April 2007 Archives

Idea Man

Today the Supreme Court decided KSR Int'l Co. v. Teleflex Inc., unanimously reversing the Federal Circuit and addressing the proper standard to be applied when considering a claim of patent invalidity based on obviousness. The Court, via Justice Kennedy, held that the Federal Circuit's approach was too rigid, and injected a pantload of uncertainty into an area of law that was already extremely difficult to navigate.

At issue was the "teaching, suggestion or motivation" (TSM) test, which essentially holds that a patent which combines elements that already existed in the prior art will be invalid for obviousness only if a person having ordinary skill in the art would find some "teaching, suggestion or motivation" to combine those elements based on his or her knowledge.

The TSM test was developed at the appellate level, rather than by the Supreme Court. Today the Court held that the TSM test "captured a helpful insight," and that "the idea underlying the TSM test" is not inconsistent with Supreme Court precedent. However, the Court further held that the Federal Circuit has improperly transformed "the general principle into a rigid rule that limits the obviousness inquiry." In other words, courts should be guided by the idea of the TSM inquiry, but shouldn't make any actual rules out of it. Crystal clear, right?

Kennedy also uses the term "common sense" four times (five if you count a quote in a parenthetical), further indicating that his conception of the obviousness inquiry is based on amorphous, undefinable concepts rather than rigid rules. "Rigid preventative rules that deny factfinders recourse to common sense," Kennedy writes, "are neither necessary under [the Court's] case law nor consistent with it." And in climbing inside the minds of fictional "persons having ordinary skill in the art," courts must keep in mind that "[a] person of ordinary skill is also a person of ordinary creativity, not an automaton."

Finally, the Opinion ends with some classic Kennedy philosophizing about the sweet mysteries of life:

"We build and create by bringing to the tangible and palpable reality around us new works based on instinct, simple logic, ordinary inferences, extraordinary ideas, and sometimes even genius. [Howard Roark, anyone?] These advances, once part of our shared knowledge, define a new threshold from which innovation starts once more. And as progress beginning from higher levels of achievement is expected in the normal course, the results of ordinary innovation are not the subject of exclusive rights under the patent laws. Were it otherwise patents might stifle, rather than promote, the progress of useful arts."

This was a case about computerized gas pedals, by the way.

For those of you who were fretting over the MacArthur Maze being too easy to get through, good news. A piece of it just fell the hell off. There was a flaming oil tanker involved. No one appears to have died, though the driver is in critical (and stable) condition. The tanker itself, according to one CalTrans worker, is approximately one inch big at this point.

Don't miss the photos.

The John Roberts Jerk Factor

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During John Roberts' confirmation hearings, he convinced most of the Senate and a larger percentage of observers that he was two things: (1) a thoughtful, right-leaning moderate and (2) a genuinely pleasant guy. This largely placated many erstwhile democratic critics who feared that Bush was attempting to appoint another Scalia.

As Chief Justice, Roberts quickly demonstrated that he was much more of a banner-waving conservative than he had let on. He has voted consistently (though not uniformly) with Scalia and Thomas, and his reasoning isn't nearly as nuanced as one would expect from a moderate justice like O'Connor or Kennedy. Additionally, it turns out that he's kind of a jerk as well.

Roberts' dissent in Mass. v. EPA was extremely condescending, and he took a sharper jab at Stevens in this week's Abdul-Kabir v. Quarterman, a death penalty case decided 5-4. The Volokh Conspiracy has analysis here. Each of these opinions are reminiscent of the arrogant sarcasm that has made Scalia such a colorful character on the Court and, fortunately, driven moderate justices away from his maniacal jurisprudence. While sarcasm is fun to read, I don't think it adds much in the way of constructive discourse in the context of the Court.

It's looking more and more like Bush slipped a Scalia past us after all.

An Extremely Depressing Cartoon


This showed up on Slate this morning:

autism cartoon

Good God. What exactly is Jim Borgman trying to say to us here? That we shouldn't have children because they might be autistic? That every pregnant couple should leave each day of their pregnancy in crippling fear that their child will be autistic?

Here's what Wikipedia has to say about Autism rates:

"The incidence of diagnosed autism has increased since the 1990s. Reasons offered for this phenomenon include better diagnosis, wider public awareness of the condition, regional variations in diagnostic criteria, or simply an increase in the occurrence of ASD (autism spectrum disorders). The United States Centers for Disease Control (CDC) estimate the prevalence of autism spectrum disorders to be about one in every 150 children. In 2005, the National Institute of Mental Health (NIMH) stated the 'best conservative estimate' as 1 in 1000. In 2006, NIMH estimated that the incidence was 2-6 in every 1000."

I consider myself a relatively risk-averse person, but I'll take those odds. I'm not saying autism isn't a serious problem, or that it isn't on the rise (though there's certainly some disagreement on that point). I'm also not saying that when Dr. M gets pregnant we won't worry about autism, or Down syndrome, or any of the other things that expecting parents worry about. I'm just saying I'm not going to let that prevent me from having children or dominate my feelings during the pregnancy.

Parallel Lines

Middle East Conflict Intensifies As Blah Blah Blah, Etc. Etc., The Onion, April 26, 2007.

Pro-Life Rally Blah Blah Blah, The Heuristic Squelch, September 2001.

See also this post.

Today is World Intellectual Property Day, or "World IP Day" for those of us in the know. I'm not really sure what the point of World IP Day is, but I came up with some ideas on how to celebrate it.


1. File a completely insane patent application.

2. Be extremely pedantic about trademarks and generics. For example, you might play a game of disc golf, drink something out of a vacuum-sealed insulated beverage container, cover any minor cuts with adhesive bandages, and blow your nose with tissues.

3. For once in your life, enjoy a song, movie or television show without trampling all over someone else's copyrights, for God's sake.

4. Attend the day's festivities at The George Washington University School of Law.

5. Get together with your friends and try to handicap the Supreme Court's forthcoming decision in KSR International Co. v. Teleflex, Inc..

6. Trade secrets with somebody.

7. Browse the Delphion Gallery of Obscure Patents, or read up on Unuseless Japanese Inventions.

8. Write some fanficton. Actually, don't do that. Please, for the good of mankind, stop writing fanfiction.

9. Take a quick trip to China and load up on counterfeit goods while you still can.

10. Pee.

Ye CAN Have Ye Pentacle


The Department of Veterans Affairs has settled the lawsuit over allowing the Wiccan pentacle on graves in national cemeteries (story here). The pentacle has been added to the list of available emblems of faith. It's 37, but it's not old.

Reviewing the list, it turns out that there are a bunch of different flavors of Christianity to choose from, but no separate emblem for Catholicism. Also, the atheist symbol is extraordinarily dumb.

And where's Scientology? It would be great to see a grave marker with an etching of Tom Cruise's face.

Papa Boris

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Boris Yeltsin has died. As one of my less explicable nicknames in high school was "Boris Yeltsin's other son," I feel compelled to comment.

Ronald Reagan and Pope John Paul II have each been credited with single-handedly defeating communism in Europe, and I'm wondering if Boris will get the same honor. He, after all, was the one who actually dissolved the Soviet Union. But we'll have to see. In any case I'm sure they'll say the same thing about Margaret Thatcher when she goes tets-up.

In the meantime, please enjoy these videos:

Boris Yeltsin dancing.

Boris Yeltsin and Bill Clinton get the giggles.

I can't seem to find the video of Boris Yeltsin giving the extremely angry, very probably drunk, speech in the last days of his presidency. So if anyone has that make with the linky-link in the newly registration-enabled comments.

While professional considerations counsel against offering any substantive commentary, I couldn't resist linking this story. The controversy surrounding the DVD release of WKRP in Cincinnati is an intersection of two things I hold near and dear to my heart: intellectual property law and sitcoms of the 1970s and 80s.

I'd also like to add that, as a child, I always thought Bailey was hotter than Jennifer (and I still do).

Boalt's Finest

What an idiot. Way to torpedo your career there, son. This is one instance in which I might support licensure refusal based on failing the moral character review.

Nuts & Boalts has a post about it here with a pantload of comments.

I just finished reading the opinions in Gonzales v. Carhart, the 5-4 decision in which the Supreme Court upheld the federal Partial Birth Abortion Ban Act (because nobody in the medical community calls it "partial birth abortion," this is the last time I'll be using that term). I have to say, while I'm still a big fan of Kennedy, he really uncorked a stinker with this one.

The case marks the first time that the Supreme Court has upheld a ban on a particular abortion procedure, and the first time the Court has not required a health exception to save an abortion ban's validity. Although Kennedy got there by interpreting the statute very narrowly (and thus pretending he wasn't overruling any previous decisions), these are still extremely important developments in the area of abortion jurisprudence.

What's striking about Kennedy's opinion is the role of the scientific evidence considered by Congress in enacting the ban and by the district courts in striking it down. The majority opinion begins with several pages of excruciating, gory (literally) detail about what exactly happens when a doctor performs either a "dilation and extraction" abortion or an "intact dilation and extraction" abortion. The difference between the procedures is that in "regular" D&E abortions the fetus is removed in several pieces, while in intact D&E the fetus is delivered intact and then destroyed before it comes all the way out. The ban applies only to the latter procedure.

Apart from the concreteness of Kennedy's gruesome (and largely unnecessary) description of the procedures at issue, the opinion is otherwise dripping with scientific uncertainty, and Kennedy bizarrely latches onto this uncertainty in justifying the ban. In what is likely the most inflammatory portion of the opinion, Kennedy essentially says that the law is necessary to protect women from their own bad choices, starting from this glorious premise:

"While we find no reliable data to measure the phenomenon, it seems unexceptionable to conclude some women come to regret their choice to abort the infant life they once created and sustained. [Citation to amicus brief.] Severe depression and loss of esteem can follow. See ibid."

Kennedy is therefore willing to accept what Ginsburg's dissent calls "an antiabortion shibboleth for which it concededly has no reliable evidence." Ginsburg, meanwhile, drops a brick of a footnote citing substantial evidence against the premise that Kennedy and the majority blindly accept.*

And while the majority accepts scientific conclusions it likes despite an acknowledged lack of evidentiary support, mere evidentiary disagreement is enough for the majority to reject a conclusion it doesn't like -- i.e., that a prohibition on intact D&E creates significant health risks. Again, Ginsburg goes on at length about the exhaustive findings of the three district courts, and the overwhelming evidence regarding the safety benefits of intact D&E. The majority doesn't cite anything comparable in support of the opposite position (apparently having used up its page limit by discussing the various ways in which the scissors are inserted into the fetus skull), but conclusorily states that "uncertainty" exists on the issue.

And in the face of this uncertainty, the majority disturbingly errs on the side of government regulation rather than the protection of constitutional rights. This is a subtle, yet significant erosion of reproductive rights, decreasing their stature in the pantheon of constitutional freedoms. Enabling the government to ban an abortion procedure that medical professionals have deemed necessary simply by pointing to a supposed "uncertainty" among the scientific community doesn't leave much protection for the underlying right. Even assuming such uncertainty does exist, Ginsburg pithily observes that "uncertainty [is] a factor that signals the presence of risk, not its absence." In other words, err on the side of protection.

The use of manufactured scientific uncertainty to advance an agenda has become a classic trick among conservatives. Opponents of environmental regulation pull this all the time, either by marching out the outlying scientists who don't believe in global warming or, more generally, allowing private companies to submit phony scientific studies via the Data Quality Act to create "uncertainty" and tie the hands of environmental regulators.

Kennedy wasn't fooled in Massachusetts v. EPA, a case which also relied heavily on scientific evidence regarding a controversial issue, but he seems all too willing to go along with the charlatans in this case. Given the opening narratives of the majority opinion, Kennedy seems to have been guided more by his aversion to D&E than any concern with the science of women's health. His opinion is disappointing on a number of levels.

* For some energetic discussion of the paternalism of Kennedy's approach, see Dahlia Lithwick's article here, and Marty Lederman's post here.

Juliet is the Snape of Lost


The Supreme Court justified its existence in the eyes of many Americans today by deciding an abortion case. But I'm not going to write about that. Instead, I'm going to write about Harry Potter and Lost.

I really hate the Juliet character on Lost. At first, I thought it was just because of her insufferable and ever-present pucker-mouthed smugface, but then I realized that what really bothered me was how cheaply her character is constructed. As often happens when writers try to create multi-layered characters, the folks at Lost have mistaken inconsistency for complexity. This made me think of another irritating example of this phenomenon: Severus Snape of the Harry Potter books. As I thought about this during the BART ride to work this morning, I came to a whole 'nother set of conlusions.

(1) Snape and Juliet aren't internally inconsistent;
(2) They're important to their respective fictional universes; and
(3) As characters, they're still boring.

Let's start with Snape. His gimmick, ever since the first Harry Potter book, has been "I'm evil, I'm evil, I'm evil, just kidding I'm good." This was fine, such as it was, and served the plotlines of each book. By the end of Book Six most readers had resolved themselves to the fact that Snape was, at base, a jerky good guy. He was mean and unpleasant, but when it came to brass tacks he was on the side of goodness and righteousness. This is why Snape's sudden betrayal at the end of Book Six comes across as not only jarring but also cheap. We're meant to believe that no, really, Snape was evil all along, he was just waiting for Voldemort to come back so he could throw off the sheep's clothing once and for all. This diminished much of what went on with Snape in previous books and just seemed like a really lame way to create some extra drama leading into Book Seven.

Similarly, Juliet's shtick since her first appearance on Lost has been the maddening ambiguity as to whether she's a fully committed Other or whether she really wants to help the castaways. Over the course of the third season this has lent itself to a number of twists and turns, enhanced by an exploration of Juliet's past that seems to indicate a deep animosity toward the Benninites, and yet based on her actions on the Island she's a willing soldier in the Other Army. At last, in the most recent episode, we learn that she really does hate Ben (her attempt to get Jack to kill Ben wasn't a trap after all -- or was it?), she really is being held on the Island against her will, and she really does want to get off the Island. After fifty minutes dedicated entirely to establishing this and ingratiating Juliet to the castaways, we then learn that she really is still in league with the Others and really is working with Ben to plot their demise. Again, a completely inconsistent twist that completely tears down the preceding well-constructed episode, and very cheaply sets up some extra drama for the remaining five episodes of the season.

Before I address this issue of whether Snape and Juliet's respective betrayals are authentic, I'll explain why it doesn't matter. And before I do that I'll explain why these betrayals, even if they are authentic, aren't indications of character inconsistency.

Put simply, Snape is neither good nor evil. He's motivated only by raw opportunism -- he doesn't have any emotional allegiance to a particular team, he just wants to be on the one that's winning (this is reminiscent of Madonna's trailer-bait line from Dick Tracy: "[I'm on t]he same side I'm always on: my side."). And because ambition is the hallmark of the Slytherin House, this makes sense. Likewise, while Juliet likely has no loyalty to the Others, she certainly has no loyalty to the castaways. Rather, she has her own opportunistic motivations -- either getting off the Island, or simply surviving. She's going to align herself with whichever side will get her to either place. So, either Ben has figured out another way off the Island (maybe Michael's back with the boat?) and has promised Juliet her freedom if she helps him this one last time (no, really, baby, just one last time), or she realizes that she has a far better chance of seeing her hair turn grey if she sticks with the side with the higher firepower.

In the end, however, it doesn't matter what Snape or Juliet do. As I said, their characters aren't interesting in and of themselves. What makes them interesting is their effects on the other characters and the broader themes of the stories. Harry's fundamental distrust of Snape has dramatic effects on his interactions with the other characters -- he inevitably gets into arguments with Ron, Hermione and Hagrid about whether Snape can be trusted. More importantly, Dumbledore's unflagging faith in Snape affects Harry's faith in Dumbledore, a plot element that becomes all the more significant as Dumbledore's own invincibility begins to break down in the later books.

Likewise, the tedious agony of "Can we trust her? I think we can trust her. No, we can't trust her." is a recurring theme among the principal characters in Lost, and reveals important things about their relationships. The most dramatic example of this is when Jack overrides Sayid and announces that Juliet is under his protection. I've also predicted that the seemingly pointless B-plot from a recent episode in which Hurley fools Sawyer into becoming the leader of the castaways in Jack's absence (seemingly pointless because Jack returns the very next episode) was a set-up for Sawyer wresting the leadership position from Jack, whose ability to lead has been compromised by his misplaced faith in Juliet (or perhaps having been fully brainwashed -- why was he still asleep when Kate found him?). The scene from last week's episode where Sawyer and Sayid ambush Juliet in the jungle lends support to this hypothesis.

So, getting to the question of whether Snape and Juliet really are in league with the dark side, it doesn't really matter. Certainly, Juliet could be secretly sabotaging whatever Ben has planned for the immediate future, or could switch sides at the last minute and save the castaways. Likewise, Vegas odds are that Snape's apparent betrayal of Dumbledore was actually part of a broader plan of goodness rather than evilness, and that what Dumbledore was saying right before he died was "Please kill me" instead of "Please don't kill me." But the fundamental ambiguity in these characters doesn't leave room for fully committed allegiance. In other words, their functions in their stories -- creating conflict and revealing the power structures among the other characters -- would be vitiated if these ambiguities were resolved. In the case of Snape, he could be made to pick a horse without much trouble because the series is ending. In the case of Juliet, however, she would serve no purpose other than being an extremely annoying character if she committed to good or evil without immediately leaving the Island or dying.

And because despite my realization that Juliet actually does serve some purpose, her pouty face still drives me crazy, so here's hoping the season finale includes one of those events.

As a studier of the Internet, I'd like to point out that it didn't take very long at all after our nation's latest senseless shooting rampage before bloggers started spinning the story for their own political proclivities, criticizing bloggers for doing that, blogging about whether bloggers should criticize bloggers for doing that, and blogging about bloggers who blog about whether bloggers should criticize bloggers for doing that.

What a bleak and miserable future this is.

The California cities of Huntington Beach and Santa Cruz are enmeshed in a legal dispute over the use of the label "Surf City USA" (story here). Both cities lay claim to the title, but Huntington Beach has actually secured exclusive trademark rights to the name from the USPTO. Santa Cruz, meanwhile, has just filed a lawsuit stating that these exclusive rights do not operate outside the Huntington Beach area.

This certainly adds an additional layer to the whole SoCal NoCal rivalry, but it's also a dispute that's near and dear to my heart. In addition to being a big Jan and Dean fan (or at least I was at one time), I lived the first five years of my life in Huntington Beach but have since developed a strong affinity for Santa Cruz, what with its fried candy bars and hippie ways.

In fact, I daresay that my fondest memories of Huntington Beach -- living across the street from oil wells somehow, the old man nextdoor with his little bow-wearing dog, the bakery down the street that gave me free cookies, my turtle-shaped sandbox, the unknowable mysteries of "around the corner," where I was forbidden to travel on my big wheel -- are being steadily overshadowed by fonder, more recent memories of Santa Cruz.

Here's hoping the case isn't in the court where I work (in which case I'll take down this post).



A law professor at Georgetown has banned laptops from his classroom, and here's why.

Much of Professor Cole's complaints regarding students dicking around on the Internet during class come across as somewhat crotchety, and don't, in my opinion, form a legitimate basis for banning laptops. Students will pay attention or they won't, and those who are rating kittens when they should be larning themselves some Commerce Clause knowingly run the risks appurtenant thereto.

That being said, Cole's other, less developed reason, is something I fully agree with:

"Note-taking on a laptop encourages verbatim transcription. The note-taker tends to go into stenographic mode and no longer processes information in a way that is conducive to the give and take of classroom discussion. Because taking notes the old-fashioned way, by hand, is so much slower, one actually has to listen, think and prioritize the most important themes."

At some point during my last year of law school I stopped bringing my laptop to school, mainly because it was heavy and I was sick of carrying it around. I discovered that my handwritten notes were significantly more helpful than my previous stenographer-style typed notes, likely for the reasons that Cole states. Handwriting forces you to digest the information as you take it down, so you're engaging the material more critically as it's presented and recording it in a way that will be more useful later on. It's something I'd recommend at least trying while in law school. Incidentally, I also observed a quantum leap in my grades during my 3L year after I switched to spiral notebooks.

But, again, this choice should be left to the student, not dictated by the professor. Professors might extoll the virtues of handwritten notes to their students and encourage them to ditch the laptops, but it's not something that should be mandated.

Yesterday the Supreme Court handed down its decision in Massachusetts v. EPA, involving a set of opinions that I, for one, found very entertaining. The Court split 5-4 along liberal/conservative lines with Kennedy joining the liberals.

At issue was an attempt my Massachusetts (and a bunch of other states, some cities, and some private entities) to force the EPA to regulate carbon dioxide emissions from automobiles. The EPA had refused to do so based, in part, on its own interpretation of the Clean Air Act. According to the EPA's construction of the statute, the EPA lacked the power to regulate automotive carbon dioxide emissions. In other words, the EPA willingly tied its own hands to avoid having to decide whether to regulate automotive emissions.

The Court issued two key rulings. First, the Court held that Massachusetts had standing to bring this suit. Standing is a somewhat wacky constitutional doctrine that requires a plaintiff to have suffered an injury, caused by the defendant, that will be redressed by the relief sought, before a plaintiff can bring suit in federal court. I say "somewhat wacky" because the doctrine is profoundly unprincipled and very hard to pin down, the only discernible trend in recent years being a tendency on the part of the Court to restrict, rather than expand, the types of injury and causation that satisfy the standing requirement. The Court arguably expanded standing in this case by loosening the requirements when a state is a plaintiff (more on that below).

The second holding was that, contrary to the EPA's interpretation, the agency does have jurisdiction over automotive carbon dioxide emissions under the CAA. The Court did not hold that the EPA is required to regulate these emissions, but simply held that if the EPA decides not to they need a better reason than their erroneous interpretation of the statute. Commentators are saying that the consequences of this holding will be mainly political. Specifically, the EPA and the Bush Administration now have to face the political consequences of action (or inaction) regarding automotive emissions rather than claiming that the EPA has no power to engage the issue in the first place.

Stevens wrote the majority opinion, and Roberts and Scalia tag-teamed on the dissent side. Roberts took standing and Scalia took the merits.

That's the main gist of things. Now let's take a look at some of the law-geeky truffles buried in those tangled roots.

Know Your Current Events

The Court's conclusion as to standing was based in large part on its acknowledgment that anthropogenic global warming is an actual thing that actually exists. The majority opinion discusses the scientific evidence and opinions at length and in great detail. In fact, the "injury" that gave rise to Massachusetts' standing was the loss of coastal land due to global warming. Roberts admits "[g]lobal warming may be a 'crisis,' even 'the most pressing environmental problem of our time,'" but says the issue is adequately addressed by the political branches rather than the courts. Scalia says that "[t]he Court's alarm over global warming may or may not be justified, but it ought not distort the outcome of this litigation." Are the justices guided by their political views? Surely you jest!

Courting Kennedy

As this was a 5-4 decision, the two blocks on the Court were likely fighting fiercely over Kennedy's vote. Stevens' discussion of general standing princples is drawn almost entirely from a previous Kennedy concurrence, and he mentions Kennedy by name at one point. A Kennedy concurrence also appears embedded in one of Roberts' citations. Scalia, as usual, doesn't play this game, hoping to attract more flies with horsecrap than with honey.

Old-Timey Talk About States as Sovereign Nations

When discussing the "special solicitude" that states are entitled to in determining whether they have standing, Stevens reminisced about his childhood days in the eighteenth century, when the country was still cobbling itself together from a group of disjointed nation-states:

"When a State enters the Union, it surrenders certain sovereign prerogatives. Massachusetts cannot invade Rhode Island to force reductions in greenhouse gas emissions, it cannot negotiate an emissions treaty with China or India, and in some circumstances the exercise of its police powers to reduce in-state motor-vehicle emissions might well be pre-empted."

As I've hinted at before, a state as a civil plaintiff in front of the Supreme Court is a recipe for maximum excitement. Unfortunately this case didn't involve any decrees from the English monarchy, but I'll take what I can get.

Hot Buttered Statutory Interpretation

Scalia is very good a statutory interpretation, or at least at presenting his interpretation in a convincing manner. He really gets into it in his dissent, including a lengthy discussion of use of the word "including." He also makes the classic Scalia move of citing the Second Edition of Webster's New International Dictionary, which he prefers for some reason. Though his analysis really takes a dive when he starts trying to distinguish between "air" and "atmosphere."

Kneeling at the Altar of Hart & Wechsler

Stevens and Roberts each cite Hart & Wechsler's The Federal Courts and the Federal System, the authoritative and enormous textbook that serves as the Bible of all Fed Courts nerdery. Stevens has this to say:

"THE CHIEF JUSTICE accuses the Court of misreading Georgia v. Tennessee Copper Co., 206 U. S. 230 (1907), see post, at 3–4 (dissenting opinion), and "devis[ing] a new doctrine of state standing," id., at 15. But no less an authority than Hart & Wechsler's The Federal Courts and the Federal System understands Tennessee Copper as a standing decision."

Roberts shoots back:

"The Court seems to think we do not recognize that Tennessee Copper is a case about parens patriae standing, ante, at 17, n. 17, but we have no doubt about that. The point is that nothing in our cases (or Hart & Wechsler) suggests that the prudential requirements for parens patriae standing [citation] can somehow substitute for, or alter the content of, the 'irreducible constitutional minimum' requirements of injury in fact, causation, and redressability under Article III."

Disconnect Between the Court and Real People

People accuse Supreme Court Justices of being out of touch with the common man, and they're absolutely right. In poo-pooing the seriousness of Massachusetts' purported injury, Roberts says: "Schoolchildren know that a kingdom might be lost 'all for the want of a horseshoe nail,' but 'likely' redressability is a different matter." Neither Dr. M nor I (nor, as it turns out, my co-clerk) have any familiarity with this quote. Some quick googling revealed it to come from this totally freaking obscure nursery rhyme:

For want of a nail the shoe was lost.
For want of a shoe the horse was lost.
For want of a horse the rider was lost.
For want of a rider the battle was lost.
For want of a battle the kingdom was lost.
And all for the want of a horseshoe nail.

I'd venture to say that most schoolchildren do not, in fact, know this, unless they, like Chief Justice John G. Roberts, Jr., attended the Little Lord Fauntleroy School for the Weak.

Scalia also uses the phrase "grasp the nettles" at one point, though we can't be too hard on him given his farts and Frisbees remark.

The Possessive S Controversy

As an update on the controversy discussed here, Stevens uses "Massachusetts'," Roberts uses "Massachusetts's," and Scalia doesn't have occasion to use either.

I just finished reading the opinions in Massachusetts v. EPA, today's Supreme Court decision holding that the EPA has jurisdiction to regulate automobile carbon dioxide emissions (and that the State of Massachusetts has standing to sue the EPA to force it to do so). I'll post a full, non-childish analysis tomorrow, but for now I just want to make it known that today, April 2, 2007, marks the first time in Our Nation's history that the word "flatulence" has appeared in a Supreme Court opinion (based on quick Westlaw search).

Behold! Footnote 2 of Scalia's dissent!

"Not only is EPA's interpretation reasonable, it is far more plausible than the Court's alternative. As the Court correctly points out, 'all airborne compounds of whatever stripe,' ante, at 26, would qualify as 'physical, chemical, ... substance[s] or matter which [are] emitted into or otherwise ente[r] the ambient air,' 42 U.S.C. § 7602(g). It follows that everything airborne, from Frisbees to flatulence, qualifies as an 'air pollutant.' This reading of the statute defies common sense."

Additional props to Justice Scalia for respecting the trademark rights of Wham-O Inc. by capitalizing the word "Frisbees."

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