Charles R. Macedo is a partner at Amster, Rothstein & Ebenstein LLP, and the author of The Corporate Insider’s Guide to US Patent Practice, which provides a basic understanding of patent practice in the United States as it relates to both obtaining and enforcing patents. Macedo’s practice specializes in all facets of intellectual property law including patents, trademarks and copyrights.  In the article below he looks at “patent worthiness.”  Read his other OUPblog posts here.

Speed Dating is not the only issue that our nine Justices of the Supreme Court raised on November 9, 2009 to determine what types of processes should be entitled to “patent worthiness.” Justice Scalia wanted to know why, if the patent laws were intended to cover broad processes, weren’t there any patents filed in the 1800s relating to training horses.

At the time, as Justice Scalia rightly observed, the American economy was completely dependent on horses. In fact, during the late 19th Century commerce came to a standstill when approximately 99% of all horses in America contracted equine influenza. According to Greg Sabin’s February 13, 2009 article, “Nightmare on Wall Street: 4 Other Times Our Economy Tanked“, at the height of the pandemic “as many as 20,000 businesses failed, a third of all railroads went bankrupt, and unemployment spiked to almost 15 percent.”

Not surprisingly, as Justice Scalia suggested, there were many U.S. Patents issued in the late 1800s that taught different methods of training or breaking horses:

* U.S. Patent No. 247,296, to G.W. Blake, entitled “Harness” (patented September 20, 1881);
* U.S. Patent No. 381,745, to H. C. Woodnutt, entitled “Device for Assisting in Training Horses” (patented April 24, 1888);
* U.S. Patent No. 453,727, to H. Sample, entitled “Apparatus for Treating or Taming Horses” (patented June 9, 1891);
* U.S. Patent No. 478,513, to C.C. Kelly, entitled “Apparatus for Training Animals” (patented July 5, 1892); and
* U.S. Patent No. 545,228, to J.W. Green, entitled “Horse-Breaking Apparatus” (patented August 27, 1895).

While admittedly none of these patents claimed a method of training or breaking a horse, they all obtained patent protection for such methods by claiming the apparatus to do it.

There are various explanations of why these patents claimed apparatus instead of methods:

* In the 1800s, most patents were drafted in the form of apparatus or system claims, and not method claims, although the law allowed for method claims in the form of “arts.”
* It was much easier to detect infringement of an apparatus that was sold than to detect a method of performing acts. Thus, not surprisingly, one would be less likely to invest in method claims.
* Perhaps more importantly, the law was in flux as to what type of method claims were available. For example it was not until 1909, in Expanded Metal Co. v. Bradford, 214 U.S. 366 (1909), that the Supreme Court made clear that patent eligible method claims did not merely need to have chemical transformations, but could also include mechanical transformations.

Indeed, when the 1952 Patent Act was adopted, the law was drafted to define patent-eligible methods broadly. See 35 U.S.C. § 100(b). Thus, perhaps Justice Scalia would find it interesting to note that since the Act was enacted, many patents have issued which claim methods of training animals (including horses):

* U.S. Patent No. 3,099,248, to J.K. Giles et al., entitled “Methods of Training Horses” (patented July 30, 1963) (claiming “a method of breaking and training horses preparatory to racing”);
* U.S. Patent No. 5,566,645, to T.H. Cole, entitled “Animal Training Method and Apparatus” (patented October 22, 1996) (claiming “[a] method for training animals”);
* U.S. Patent No. 6,311,645, to J.S. Brown, entitled “Animal Training Method and Apparatus” (patented November 6, 2001) (claiming “[a] method of training an animal”);
* U.S. Patent No. 6,352,053, to D. Records et al., entitled “Apparatus and Method for Animal Testing and Training” (patented March 5, 2002) (claiming “[a] method permitting an observer to determine the bucking propensity of an animal such as a bull or horse”);
* U.S. Patent No. 6,568,940, to M. Mack, entitled “Equestrian Training Method” (patented May 27, 2003) (claiming “[a] method for equestrian training”);
* U.S. Patent No. 6,602,209, to D.H. Lambert et al., entitled “Method and Device for Analyzing Athletic Potential in Horses” (patented August 5, 2003) (claiming “[a] method for predicting potential performance in a selected racing or training animal”);
* U.S. Patent No. 7,107,939, to L.J. Lady, entitled “Animal Training Apparatus and Method” (patented September 19, 1996) (claiming “[a] method for training a four-legged animal”); and
* U.S. Patent No. 7,331,310, to K. Sersland et al., entitled “Domestic Animal Training Method” (patented Feb 19, 2008) (claiming “[a]n animal training method”).

Turning back the patent law to the uncertainty of the 1800s, when our economy was based on agrarian and early industrial technology, is not what our nation needs in this time of economic crisis.

The point is that any subject should be available for patent protection, whether it is Speed Dating, Horse Training, or Hedging Risk, so long it does not claim the subject in an abstract manner.

Charles R. Macedo is a partner at Amster, Rothstein & Ebenstein LLP, and the author of The Corporate Insider’s Guide to US Patent Practice, which provides a basic understanding of patent practice in the United States as it relates to both obtaining and enforcing patents. Macedo’s practice specializes in all facets of intellectual property law including patents, trademarks and copyrights.  In the article below he looks at speed dating in a whole new light.

On Monday, November 9, 2009, the nine Justices of the US Supreme Court heard oral argument in the case of Bilski v. Kappos. This case, involving what many think to be the dull and arcane subject of patent law, can have a profound effect on the US economy, including potentially allocating research funds and investments and limiting what information our society will learn through the use of patents.

In the US, a patent can be granted to the first and true inventor(s) of a novel (new) and non-obvious invention. A patent provides a limited right to exclude others for a limited period of time, in exchange for telling the world how to practice the claimed invention. In other words, if the inventor teaches the rest of society what he or she knows, our government gives him or her an exclusive window of time during which to commercialize that invention. The assumption of the patent law is that granting a patent will foster innovation in two significant ways: (1) by encouraging investment in exchange for the limited monopoly rights, and (2) by providing disclosure of what might otherwise be maintained in secret and/or forgotten.

The issue the Supreme Court is deciding in Bilski is what types of inventions are “patent worthy” (as Elaine in Seinfeld might have phrased it), and what types of inventions do not even get considered for a patent. This debate is so important that apparently it is rumored that more amicus curiae briefs (including a submission prepared by me) were submitted to the Supreme Court than any other patent case in US history.

In an effort to divine where to draw the line on patent eligibility, the Justices posed a variety of hypothetical inventions to test patent worthiness using a proposed rule from the Appellate Court, to see whether that Court got the right answer. As an apparent example of an invention that should not be patent worthy, Justice Sotomayor, the newest member of the Court, is crediting with asking “why not speed dating?” [Court observers note that the transcript may be in error as to whether she said “speed dating” as reported in the media or “speaking”, but “speed dating” is a more interesting hypothetical].

In response to Justice Sotomayor, I say, “why not?” A brief review of Wikipedia on the subject, as it is at least in Wikipedia’s eyes deserving of its own web page, shows that “Speed dating is a formalized matchmaking process or dating system whose purpose is to encourage people to meet a large number of new people.” Certainly, this is a worthy goal for society to encourage.

“Speed dating” (two words with a space, in contrast to the single word which is a registered trademark of Speeddating Foundation., see US Trademark Registration No. 2,463,420) is a recent innovation. According to Wikipedia, “the first speed-dating event took place at Pete’s Café in Beverly Hills in late 1998” and “several commercial services began offering secular round-robin dating events” thereafter.

Many different techniques of speed dating have developed, with different themes and rules, all with the lofty goal of introducing two hopefully compatible people, who might not have otherwise met, in a time efficient manner. Each has its own process – a series of steps performed – many of which have proven profitable for their organizers and the individuals who pay to participate in these events.

It is not just Wikipedia that has found the topic worthy of investigation: the University of Pennsylvania and others have studied the events, and published their research findings. Further, pop culture has featured the concept in television shows like Sex in the City and in movies like Hitch.

Finally, perhaps Justice Sotomayor will be surprised to learn that the US Government has recognized that, at least when a speed date was tied to a computer in a manner conceived by Mordechai Teicher, the invention was entitled to patent protection in US Patent No. 7,305,398, entitled “Apparatus and Method for Managing Social Games”.

Peggy Pascoe is Professor of History and Ethnic Studies at the University of Oregon. Her book, What Comes Naturally: Miscegenation Law and the Making of Race in America, has won two awards from the Organization of American Historians: the Lawrence Levine Prize for the best book on American cultural history and the Ellis Hawley Prize for the best book on political economy or American institutions. In the post below she looks at the actions of Justice of the Peace Keith Bardwell.  Read her previous OUPblog post here.

Louisiana Justice of the Peace Keith Bardwell refuses to marry interracial couples. He’s been doing so for years, but it wasn’t until October 2009, when he refused to marry Beth Humphrey and Terence McKay, that his actions attracted attention.

Appalled by Bardwell’s practice of checking with every couple who comes before him to see if they are interracial, then insisting that interracial couples go to other justices of the peace for their wedding ceremonies , Humphrey and McKay, the ACLU, the NAACP, Louisiana Governor Bobby Jindal, and Louisiana Senator Mary L. Landrieu have all called for Bardwell’s resignation.

Bardwell insists he hasn’t done anything wrong. “It is my right,” he said, “not to marry an interracial couple.” He doesn’t even understand why Humphrey and McKay were offended by his refusal. “I’m not a racist,” he insists. “I try to treat everyone equally.”

“In some parts of this country,” a friend of mine commented wryly, “it’s still the 1930s.” For most of American history, Bardwell’s refusal to marry an interracial couple would have been standard public policy. Laws against interracial marriage were, in fact, America’s longest-lasting and most fundamental form of race discrimination.

After the first such law was passed by the colony of Maryland in 1664, miscegenation laws thrived for the next three centuries. By the 1930s, 30 states banned interracial marriage, many of them prohibiting whites from marrying Chinese, Japanese, Filipinos, and American Indians as well as blacks.

Courts justified these laws by insisting that interracial marriage was “unnatural,” a claim that became so pervasive that by 1958, 94 percent of Americans told pollsters they opposed interracial marriage. Judges claimed that because the laws punished both the black and white partners to an interracial marriage, they affected blacks and whites “equally.” Like Keith Bardwell, they persuaded themselves that equality somehow demanded that public officials refuse to marry interracial couples.

The U.S. Supreme Court exposed the absurdity of this line of thinking in the 1967 case of Loving v. Virginia, which declared Virginia’s ban on interracial marriage unconstitutional. “There can be no doubt,” Chief Justice Earl Warren wrote, “that restricting the freedom to marry solely because of racial classifications violates the central meaning of the Equal Protection Clause.” Ever since the Loving decision, refusing to marry an interracial couple has been—and despite Bardwell’s protestations, still is—a clear denial of constitutional rights.

In the forty years since Loving, there has been a historic turnabout in public opinion; today most whites and blacks tell pollsters they approve of interracial marriage. There has also been a steady increase in interracial marriages, which now number in the millions. According to some estimates, in 2005 as many as 7% of American married couples were interracial, though the number of marriages between whites and blacks stood at a much more modest 422,000.

Yet it would be a mistake to assume that attitudes like Bardwell’s can be safely consigned to the past. A significant segment of several state populations still refuses to recognize that interracial marriage is a legal right. In 1999 and 2000, when South Carolina and Alabama finally got around to removing bans on interracial marriage from their state constitutions, the public vote was roughly 60 percent for removing the bans and 40 percent for leaving them in the state constitutions.

In other words, Keith Bardwell is entirely wrong, but he’s not entirely alone. Perhaps this helps explain why he’s gotten away with his outrageous behavior for so long. In the end, though, it only makes it all the more important that he be removed from public office. The disappointed bride, Beth Humphrey, said it best. “He doesn’t believe he’s being racist,” she said, “but it is racist.”

By Edward Zelinsky

Because the rate of inflation for 2009 has effectively been zero, the Social Security Administration has announced that Social Security payments will stay flat for 2010. In response, the Obama Administration has asked Congress to send every Social Security recipient an additional $250 in 2010.

This is a bad idea. The Administration’s proposal is both unfair and misfocused.

Many Americans would be delighted to have the same deal as Social Security recipients, namely, the identical cash income in 2010 that they received in 2009. To millions of newly unemployed Americans, that looks like a good deal. Not as good as being president of a bailed-out bank, but still a good deal.

For 2010, the salaries of many Americans working in the private sector are frozen or reduced. In countless cases, compensation decreases are taking the form of fringe benefits eliminated or reduced, for example, the termination of employers’ 401(k) contributions.

As the latest saying goes, for these working Americans, flat is the new up. It is inequitable for federal taxpayers to finance $250 checks in 2010 for Social Security recipients with stable incomes, but not for the working and unemployed Americans whose incomes have declined, often precipitously.

And this is before we consider the tax-free nature of most Social Security benefits.

To illustrate, compare a young married couple with a retired couple receiving Social Security benefits. Let us suppose that both of these families have annual incomes of $20,000. The members of the hypothetical young family have minimum wage jobs while the retired family receives yearly Social Security benefits of $20,000.

While the nominal, pre-tax incomes of these two families are identical, the younger couple pays FICA taxes of $1,530. In contrast, the retired couple receives all of its Social Security payments tax-free. Thus, on an after-tax basis, the younger family has substantially less income per person than the older couple.

If federal checks are to be sent to either of these couples, the younger family is the more deserving recipient. Neither of these families is rolling in dough. However, there is no reason to target federal largesse to the retired couple rather than the young working family, with the same nominal income but which pays FICA taxes on all of its income.

In effect, the younger family would, by its FICA tax payments, finance the $250 checks the President wants to send to seniors.

The Administration has suggested other programs for 2010 which make more sense than the proposed $250 check to Social Security recipients. The Administration has advocated that, in light of the poor job market, unemployment benefits be extended and that so-called COBRA subsidies also be prolonged to help the unemployed purchase continuing medical insurance from their former employers. Both of these suggestions are compelling. Indeed, the COBRA subsidy should be made permanent.

If the federal fisc provides additional relief beyond this, Congress should expand the earned income tax credit for 2010 to relieve low-income working families, like our hypothetical younger couple, of some of their tax burden.

In contrast, the proposal to send all Social Security recipients $250 is ill-conceived. This proposal is not fair to working and unemployed Americans struggling with reduced incomes and tax obligations. This proposal misdirects the focus of federal assistance. When it comes to the $250 checks for seniors, Congress should just say no.

Dennis Baron is Professor of English and Linguistics at the University of Illinois. His book, A Better Pencil: Readers, Writers, and the Digital Revolution, looks at the evolution of communication technology, from pencils to pixels. In this post, also posted on Baron’s personal blog The Web of Language, he looks at the new FTC regulations concerning bloggers.

The Federal Trade Commission has issued new rules requiring bloggers to disclose any compensation they may receive for product placements, endorsements, and testimonials.

According to the FTC rules, after December 1, “the post of a blogger who receives cash or in-kind payment to review a product is considered an endorsement. Thus, bloggers who make an endorsement must disclose the material connections they share with the seller of the product or service.”

Since it’s only October, I don’t have to tell you yet that I am an Oxford University Press author as well as a regular user of such fine OUP products as The Oxford English Dictionary (online subscription paid for by my university library) and the second edition of Jesse Sheidlower’s fine book, The F-word (Jesse, I haven’t got my free copy yet. If you don’t send it soon, I’ll have to delete this mention from my post – imagine what that will do to your Amazon Sales Rank). I’m telling you this anyway, not because the law requires it, but because I’m a stand-up guy.

Plus the FTC’s ban on endorsements won’t affect me directly, because most of my blogging is satirical, and the makers of the things that I satirize – fans of official English, conservative politicians, researchers who use fMRIs to tell what part of my brain lights up when I blog, and people who are zealous about correct grammar, still refuse to pay me for making fun of them.

But the few bloggers who are actually making money or getting free stuff are worried that they’ll have to disclose the goodies they receive from sponsors for a positive mention online. Book bloggers will have to say, “I love this book and you will too, although you’ll have to pay for your copy and I got mine for free,” which is causing many of them to give up reviewing, or to use the f-word a lot more frequently, hoping they’ll get a mention in the third edition of Jesse Sheidlower’s marvelous book. Did I tell you that it’s called The F-word?

All of this stems from the fact that online product reviews are a booming new phenomenon, a growing genre of literary expression made possible by the existence of Web 2.0 (available in fine stores everywhere). For example, when I go shoe shopping at zappos.com, I can see how many people gave the sneakers I’m looking at how many stars. And I can read comments like “I have been very pleased with the comfort, cushion, and fit,” which prompts me to respond, “That would be great if only I had your feet.” But another reviewer of the same item says, “I hate these shoes,” which doesn’t help either considering that the reviewer has given them a full three stars out of a possible five, which is the online equivalent of grade inflation.

Online reviewers are often anonymous, so I don’t know if the reviewer is a company shill or someone who works for the competition. But this is nothing new – eighteenth-century reviewers writing under pen names routinely plumped their books in newspapers or magazines, or attacked their rivals, and editors, many of whom were already scrounging to find copy for their journals, were only too happy to print whatever came their way. Why should Zappos or Amazon, sites where I frequently shop, be any different today?

As for impartial reviews, and there are certainly a lot of these, my sense is that more people will go online to complain than to praise a product. If your new clothes washer is broken, you have lots of free time to grouse in the blogosphere while connected to wi-fi at the laundromat. If it’s working just fine, you’re too busy throwing in another load of laundry and sipping chablis to bother logging on. That makes it hard to know if a preponderance of negative comments is a true warning sign or just a statistical anomaly.

So far as blog-for-pay goes, though, truth in advertising requires that I tell you I work in and for the state of Illinois, a state whose former governor, after instituting a requirement that all state employees pass an annual ethics test, was impeached for attempting to sell Pres. Barack Obama’s newly-vacated senate seat to the highest bidder. The governor before him was convicted of selling drivers licenses while he was Secretary of State. I just completed my annual ethics training, but in contrast to these big players, anything that I have to sell on my blog is small potatoes, which probably explains why advertisers aren’t knocking each other down to get to me, and why I’m not required to report my blogging income, which is ZERO in case you haven’t been paying attention and would like to remedy that situation, to my employer or to the IRS.

By Edward Zelinsky

Few governmental agencies are as widely criticized as the IRS. Some of this criticism is inevitable resentment towards the tax collector. It is, Edmund Burke famously observed, as impossible “to tax and to please” as it is “to love and be wise.” The IRS rarely pleases and is never loved.

Moreover, the IRS has become a particularly tempting target for opportunistic politicians. Rather than engage in the difficult work of controlling public expenditures and rationalizing the tax law, it is easier for elected officials to engage in faux populist bashing of the IRS for its enforcement of tax laws for which Congress and the President are responsible.

However, a substantial portion of contemporary criticism of the IRS is justified. It is, for example, troubling that the IRS consistently attacks as unreasonable the compensation paid to owners of closely-held corporations while acquiescing to the tax deductibility of far larger salary payments to the executives of publicly-traded firms.

It is, in the final analysis, critical to the operation of a modern society that taxes be collected fairly and efficiently. It is accordingly important for those of us who have criticized the IRS (and expect to do so in the future) to speak up when the IRS gets something right.

And recently the IRS has done something important right: cracking the secrecy of the Swiss banks which help affluent Americans to cheat on their U.S. taxes.

This is a simple matter of fairness. Middle and working class Americans, when they save outside their IRAs and 401(k) accounts, typically put cash into local banks and credit unions. From such institutions, these taxpayers receive Form 1099 annually and generally comply with the legal obligation to pay federal income tax on the interest credited to their bank and credit union accounts. Such middle and working class taxpayers may also be subject to back-up withholding under which the institutions paying them interest retain some of that interest and send it to the IRS.

In contrast, for years, a disturbingly large number of affluent Americans have knowingly cheated on their U.S. tax obligations by placing savings in foreign bank accounts which they do not report to the IRS, even though these citizens are legally obligated to disclose foreign accounts to the IRS and to pay U.S. income tax on the interest earned by such foreign accounts. The result has been something of a two-tier system under which, to paraphrase Leona Helmsley, only the little people pay taxes on bank account interest.

Central to the creation and promotion of this two-tier scheme have been the efforts of Swiss bankers with the active connivance of the Swiss government. Tax evasion and money laundering are major Swiss industries which Swiss bankers have conducted with the support of Switzerland’s bank secrecy laws. Those laws have assured high income U.S. taxpayers that they will not be caught if they violate U.S. law by putting savings into undisclosed Swiss bank accounts and failing to pay the federal income taxes owed on the interest paid on such accounts.

Recently, the IRS has begun to crack the wall of secrecy surrounding Swiss bank accounts by obtaining the names of U.S. citizens holding such accounts and enforcing the tax law against these individuals. Every American who has been paying his federal income taxes on his interest-bearing accounts should applaud this development.

This being the IRS, there are those who have criticized the IRS’s efforts as overdue and as obtaining the names of only a fraction of the U.S. citizens who have cheated on U.S. taxes via Swiss bank accounts. Others have faulted the IRS for giving American citizens an amnesty period during which such citizens will generally be spared the worst penalties if they now come forward and pay the back taxes owed on previously undisclosed Swiss bank accounts.

It would indeed be unfortunate if, having achieved impressive initial success, the IRS were to rest on its laurels, rather than continue its efforts to obtain more names of U.S. citizens with undisclosed Swiss bank deposits. Whatever the merits of the amnesty deployed by the IRS (it probably is a necessary evil), this should be a one-time offer to those who have cheated on U.S. taxes, an offer not to be repeated.

When I was in government, I invariably heard from persons who were unhappy with my performance but rarely received a word of commendation from those who favored my decisions. This always troubled me. So, as one who has not hesitated over the years to criticize the IRS, let me commend the IRS for its crackdown on Americans who have been cheating on U.S. taxes through Swiss bank accounts. On this one, the IRS is getting it right and deserves the support of all U.S. taxpayers.

From a young age, Justice Albie Sachs played a prominent part in the struggle for justice in South Africa. As a result he was detained in solitary confinement, was subject to sleep deprivation, and eventually blown up by a car bomb that cost him an arm and the sight in one eye. Later, he returned to play an important part in drawing up South Africa’s post-apartheid Constitution, and served as a member of the Constitutional Court for fifteen years. As his time on the Court comes to an end, he has put together a book called The Strange Alchemy of Life and Law, which combines personal reflections with extracts from some of his key judgements. In the excerpt below, Sachs talks about his early life and the ways in which the dual strands of his life – ‘as lawyer and as outlaw’ – were eventually drawn together.

Life prepared me in a most bizarre way for becoming a judge. If judicial office had been my goal I was doing everything right… eight years of study and three degrees including a doctorate in law, a decade of busy practice as an advocate at the Cape Town Bar, and, later, earnestly teaching law in three continents and publishing several books, some scholarly, others autobiographical. Yet as far as the actual impact of the law on my life was concerned, everything was wrong: as a student my home was raided before dawn by the police and I was subjected to what was called a ‘banning order’ that restricted my movements and activities; while at the Bar I was twice placed in solitary confinement by the security police, first for 168 days and later for 3 months, during which I suffered torture by sleep deprivation; when I completed my doctorate I was living as a stateless person in exile in England; and some years later while doing legal research in Mozambique I was blown up by a bomb placed in my car by my country’s security agents, losing an arm and the sight of an eye.

The fact is that for much of my life I lived simultaneously as lawyer and as outlaw. Anyone who has been in clandestinity will know how split the psyche becomes when you work through the law in the public sphere, and against the law in the underground. Yet the causes were easy to understand and the resolution as obvious to predict—only when we ended apartheid and realigned the law with justice, could I become whole again. Less dangerous but more disturbing was a deeper disquiet at the centre of my legal soul, one that was aggravated by the grotesqueries of apartheid, but that had a more profound and more problematic genesis.

I first became aware of it when I was a student at the University of Cape Town. The sun streamed into our lecture rooms as I listened dutifully to professors speaking on what I have since heard described as the beautiful abstraction of norms. To pass exams I would repeat elegant textbook phrases about the rule of law, basic rights and the independence of the judiciary. Then at night, in a shack lit by flickering candles, I would conduct study classes and see the expressive eyes and mouths of desperately poor people incandescent with determination to give all their energies, even their lives, for justice and freedom. I would be deeply animated by a vitality and laughter that seemed vastly more meaningful for the achievement of justice than any of the erudite but passionless phrases of my law school. Two worlds in the same city, yet totally apart, joined by pain rather than by hope, and I did not live completely in either. For more than thirty years of my life as a lawyer I battled with this divided self. Unexpectedly, it was the bomb that blasted the schism away. The bomb literally hurled me out of my legal routine, and freed me to recreate my life from the beginning. I learnt to walk, to stand, to run… and to prepare for the writing of South Africa’s new Constitution. Suddenly, joyously and voluptuously, the grand abstract phrases of the legal text books united with and embraced the palpable passion for justice of the disenfranchised. And far from the law constituting a barricade of injustice that had to be stormed and torn down for freedom to be achieved, it became a primary instrument for accomplishing peaceful revolution. In the months and years of constitution-making that followed, the formerly contradictory influences of my life were able to synergise. If the process of making of a new basic law helped my country to heal itself, it also resolved my own deep internal contradiction.

And so it came to pass that if some people are born to be judges and some achieve judicial office, I was one of those that had judicial office happily thrust upon him. And what extraordinarily rich and intellectually exciting years have passed since the day fourteen years ago when newly-elected President Nelson Mandela appointed me and ten colleagues as members of South Africa’s first Constitutional Court.

I never took my being a judge as something natural, preordained, and unproblematic. The intensely contradictory nature of my earlier relationship to the law would not have allowed this. Furthermore, being involved in socio-legal studies in my years of exile led one to observe and interrogate what I and my colleagues were actually doing. And then I was constantly being pressed by universities and legal groups throughout the world to explain what they saw as the miracle of the establishment of a constitutional democracy in a country destined for a racial bloodbath. If you want to give credit to the miraculous without believing in miracles, you are compelled to search with particular diligence for rational explanations. How did the transition take place, and what role was I now playing as a judge?

I found myself giving presentations all over the globe on questions that were raising similar controversies in the most varied jurisdictions. The lectures, repeated over the years in places as far apart as New York, London, Delhi, Cambridge and Chicago, were collected for a possible book of essays. The bundle lacked connecting texture, so to add some starch I began to mix in extracts from judgments that had been delivered in my Court, some by myself, some by colleagues. At the very least this would show an interesting contrast between the more accessible and personalized cadences of a lecture, and the oracular and disinterested voice of a judgment. I noticed, however, that the compare-and-contrast effect of conjoining narrative text with judgment excerpts was beginning to provide my imagination with something more exciting—glimpses of a fascinating and not very obvious chemistry between my non-judicial life experiences and my decision-making as a judge. And in this way a totally new book began to construct itself within the innards of the manuscript.

Elvin Lim is Assistant Professor of Government at Wesleyan University and author of The Anti-intellectual Presidency, which draws on interviews with more than 40 presidential speechwriters to investigate this relentless qualitative decline, over the course of 200 years, in our presidents’ ability to communicate with the public. He also blogs at www.elvinlim.com. In the article below he looks at the Republican Party. See his previous OUPblogs here.

A political movement is not the same as the party that claims to represent it.  And the disconnect between the Republican party and the conservative movement is sharper today than it has ever been since the heyday of the Reagan revolution. Consider the rising star of Glenn Bleck – as if one Rush Limbaugh isn’t enough – and the marginalization of Michael Steele, who wasn’t even invited to speak at last weekend’s march in Washington and who was denied the opportunity to speak at a Chicago Tea party in April. The angry voices in town-halls and the national mall are not evidence that the Republican party has found its voice, but that it hasn’t. When citizens feel that elected officials don’t speak for us, we take up arms ourselves (sometimes, literally).

The Reagan coalition is fraying, because the libertarian faction of the conservative movement has had enough of sitting at the back of the movement’s bus. For too long, they bought Ronald Reagan’s and George Bush’s argument that expensive and deficit-increasing wars are a necessary evil to combat a greater evil, but the bailout of the big banks last Fall was the last straw for them. If Irving Kristol once said that neoconservatives are converted liberals (like Ronald Reagan himself) who had been “mugged by reality,” Tea Partiers are conservatives who have woken up to the fact that neoconseratives are no different from pre-Vietnam-era liberals chasing after utopian
dreams.

The reason why Rush Limbaugh and Glenn Beck are the heroes of the movement, and Michael Steele is persona non grata, is because fiscal conservatives no longer trust the Republican party who for too long has placed their agenda on the backburner. This, in turn, has been brought on by the fact that neoconservatives have lost their privileged status within the movement because of the delegitimation of the adventure in Iraq and the onset of the economic recession. While the end of the Cold War vindicated neoconservatism, the events of September 11 gave it a new lease of life. Together, these two contingent facts of history contributed considerably to the longevity of the Reagan revolution, even as the botched and expensive adventure in Iraq put a screeching halt on the neoconservative ascendancy.

Americans today face a crisis in their pocketbooks and not with foreign nations. Tax-and-spend liberals are a worthy enemy, but they are nowhere as scary or as unifying as the “Evil Empire” or the “Axis of Evil.”

This is why Republican public officials are doing a lot of soul searching these days as they try to make sense of the disconnect between their ideology and party that has been brought on by neoconservatism’s decline. The lack of coordination and indeed the widening chasm between the party and the movement can be evidenced in Arlen Specter’s cross-over to the Democratic aisle, Senator George Voinovich’s complaint that his party was being “taken over by Southerners,” and in Olympia Snowe’s and Susan Collins’ overtures to Barack Obama.

Most people will agree that we know exactly what Barack Obama is up to, politically. The right-wing talk-show hosts will be the first to tell us. But we really do not know what the Republican party stands for or who could possibly lead it in 2012. This is because the party has lost its synthesizing logic and lacks a unifying hero. This weekend, a straw poll conducted at the Values Voters Summit put Mike Huckabee on top, with 28 percent of the vote, because the straw pollers are Values Voters, who constitute yet another faction within the conservative movement. But what was more telling is that even though Sarah Palin did not even turn up for the event, she nevertheless garnered the same endorsement as Mitt Romney, Tim Pawlenty, and Mike Pence, at 12% each. This is conservatism in
search of a leader.

Because it is parties that win elections and not movements, Republican members of congress should not be taking any comfort from the passionate protests of the Tea Partiers. Instead, they should be embarrassed about the fact that they have been trying to play catch up with a movement that has lost hope in its elected officials. More importantly, the Republican party must find a new way to unite the neoconservative, libertarian, and traditionalist factions of the movement to have any chance of standing up against a president and party, who in 2010, could well be riding the wave of an economic recovery to electoral success.

Elvin Lim is Assistant Professor of Government at Wesleyan University and author of The Anti-intellectual Presidency, which draws on interviews with more than 40 presidential speechwriters to investigate this relentless qualitative decline, over the course of 200 years, in our presidents’ ability to communicate with the public. He also blogs at www.elvinlim.com. In the article below he looks at the Tea Party Movement. See his previous OUPblogs here.

On September 12, 2009, tens of thousands of Americans gathered at the national mall for a mass rally, itself a culmination of a 7,000 mile bus tour that had started two weeks before in Sacramento, California, to protest the tax and spending policies of the Obama administration.

Participants of the 2009 Tea Party movement, which was organized just before Tax Day this year, took their inspiration from the Boston Tea Party of 1773, and not, say, 1776, South Carolina’s Ordinance of Nullification of 1832, or the Confederacy of 1861-65, because while rebellion against George III was legitimate and even glorious, rebellion against the government of the United States was ostensibly not. But a closer examination of history reveals the incoherence of the intended historical parallel, and the plausibility of the unintended historical parallels.

The Bostonian colonists in 1773 were objecting to the right of a distant legislature, in which they had no representation, to pass laws (in this case the Tea Act of 1773) affecting their livelihoods. “No taxation without representation” isn’t just a line one finds on a Washington, DC bumper sticker, it is an ancient British constitutional principle to which the American colonists were legitimately appealing. In this sense, the Boston Tea Partiers were still operating within the framework and premises of the British constitution and seeking redress for where its application fell short.

This clearly is not the case for modern Tea Partiers. Not only does every single protester in the modern Tea Party movement have a representative and a senator representing him or her in at the federal level, Washington, DC – the analogue to the foreign metropole (from the Greek “metropolis,” meaning “mother country”) that London was – does not even enjoy such representation! While the Boston Tea Party was a protest against the British government from America, the modern Tea Party is a protest against American government from no less than her capital city.

The appropriate historical parallel then, is not 1773, but 1776, 1832 and even 1861-65, when Americans challenged the authority of their own government. That modern Tea Partiers have 1. rallied to the support of Texas Governor Rick Perry’s expression of sympathy to Texans advocating secession during a Tea Party in April; 2. brought their loaded weapons to town-hall meetings about health-care reform during Summer 2009 in a show of defiance to the president; 3. were, as Rush Limbaugh was, “ecstatic” about Representative Joe Wilson’s (R-SC) indecorous outburst in the middle of President Obama’s speech to a joint session of Congress on September 9, 2009, suggests that the Tea Party movement intends to strike at the very legitimacy of American government. For what is rebellion but the rejection of deliberation and the turn toward politics by any other means — be it secession, physical
interpositioning, or incendiary impudence? And so it is a movement Alexander Hamilton would have scoffed at, but one Thomas Jefferson would have gleefully partook.

The first amendment gives us a right to articulate and seek redress for our grievances against the state, but it is worth stating that there is no first amendment without a constitution, which some of Governor Rick Perry’s constituents appear to be challenging. So on pain of self-contradiction, all Americans must concede that we do not have a constitutional right to revolution. However, this does not mean
that we have not inherited a primal instinct to rebel. Revolution is in our blood, because we are the daughters and sons of revolutionaries. Which is why among those rights the Declaration of Independence held “self-evident,” is “that whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government.”
On this point, the Declaration of Independence is fundamentally at odds with the US constitution and its claim to a “more perfect union.” No one has successfully exercised this right since 1789, but there are
sections in the country who have never stopped believing that such a right is any more inalienable than the fact that all men are created equal.

1773 is an oblique way of referencing 1776, which is itself a way of leapfrogging 1789, the year a federation of sovereign states gave way to a more consolidated federal government, to which, like modern Tea Partiers, the author of the Declaration of Independence would feel considerable antipathy as opposition leader to the Federalists and later president, and to which Publius, in contrast, recommended a measure of “veneration” — a sentiment Representative Joe Wilson could not, in the hallowed walls of the US Capitol, bring himself to possess.

Robert Veatch is Professor of Medical Ethics at the Kennedy Institute of Ethics, Georgetown University. He received the career distinguished achievement award from Georgetown University in 2005 and has received honorary doctorates from Creighton and Union College. His new book, Patient, Heal Thyself: How the “New Medicine” Puts the Patient in Charge, he sheds light on a fundamental change sweeping through the American health care system, a change that puts the patient in charge of treatment to an unprecedented extent. In the original article below, Veatch looks at how the empowerment effected Michael Jackson’s medical decisions and the responsibility of his doctor.

Dr. Conrad Murray is the doctor who apparently administered a fatal dose of the anesthetic, propofol, to Michael Jackson in a desperate attempt to respond to his cries for help in getting some sleep. He has received rough treatment from the media. Jackson’s death has been ruled a homicide and the media are reporting that he will be charged with manslaughter. I think that judgment is too quick and want to come to the doctor’s defense.

The case is, of course, being tried in the press before we have all the details, but the likely scenario is emerging. Making some plausible assumptions, I think a case can be made for the doctor’s decisions. Let me assume, for purposes of discussion, that the doctor did not intend to kill Michael (He was reportedly being paid $150,000 a month to be Michael’s full time physician. Even if he had completely abandoned his duty to serve the patient, he would be a fool to intend the death.) Let me assume that the lethal effects were foreseeable, but not inevitable side effects of a very potent drug. Let me also assume that Michael had been informed by Dr. Murray how dangerous the drug was and how unusual it was to use it for this purpose. Possibly, he had even told Michael that the drug’s labeling did not include the use of propofol outside of a hospital and that almost all physicians would refuse to use it this way.

With these assumptions, a prosecutor will have a difficult time accusing the doctor of a crime. It is not even clear to me that “homicide” is the right term for the death. First, it is important to realize that “off-label” uses of drugs by doctors is not illegal. It is done all the time when a physician becomes convinced that it in the patient’s interest. Second, it is critical to understand that medical choices about what is in a patient’s interest are directly dependent on the patient’s goals and values. They cannot simply be read out of a textbook as if medical science can prove what is in a particular patient’s interest. (Think about whether aggressive chemotherapy is in a terminal cancer patient’s interest or whether an abortion is in the interest of a pregnant woman.) The patient’s interest is necessarily a subjective matter about which only the patient can have direct knowledge.

It seems clear that Michael was in the advanced stages of insomnia and was in excruciating agony from persistent lack of sleep. That is an awful situation about which patients often have to make desperate choices. None of us can know what was in Michael’s head that caused the insomnia or led him to plea for pharmacological intervention. We do know that other drugs had been used even that fateful night (benzodiazepines that are often used to reduce anxiety and induce sleep). These other drugs had failed to solve the problem and made the use of the propofol even more dangerous, something Dr. Murray surely knew and presumably had told Michael.

Now the question for Dr. Murray and for Michael Jackson is, given his desperate situation, is the only drug that will give him some sleep worth the very great risk of side effects, even death? Surely, for most of us the answer would be negative, but that doesn’t mean it was Michael’s answer. Given that he had apparently received the drug many previous times without side effects, I don’t see how we can claim that Michael would be wrong to decide that the risk would be worth it in his case. Deciding whether the drug is “worth it” is a value judgment, not a scientific fact that the doctor can look up in a book. Even if almost everyone else would have decided not to try the desperate off-label use, I don’t know how we can say Michael’s gamble was wrong for him.

But, you might say, even if Michael’s judgment was understandable, surely Dr. Murray was wrong to go along with his patient’s demand. Surely, other physicians would not have agreed. A physician is supposed to be a responsible professional who has the right not to go along with a patient’s very unusual and risky demand. Most physicians would have refused to provide the propofol (at least outside of a hospital) and that is understandable, but this does not prove that Michael’s value judgment about the risk was wrong or that Dr. Murray was wrong to comply. Some medical issues are appropriately judged by what is called a “standard of care.” The correctness of the physician’s behavior is judged by what his colleagues similarly situated would have done. This, however, is not a decision that should be judged by that standard. If it is possible that Michael had made a rationally defensible decision that the risk was worth it for him, then a physician is within his rights to decide to cooperate in a legal behavior if he so chooses. He surely would have had the right not to provide the dangerous drug for off-label use, but he also has the right to decide it is a tolerable risk. If he does so after the patient is adequately informed, I don’t see how we can fault him assuming that the lethal effect was not intended.

This turns out to be crucial for the rest of us if we are to get high-quality, rational medical care. We have for many years recognized that most powerful, valuable drugs have anticipated side effects. If we choose to take the risk and the side effect occurs, we don’t say that the choice was a mistake. If the side effect is death, we don’t say it was a homicide. Provided the intended beneficial effects are good enough, we say that the side effect is tolerable even if it is foreseen. That, in fact, is precisely the justification for doctors’ use of narcotics to control severe pain in cancer patients even though they know that the side effect can be respiratory depression and even death. Most ethical systems have long acknowledged that such “unintended, but foreseen” deaths are tolerable. Normally, such a death is not deemed a “homicide.” Just may be, if we put ourselves in Michael’s shoes and plug in the value judgments he made, we can understand why Dr. Murray, apparently with great reluctance, was willing to go along. I can’t fault him if that was what he did.