Monday round-up

By James Bickford
on Apr 18, 2011 at 8:26 am

This morning, the Court will hear oral argument in Microsoft v. i4i; at issue in the case is whether a patent must be proven invalid by clear and convincing evidence or instead by some lower standard.  Ronald Mann previewed the case for this blog, while Steve Seidenberg discusses the history of the evidentiary standard in patent litigation in a preview for the ABA Journal.  Lisa Larrimore Ouellette also discusses the case on her Written Description blog.  On the op-ed page of the Wall Street Journal, Peter Huber describes a battle between innovators, whose work can be stymied by the over-enforcement of intellectual property, and “patent trolls” who “buy entire patent portfolios, often from failing companies, and then search for targets to sue.”  Huber argues that patents should be scrutinized more aggressively and upheld more selectively.  Doug Lichtman echoes Huber’s thoughts in an op-ed for the New York Times in which he argues that juries should be “given real freedom to review patent validity” to compensate for the inevitable shortcomings of the patent approval process.

Tomorrow, in American Electric Power v. Connecticut, the Court will consider whether federal law authorizes states and private parties to sue utility companies over their contribution to global warming.  Lyle Denniston previews the case for this blog, while Jess Bravin and Stephen Power of the Wall Street Journal and Mark Sherman of the Associated Press (via Grand Forks Herald) also have coverage.  On the op-ed page of the Boston Globe, Laurence Tribe argues that this suit and others like it “represent a profoundly dangerous perversion of the judicial process and would likely retard efforts to grapple with climate change and the threats it poses to human civilization” by interfering with the EPA’s regulatory role.

On Friday, the federal government filed a petition for certiorari in United States v. Jones, asking the Court to review the D.C. Circuit’s holding that police must obtain a warrant before installing a GPS tracking device on a car.  The government argues that GPS devices are fundamentally no different than traditional forms of police surveillance.  At the Blog of Legal Times, Mike Scarcella describes the facts and links to the decisions below.  The Associated Press has coverage (via Seattle Post-Intelligencer), as does the Washington Times.  Crime and Consequences, the Volokh Conspiracy, and the Law Blog of the Wall Street Journal also discuss the petition.

In Slate, Dahlia Lithwick comments on the recent congressional appearance by Justices Kennedy and Breyer, at which the Court’s recusal policies were discussed; Lithwick argues that “[i]ndividual judges, faced with questions of compromising judicial conduct, are in the worst possible position to judge themselves.  Joan Biskupic has a report on the hearing for USA Today.

Briefly:

• In USA Today, Joan Biskupic previews Nevada Commission on Ethics v. Carrigan, which is scheduled for oral argument next Wednesday.  Carrigan is a city councilman who was reprimanded for voting on a casino project in which his campaign manager had been involved; he claims that the reprimand violated his First Amendment rights.
• The Austin American-Statesman reports on the role of the University of Texas Capital Punishment Clinic in representing petitioner Hank Skinner in Skinner v. Switzer.