to use. Originally, the school allowed her to use the girl’s bathroom but eventually redirected her to a staff bathroom after a male student’s guardian complained about the situation.

Nicole’s parents reached out to and filed a complaint with the Maine Human Rights Commission, which sided with the family and then initiated a legal suit against the Orono School District for denying Nicole the right to use the girls’ bathroom.  After the Court ruled that the school district was within its rights to restrict Nicole to the staff bathroom, the family appealed.  The conflict began in 2009, and Nicole’s family has since relocated to a more tolerant community in southern Maine.  While the resolution of the court case will not directly affect Nicole, it will likely have far-reaching effects on the lives of transgender students in the future.  Regardless of the outcome in the state Supreme Court case, either side is likely to appeal, meaning that the legal question may end up being presented to the U.S. Supreme Court one day.

Background information on Nicole’s journey may be found in The Boston Globe’s 2011 article here. [REG]

U.S.-Mexico Border States Must Report Bulk Rifle Sales

Earlier today, the U.S. Court of Appeals for the District of Columbia Circuit issued a decision upholding a new gun sale reporting rule.  In July 2011, the U.S. Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF) sent demand letters to gun dealers in border states (California, Arizona, New Mexico, and Texas), requiring that each dealer send a report to the ATF when it sells “two or more semi-automatic rifles capable of accepting a detachable magazine and with a caliber greater than .22 (including .223/5.56 caliber) to an unlicensed person.”  Sales occurring on or after August 14, 2011, are subject to the new rule.  The ATF has reported that thousands of U.S. firearms are illegally brought into Mexico each year, specifically citing that authorities in Mexico recovered over 68,000 U.S. guns between 2007 and 2011.

In response to the case brought by The National Shooting Sports Foundation, Inc., J&G Sales, Ltd., and Foothills Firearms, LLC, the Court found that the Gun Control Act of 1968 “unambiguously authorizes” the ATF’s new policy.  While the appellants argued that the ATF’s policy overstepped a congressional mandate against creating a national gun registry, the Court concluded that the ATF’s demand letter applied to a small percentage of gun dealers and an even smaller percentage of gun sales, stating: “In short, because ATF sent the demand letter to only seven percent of [dealers] nationwide and required information on only a small number of transactions, the July 2011 demand letter does not come close to creating a ‘national firearms registry.’”  The full text of the opinion is available here.

[REG]

 

Does Your Garden Violate Patent Law?

You may have heard about a company called Monsanto – for many years, environmentalists have been trying to draw attention to the company’s genetically modified crops in an effort to steer Americans away from foods that they consider to be harmful.

Monsanto is making new headlines this week, as the U.S. Supreme Court issued a ruling in favor of the GMO giant in a case against an Indiana farmer who grew and sold soybeans that the company had invented through genetic modification.  The soybeans are resistant to a weed killer that Monsanto also produces, making them an easy and profitable crop for farmers.  Typically, farmers purchase such soybeans directly from Monsanto at prices well above average.  Instead of propagating their own seeds from that initial crop, a Monsanto policy requires farmers to purchase new seeds every year.  In fact, Monsanto requires that purchasers sign a contract agreeing not to save seeds from one year’s crops for planting in the next year.

In this case, however, the Indiana farmer purchased the soybeans off of a grain elevator – the beans were intended for such uses as animal feed and food processing – for prices well below Monsanto’s rate.  The farmer planted the soybeans, saved the resultant seeds, replanted them the following season, and continued to repeat this process for eight years.  In his defense, the farmer primarily asserted that he did not violate the patent because of the doctrine of “patent exhaustion,” allowing him to do what he wanted with the seeds he legally purchased.

In an opinion by Justice Kagan, the Court unanimously rejected the farmer’s argument and held that even the grain elevator soybeans were covered by Monsanto’s patent and that he was required to purchase new seeds each year.  “The exhaustion doctrine is limited to the ‘particular item’ sold to avoid just such a mismatch between invention and reward.”  In other words, while the farmer could use the purchased seeds for various direct purposes (such as resale or consumption), he was not permitted to grow new seeds from the original seeds, thus circumventing the patent.  While Justice Kagan specified that the ruling is narrow ("Our holding today is limited--addressing the situation before us, rather than every one involving a self-replicating product"), many in the biotech industries read this week's case as laying the groundwork for strong patent control in the future.

The full text of the opinion is available on the Supreme Court’s website here. [REG]

Sandra Day O’Connor: Regretful?

Former Supreme Court Justice Sandra Day O’Connor recently made headlines when she expressed doubt over the Supreme Court’s handling of Bush v. Gore, the case that prevented a recount of Florida votes in the 2000 election.  While O’Connor did not indicate that she should have changed her vote, she suggested that perhaps the Court should not have taken the case at all.  If the Court had not heard the case, the decision of the Florida Supreme Court would have stood, resulting in a recount of Florida’s ballots.  O’Connor now reflects that "[i]t turned out the election authorities in Florida hadn't done a real good job there and kind of messed it up. And probably the Supreme Court added to the problem at the end of the day."  Ultimately, the former Justice now believes that taking on the case and intervening in the political dispute gave the Court a “less-than-perfect reputation.” [REG]

Third Annual USD School of Law Patent Law Conference: The Future of Patent Law Remedies

When: Friday, January 18th
Where: Joan B. Kroc Institute for Peace & Justice
Cost: Free for professors and students

This Friday the University of San Diego will host "The Future of Patent Law Remedies" which will address landmark changes in patent law remedies taking place at the Supreme Court, Federal Circuit, and globally.

Click here for the full schedule of Friday's events

Register online through the San Diego Intellectual Property Association

[MF]

The Supreme Court Will Hear Gay Marriage Cases

The U.S. Supreme Court has spoken: on Friday, it announced that it will hear oral arguments in two cases dealing with same-sex marriage.

Hollingsworth v. Perry is the case involving California’s Prop. 8, the Proposition that banned gay marriage in the state.  There are two questions presented here: 1) whether the Fourteenth Amendment’s Equal Protection clause prohibits the state from denying marriage to same-sex couples; and 2) whether the petitioners have standing.  Although many expect the Court to decide the first question, it is entirely possible that the Court will opt to decide the case simply on the second question, thus avoiding the politics of the gay marriage debate.

In the second case, United States v. Windsor, there are three issues at hand: 1) whether Section 3 of the Defense of Marriage Act (DOMA) “violates the Fifth Amendment’s guarantee of equal protection of the laws as applied to persons of the same sex who are legally married under the laws of their State”; 2) whether the Supreme Court has jurisdiction to decide the case in light of the Executive Branch’s agreement with the lower court that DOMA (Section 3) is unconstitutional; and 3) whether the Bipartisan Legal Advisory Group of the U.S. House of Representatives has standing.  As in Hollingsworth, it is possible that the Court will attempt to avoid the gay marriage question specifically by deciding the case based on one of the other issues.

The Court will hear oral arguments in March 2013 and plans to issue its ruling in June 2013. [REG]

Are Human Genes Patentable?

Last week, the U.S. Supreme Court granted a writ of certiorari for Association for Molecular Pathology v. Myriad Genetics, a case addressing the question of "whether human genes are patentable."  In August of this year, the U.S. Court of Appeals for the Federal Circuit ruled that the genes in question were patentable, because the defendant's method of extracting the genes changed their molecular structure (but not their genetic codes).  Under Supreme Court precedent, "laws of nature, natural phenomena, and abstract ideas" are not patentable (Diamond v. Diehr, 450 U.S. 175, 185).  However, the "application" of a law of nature may be patentable - the patent proposed "must limit its reach to a particular, inventive application of the law" (Mayo Collaborative Services v. Prometheus Laboratories, Inc., 132 S. Ct. 1289 (2012)).

The patents at issue in this case involve genes associated with breast and ovarian cancers.  The plaintiff and its supporters argue that allowing patents on these genes restricts potentially life-saving research and ultimately harms women.  On the other side, supporters of the patents argue that denying patents may have negative effects on investments in technology.  For more information and to keep up-to-date on this and other Supreme Court developments, check out the links under U.S. S. Ct on the right side of this page. [REG]

No Redress for Torture in the Seventh Circuit

On November 7, the U.S. Court of Appeals for the Seventh Circuit reversed a 2011 decision allowing two Americans to recover damages from former Secretary of Defense Donald Rumsfeld for torture they endured at the hands of the American military in Iraq.  In Vance v. Rumsfeld , the court held that “a common-law right of action for damages should not be created” and that in any case Rumsfeld and other “remote superiors” were entitled to immunity for such conduct.

The court’s decision is in line with recent decisions out of the Fourth Circuit and the District of Columbia Circuit, although the ruling is said to go further (see a New York Times editorial here).  Importantly, the decision also marks a departure from the 41-year-old Supreme Court precedent in Bivens v. Six Unknown Federal Narcotics Agents, 403 U.S. 388 (1971).  In Bivens, the Court held that when federal agents inflict harm in violation of the Fourth Amendment, individuals suffering such harm may recover damages.

The dissent in Vance contended that the ruling confers “absolute civil immunity to the U.S. military for violations of civilian citizens’ constitutional rights” and “leave[s] citizens legally defenseless to serious abuse or worse by their own government.”  [REG]

Election 2012: State Results

With the election now over, the real work is just beginning in many states.  Two of the most talked-about state election results?  Marijuana and same-sex marriage.

In both Washington and Colorado, residents voted to legalize marijuana: adults over the age of 21 may legally possess small amounts of marijuana (under one ounce).  Importantly, possession is not limited to state residents – visitors to the state will also be afforded protection under the law, which has led many to fear a surge in marijuana-related  tourism.  However, those fears may be premature, as the drug is still considered illegal under federal law; although the states will be preparing for the new laws, they are also proceeding cautiously amid rumors that the U.S. Department of Justice may take the matter to court.

Marriage equality was also on the ballot, as voters in Maine, Maryland, and Washington passed laws allowing same-sex couples to marry – and Minnesota voters rejected a ban on same-sex marriage.  Meanwhile, same-sex marriage proponents in California await word from the U.S. Supreme Court, which is expected to decide later this month whether to hear the case challenging Prop. 8 (the 2008 Proposition that banned gay marriage).  Although California courts have declared Prop. 8 unconstitutional, a stay is in place preventing couples from marrying pending continued litigation.  If the Supreme Court chooses not to hear the case, California is expected to start issuing marriage certificates early next year. [REG]

Is Voting-by-Smartphone Around the Corner?

With much of the east coast devastated by Hurricane Sandy, many communities are worried about voter accessibility.  In response to this concern, Governor Chris Christie has opened electronic voting to displaced New Jersyans.  At this point, electronic voting is limited to e-mail and fax: interested citizens may e-mail or fax their clerk a mail-in ballot application, the clerk will then send an electronic ballot, and the ballot may then be returned via e-mail or fax.

This development may very well just be the first step in nationwide electronic voting.  As our society becomes increasingly comfortable with and dependent on technology, most areas of government are already going electronic to some extent.  While you may not be able to vote by smartphone for tomorrow’s election, it may not be too many years away.

For more information on New Jersey’s e-mail and fax voting, visit Gov. Christie’s site here.  Meanwhile, remember to go to the polls tomorrow and MAKE YOUR VOTE COUNT!  (If you’re registered in San Diego County, you can check your polling location through smartvoter.org here - enter your registered address on the top right of the screen). [REG]