May It Please The Court
Quote of the Day - Technology: No Place for Wimps!
A Crack In BlackBerry's Case?
Don't get too attached to your BlackBerry. You may remember that the BlackBerry manufacturer, Research in Motion, lost a patent infringement trial three years ago to NTP out of Arlington, Virginia. In a big way - they suffered $520 million verdict, reportedly the largest patent infringement verdict on record. RIM has tried a number of dodges to that verdict, including proceedings in Canada and an appeal here.
Then they tried to settle the matter with NTP, and almost had a deal inked last March for $450 million. Almost. It fell apart, and now NTP wants to enforce its award.
SCOTUS reports that Justice Roberts denied RIM's appeal to the U.S. Supreme Court, which could lead to banning sales of BlackBerry devices here in the US and stopping all emails to BlackBerrys.
As part of NTP's tactics, the company successfully forced a USPTO review of all eight of RIM's patents on the device, seven of which now stand invalidated. Federal Court Judge James R. Spencer in Richmond, where the proceedings now lie, says he's not going to delay any longer.
Podspider Grants MIPTC Its 5-Star Award
While I'm not quite sure what it means, Podspider granted MIPTC its 5-Star Award. According to Norman Forerder, the founder of the site, the award is given to the top ten percent of podcasts listed on its site. Norman reports: "the criteria for the award are "continuity and technical operativeness" as a guide for podcast listeners. Based on the 5-STAR-AWARD we will start in 2006 an international contest and award the best podcast from all 5-STAR-AWARD podcasts. We use the same procedure as is usual in Shareware directories. At the moment we have 20,000 Podcasts in the directory. 2,000 of them got this seal of approval as a kind of guide for listeners and as motivation to go one. We think that will help to promote the subject "Podcasting" to a higher level."
Maybe that just means MIPTC has done a lot of podcasts (at last count almost 1,000), but I appreciate the award. Podspider's 5-Star award icon will soon grace MIPTC's pages.
Why Lawyers Blog, And The Benefits We All Derive
You simply can't get advice this good for free ... or can you?
Over at the UCL Practitioner, Kimberly Kralowec takes a look at Proposition 64 and the application of the retroactive rule, or more accurately as she notes, the general practice absent specific legislative or voter provisions.
I'm looking forward to succeeding posts.
Arkansas and Oklahoma Battle It Out Again Over Water Contamination
Arkansas and Oklahoma have been at it for a long time, and this 20-year water discharge dispute has a brand new chapter: Arkansas has once again appealed to the U.S. Supreme Court, this time to resolve whether Oklahoma can enforce its water pollution standards on discharges from Arkansas, upstream in the Illinois River basin.
Back in 1970, when Earth Day was first established, all was well between the neighboring states. They signed the Arkansas River Basin Compact to regulate the manner of discharges to bodies of water. The main idea was to reduce the introduction of excessive nutrients, including nitrogen and phosphorus into the Arkansas River Basin, which fed lakes, streams and rivers in Oklahoma. All was well, at least initially.
The trouble began in 1985. A small city in Arkansas applied to the USEPA for a permit to discharge some 6.1 million gallons of effluent per day into a small stream in northern Arkansas. Over Oklahoma's objection, the USEPA ultimately granted the permit. Oklahoma sued. The case wandered through the appellate system until 1992, when the Supreme Court demurred to the USEPA decision, and did nothing.
Now, the two states are at it again. First, the City of Tulsa sued Tyson Foods, Inc., an Arkansas poultry producer. Then, Oklahoma filed a new suit mid-summer, and the OK attorney general has appealed to the Supreme Court again, claiming that poultry waste from Arkansas fouled Oklahoma lakes and streams. The suit alleges that the poultry waste is equivalent to the waste generated by almost 11 million people.
Life In The Big City
The New York Times reports about Opinionistas, in its article, Blogging the Firm. Perhaps the fascination with the blog is that it's truly Reality Blogging, a mixture of The Assistant and Survivor (link has obnoxious sound).
I'll stick with a career in the law, but that doesn't mean I don't like a little entertainment now and again.
Straightening Out The Effects Of Kelo v. New London
The House has passed the baton to the Senate. The property rights baton, that is. After Kelo v. New London, a lot of people were upset with the U.S. Supreme Court. But as one of my judge friends tells me, "we just interpret the laws, we don't make them." While that notion may be contrary to popular opinion about judges, it wasn't the situation in Kelo. The Supreme Court merely interpreted New London's eminent domain law that allowed private property to be taken by the government and "given" to other individuals for public benefit. Justice O'Connor, however, disagreed with that assessment, along with Justices Kennedy and Thomas.
For itself, Congress has stepped up to the plate and done something about it. Well, at this point, half of the Congress. It's up to the other half to determine what to do next. It would be more accurate to say both halves since the Senate has a competing, but similar bill. Presumably there will be a committee to resolve the differences, and then approve the revised bill, which would then go off to the President for his signature.
In its present form, the House bill strips state and local governments of federal funding if they use eminent domain to transfer privately owned land to commercial interests. It doesn't change the 5th Amendment of the Constitution (that would take three-fourths of the States). It does, however, make a point where it hurts the most - in government pocketbooks.
Congress isn't the only body getting into the act. There are apparently a number of state legislatures looking into it, too. As the author of the majority opinion Justice Stevens has come under enough flak that he spoke out about his decision, saying, he has "always allowed local policymakers wide latitude in determining how best to achieve legitimate public goals."
Clarity To New Bankruptcy Law Precludes Classifying Lawyers As Debt-relief Agencies
Bankruptcy lawyers can breathe a sigh of relief after a ruling by Chief Judge Lamar W. Davis of the U.S. Bankruptcy Court for the Southern District of Georgia. He ruled that lawyers are not "debt relief agencies" within the meaning of the new bankruptcy law. For awhile there, it was a dicey proposition.
The Bankruptcy Abuse Prevention and Consumer Abuse Protection Act of 2005 defined a debt-relief agency as "any person who provides any bankruptcy assistance to an assisted person in return for the payment of money or other valuable consideration, or who is a bankruptcy petition preparer." The kicker was that debt-relief agencies are subject to civil and criminal penalties for failure to make what amount to mandatory truth-in-advertising disclosures to people contemplating bankruptcy - including such limitations as not being able to advise consumers to incur more debt or pay attorneys.
Kind of tough to practice law under those restrictions, but Judge Davis has added some clarity to a muddy, mucked-up mess. Dubbed by some as the "Consumer Abuse and Bank Protection Act of 2005," the new law has been derided as " 'slipshod,' 'absurd,' and perhaps unconstitutional," according to this Andrews Publication article. Certainly there are others who favor the law.
They Forgot Prop 13 And Taxation Without Representation
In the City of California City in Kern County, a rather unusual situation exists. There are 4,100 voting residents, but some 50,000 parcels of property, presumably largely owned by non-residents. Add to that mix a financial shortfall in the City, and what do you get?
A tax on property.
Of course you're not going to see another type of tax that requires the individuals to pay in any other form such as income, sales or per capita. The City apparently needed to raise over $3,000,000 to fund services, so it proposed to its voters that they approve a $75.00 per parcel tax. All the City needed was a two-thirds majority for the tax to go into effect.
Needless to say, the nonresidents were not happy, and they sued.
They claimed that the tax violated Article III A of the California Constitution (Prop 13), that the tax was actually an ad valorem tax and not a special tax (the latter is allowed under the California Constitution), that the tax essentially amounted to a subsidy of local residents and that because 85 percent of those paying the tax could not vote on it because they were nonresident nonvoters. They also complained that the tax violated Propositions 62 (no imposition of a special tax) and 218 (limiting fees, assessments or charges masquerading as taxes, and requiring two-thirds voter approval).
The trial court found in favor of the nonresidents. The City appealed. The Appellate Court went on to address and dispose of each of the nonresidents' claims in turn, and overturned the trial court.
The most troubling aspect of the Appellate Court's opinion is its interpretation of the United States Constitution's requirement for one-person, one-vote. While residency is an acceptable restriction on the one-person, one-vote requirement, when the vast majority of those whose property rights are adversely affected by the tax are excluded from voting, common sense tells us that the equal protection requirements of the one-person, one-vote limitation have been violated. The Court pointed to an old opinion about nonresidents who weren't allowed to vote to determine whether they would be governed by additional city services, but that old opinion misses this mark by a country mile. Those non-voting, nonresidents received a benefit, they didn't lose one.
MIPTC's prediction? If this opinion is not overturned by the California Supreme Court (who by the way have finally adopted podcasting - in a manner of speaking), then we'll have another Proposition to straighten this situation out.