By Carlyn Kolker

Showdown in Texas

2/9/12

Now, for a quick trip to Tyler, Texas, where a monster patent trial involving the rights to the "interactive web" (i.e., the World Wide Web you use every day) is taking place. Michael Doyle, a biologist, and his company, Eolas Technologies, has sued companies including Google, Yahoo, GoDaddy, JC Penney and Staples claiming they have used Eolas's patents for viewing images on the Web. There will be four consecutive trials on the patents, and the federal courthouse in Tyler is brimming with lawyers, reports Joe Mullin on Wired.com. Eolas is asking for more than $600 million, Mullin reports. The company made headlines in 2003 when it won a $520 million verdict against Microsoft; the software giant later settled confidentially. No wonder Mullin is watching this case.

Paul Clement in another conservative test case

2/9/12

On Wednesday, Summary Judgments brought news that Paul Clement, the U.S. solicitor general under President George W. Bush, was representing the state of South Carolina in a lawsuit against the Obama administration over voter identification. The administration has blocked a South Carolina voter ID law, and the state is challenging that decision.

Clement has carved out quite a niche representing conservative causes in high-stakes lawsuits. He is the lead counsel, for example, in the paragon of conservative litigations: he's representing the 26 states challenging the Obama administration's healthcare law.

We can add another representation to that list. As my colleague Jessica Dye, who covers the federal courts in Brooklyn, points out, Clement and his law partner Viet Dinh are involved in an unusual dispute in the Eastern District of New York. The case is essentially a labor dispute with major political and constitutional questions grafted on. The National Labor Relations Board, which oversees labor disputes, sued the owners of an apartment complex in the Flatbush neighborhood of Brooklyn in late January, asking a judge to grant an injunction to end the lockout of 70 union members in a pay dispute. The building's owner, represented by Clement, says that the suit should be thrown out. It claims the NLRB is not properly constituted because President Barack Obama illegally named three members in a recess appointment in January. As Bloomberg News wrote last week, the lawsuit "may be a test case for whether President Barack Obama's appointments to the National Labor Relations Board are legal."

A coalition of businesses called the Coalition for a Democratic Workplace has asked U.S. District Judge Brian Cogan to file an amicus brief in the case on behalf of Clement's client. Interestingly, the Coalition for a Democratic Workplace is represented by Jones Day lawyer Michael Carvin. Clement and Carvin are likely spending a lot of time together these days: where Clement represents the states suing the Obama administration in the healthcare challenge, Carvin represents the federation of business challenging the law.

We reached out by phone and email to Clement to ask him how the Brooklyn case came to him, but didn't immediately hear back.

A hearing on the building owner's bid to dismiss the lawsuit is scheduled for Feb. 23. My colleague Jessica Dye promises to be there.

The mayor v. the church

2/9/12

Legal bills totaling $250,000: that's what John Cook, the mayor of El Paso, Texas, has already racked up as he fights a recall election over a vote he cast rejecting a ban on benefits for same-sex partners of municipal workers, Bloomberg Businessweek reports. Cook faces a special election in April after the pastor of El Paso's Word of Life Church launched a recall campaign against him. Cook voted to overturn a ballot initiative that voters had passed in November 2010 that limited benefits for city employees to city employees, legal spouses and dependent children. He's the only big-city mayor to face a recall campaign because of issues related to same-sex marriage, Bloomberg says, quoting representatives from the Human Rights Campaign, which supports same-sex partner rights, and Ballotpedia, a website that tracks elections. Tom Brown, the pastor leading the opposition campaign, defends his position, telling Bloomberg, "government should not be using tax dollars to endorse a social agenda."

Orcas and the Constitution

2/9/12

Well that was fast. On Monday we told you about a hearing in a motion to dismiss a lawsuit brought by five orcas (yes, the cetaceans also known as killer whales) against Sea World Parks & Entertainment. The case, brought in federal court in San Diego, alleged that Sea World violated the orcas' 13th Amendment rights not to be enslaved.

It took U.S. District Judge Jeffrey Miller less than 48 hours to throw out the lawsuit, as Reuters reported.

What intrigued Summary Judgments was Miller's discussion of the 13th Amendment in his seven-page opinion. The plaintiffs, represented by People for the Ethical Treatment of Animals, or PETA, had tried to make the point that even though the 13th Amendment, passed after the U.S. Civil War, had previously applied only to persons, various constitutional principles have been applied to new actors and in new contexts over time.

Essentially, this is the so-called living document approach to constitutional interpretation - it changes over time. Nice try, says Miller. "The primary difficulty with [PETA's] argument for the expansion of the scope of the 13th Amendment is that the Amendment is not reasonably subject to an expansive interpretation," writes Miller. In other words, Miller hews closer to the so-called originalist approach to constitutional interpretation - you have to stick with the framers' original intent. In effect, Miller is saying the 13th Amendment hasn't been subject to changing applications in these evolving times: it was intended to be about humans, and it's still about humans today.

The "decision does not change the fact that the orcas who once lived naturally wild and free, are today kept as slaves by SeaWorld," according to a spokeswoman for PETA quoted by Reuters.

Dan Defends Dad: A Citizens United tale

2/9/12

What's one way to make a dad proud? Defend his honor in an impassioned online column that is tweeted far and wide. Just ask Dan Abrams, the ABC News legal analyst. In a lengthy blog post, Abrams criticizes the media for going after his father, Floyd Abrams, the media lawyer who represented the winning side in Citizens United v. Federal Election Commission, the 2010 Supreme Court decision that changed U.S. election law.

Abrams the younger writes on Mediaite, the website he founded, that the press has propagated a "shameful, inexecusable distortion" of the controversial Supreme Court decision, and in doing so has misinterpreted the meaning and impact of the decision and directed "vitriol" at his father. While the court did uphold that corporations and unions have rights to make unlimited donations, which the media typically gets right in explaining the decision, it gets a lot of stuff wrong about the rights of individuals in campaign law, says Abrams. What the media gets wrong about Citizens United, according to Abrams:

-That the court allows individual campaign donors to remain anonymous (rather, says Abrams, the court upheld a requirement that donors are identified).

-That the court opened the way for wealthy individuals to give unlimited donations to PACs. (Nope, says Abrams, that dates to a 1976 Supreme Court decision that said the First Amendment allows individuals to make unlimited donations).

"You may disagree with the opinion, you may think that expanding the ability of corporations to fund campaign messaging is a true danger, or just as I do, that outside money is a major concern for our democratic system, but that doesn't change the fact that the political chattering set ought to be far more concerned and outraged by the indolence, indifference, or just bias, that has led to widespread misinformation" writes Abrams. Call him a paragon of filial fealty.

For a little fact-check, I caught up with some scholars in the campaign finance world.

"I agree that interpretations of Citizens United have been wildly misstated," says Harvard law professor Lawrence Lessig, who has written extensively about the decision. "There's been this kind of mistaken response that has been allowed to surge for too long."

Still, he says, there are misconceptions -- other than the ones Abrams enumerates -- about the decision that "get me more upset," says Lessig. The primary misperception, also prevalent in the public sphere, is that Citizens United held that corporations are individuals. Another one, says Lessig: "There's also this really crude idea that we need to amend the constitution saying money is not speech, which would be disastrous to many things."

On the other hand, Lessig notes, the inaccuracies of the reporting on the Supreme Court decision should not overshadow its impact.

"It's a pretty technical, arcane area of First Amendment law, but there's something unfair about the criticism of the public's reactions. Whether the details are right or not, the consequences are broad," says Lessig.

Adam Skaggs, an attorney with New York University's Brennan Center, which has been critical of the decision, says that while Abrams is right that the media has promulgated major misconceptions of the decision, he is also guilty of taking short-cuts when explaining the campaign finance landscape.

While it's true that the Supreme Court's 1976 decision in Buckley v. Valeo gave citizens the right to make unlimited donations, the vehicle through which they are now occurring - the so-called Super PACS - didn't exist until 2010, thanks to a D.C. Circuit opinion and subsequent FEC advisory opinion interpreting Citizens United.

"He's missing the point about the vehicles through which they are occurring," says Skaggs. "It's not to suggest he's wildly misleading. I just think he'd hold himself to the same high standard he is holding other people to."

I reached out to paterfamilias Floyd Abrams at his office at Cahill Gordon & Reindel to see what he thought of his son's eloquent defense, but didn't immediately hear back.

Summary Judgments for Feb. 8

Summary Judgments for Feb. 7

Summary Judgments for Feb. 6

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