Archive | March 30, 2010

“Population of the 24 Urban Places [in the U.S]: 1790″

From the Census site:

Rank Place Population
1 New York city, NY 33,131
2 Philadelphia city, PA 28,522
3 Boston town, MA 18,320
4 Charleston city, SC 16,359
5 Baltimore town, MD 13,503
6 Northern Liberties township, PA 9,913
7 Salem town, MA 7,921
8 Newport town, RI 6,716
9 Providence town, RI 6,380
10t Marblehead town, MA 5,661
10t Southwark district, PA 5,661
12 Gloucester town, MA 5,317
13 Newburyport town, MA 4,837
14 Portsmouth town, NH 4,720
15 Sherburne town (Nantucket), MA 4,620
16 Middleborough town, MA 4,526
17 New Haven city, CT 4,487
18 Richmond city, VA 3,761
19 Albany city, NY 3,498
20 Norfolk borough, VA 2,959
21 Petersburg town, VA 2,828
22 Alexandria town, VA 2,748
23 Hartford city, CT 2,683
24 Hudson city, NY 2,584


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Unexpected Flight Delay => Hotel Stay => Criminal Prosecution for Gun Possession

An unfortunate story, detailed in Revell v. Port Authority (3d Cir. 2010): Gregg C. Revell was flying from Salt Lake City to Allentown, Pennsylvania, via Minneapolis and Newark. He had an unloaded gun legally checked in his luggage, which was supposed to meet him at Allentown.

Supposed to. In fact, the flight to Newark was late, so Revell missed his connection. He booked himself on the next flight, but the airline changed those plans. He was supposed to get on a bus, but his luggage didn’t get on the bus with him. He found the luggage, but the bus had left, so he had to stay overnight at the hotel, with his luggage.

Aha! That’s where the crime came in. The Firearms Owners’ Protection Act protected Revell on the plane, and would have protected him on the bus. But the moment the luggage came into his hands or otherwise became “readily accessible” to him outside a car — here, when he got the luggage to go to the hotel, but it would have also happened if he had gotten the luggage to put it into the trunk of a rental car — he violated New Jersey law, which requires a permit to possess a handgun (and which bans the hollow-point ammunition that Revell also had in a separate locked container in his luggage). Revell was arrested when he checked in with the luggage at Newark Airport, and said (as he was supposed to) that he had an unloaded gun in a locked case in his luggage; he then spent four days in jail until he was released on bail. Eventually the New Jersey prosecutor dropped the charges against him, but Revell didn’t get the gun and his other property back until almost three years later.

Revell sued, and lost; the [...]

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“We have to pass the bill so that you can find out what is in it” (continued)

I mean this in less snarky way than the title of this post suggests, but I continue to be surprised by some of what worked its way into the health care reform bill.

Today the Supreme Court held 7-2 in an opinion by Justice Stevens that 31 U.S.C. 3730(e)(4)(A), a provision of the False Claims Act that bars qui tam actions that are based upon the public disclosure of allegations of fraud against the government in (among other things) “a congressional, administrative, or [GAO] report, hearing, audit, or investigation,” includes state and local administrative hearings, audits, or investigations, and not just federal ones.   But tucked away in a footnote is notice that the holding of the case (Graham County Soil & Water Conservation District v. United States ex rel Wilson, 08-304), will have limited application going forward:

On March 23, 2010, the President signed into law the Patient Protection and Affordable Care Act, Pub. L. 111–148, 124 Stat. 119.  Section 10104(j)(2) of this legislation replaces the prior version of 31 U.S.C. §3730(e)(4) with new language.  The legislation makes no mention of retroactivity, which would be necessary for its application to pending cases given that it eliminates petitioners’ claimed defense to a qui tam suit. See Hughes Aircraft Co. v. United States ex rel. Schumer, 520 U. S. 939, 948 (1997).

The health care reform law changes the relevant text to provide for dismissal of a qui tam action based on a public disclosures “in a congressional, [GAO], or other Federal report, hearing, audit, or investigation.”  Thus, it essentially overrules today’s decision.  The amendment also eliminates the old language, under which a court would not have jurisdiction over a case based on a public disclosure, to simply state that a court shall dismiss an action, unless [...]

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Duke Reverses Exclusion of Pro-Life Talk from the Duke Women’s Center

Here’s the letter from Women’s Center Director Ada Gregory:

Dear Ms. __:

I wanted to write concerning the recent problem you experienced after reserving space at the Women’s Center for a Duke Students for Life event during pro-life awareness week on campus. First, I am so sorry that your event was cancelled due to actions by Women’s Center staff. Mistakes were certainly made that should not have occurred. I have taken steps to ensure that such an incident will not happen again.

The Women’s Center is indeed intended to be a place that supports the agency and choices of all women, so I hope that you will continue to use the Women’s Center facilities as well as services and the programs that the Women’s Center sponsors on campus.

The Foundation for Individual Rights in Education reports further; for my earlier post on this controversy, see here. Very glad to see that FIRE has prevailed on this,

Very glad to hear about it — congratulations and thanks to FIRE for its work on this. [...]

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“Big Bang”

People asked about the “Big Bang” example, so here’s the source. It’s of course only an extreme case, used only to amusingly show how far some people are willing to go — I don’t want to claim that it’s at all a common demand (unlike the demands to rename “handicapped,” “American Indian,” and the like):

An astronomy magazine is sponsoring a contest to rename the “Big Bang” theory of how the universe began. Those pushing the name change say the current name is misleading and perhaps sexist. [Note that only some of the objectors are making the "sexist" claim; others say that the metaphor leads to inaccurate ways of thinking about the event. -EV] …

HEAPS: Since the 1950s, the term Big Bang has also taken on a sexual connotation, and some say changing it could make the mostly male world of astronomy a little more friendly for females.

MEG URRY, Space Telescope Science Institute: A lot of the style is very macho, and that can be offputting to young women, and ‘big bang’ is just another- another little grain of sand in that big sandbox.

UPDATE: Whoops, forgot to include the citation: It’s from CNN, June 14, 1993, transcript #417-5; I personally checked it on Lexis. [...]

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Soccerphiles & Soccerphobes, Lay Down Your Arms!

I know that the world (at least the VC world) is sharply divided into opposing camps on all matters soccer-related, but we should put aside our differences and gather together at our favorite watering-holes tomorrow (Wednesday — 230 PM EDT, rebroadcast at 8 PM EDT on Fox Soccer Channel) for a match that should be a real beauty (and a chance for the ‘phobes to see what it is that gets real soccer fans so passionate about the game). Arsenal FC v. FCB Barcelona, quarter-finals of the European Champions League.

The ECL is far and away the most prestigious (and the best, and the most-watched) club soccer tournament of all (eclipsed only by the battle of the national teams in the World Cup). It’s a season-long tournament, involving the teams that finished at the top of their respective national leagues the previous year (so, e.g., it starts out with the top four teams from the English Premier League in 2008-09 [Chelsea, Manchester United, Arsenal, Liverpool], the top three from Spain [Barcelona, Real Madrid, Sevilla], France, Germany, etc.) leading up to a one-match Final at the end of May (this year in Madrid) that is always the most-watched soccer match of the year, world-wide. The level of play is generally astonishingly high in all matches – but the Arsenal-Barcelona pairing in this year’s quarter-finals should be particularly delicious. By common consensus, of all the thousands upon thousands of professional soccer teams out there on this earth, these are the two that play the most beautiful soccer of all. Beauty, of course, is in the eye of the beholder — but most neutral fans, whomever they may be rooting for in the competition, would have to agree that no teams can match these two in sheer elegance and grace when they’re on [...]

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Sixth Circuit 0-3 in Habeas Cases This Term

This morning, the Supreme Court unanimously reversed the U.S. Court of Appeals for the Sixth Circuit in Berghuis v. Smith.  The Court held, in an opinion by Justice Ginsburg, that the Sixth Circuit had erroneously concluded that the Michigan Supreme Court’s rejection of criminal defendant Diapolis Smith’s Sixth Amendment claim involved an unreasonable application of clearly established federal law, as is required to grant a habeas petition under the Anti-Terrorism and Effective Death Penalty Act (AEDPA).  Smith had argued that jury selection in his trial had violated his Sixth Amendment right to an impartial jury drawn from a representative cross-section of the community.

Of note, this is the third reversal of a Sixth Circuit decision granting a crminal defendant’s habeas petition this term.  The first two were Smith v. Spisak and Bobby v. Van Hook.  Two more Sixth Circuit habeas cases remain, Renico v. Lett and Berghuis v. Thompkins.  As I noted here, in all five cases, the Sixth Circuit granted the habeas petition.  Will the Supreme Court reverse in all five?  We’ll see.  Three down, two to go. [...]

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Gene Patent(s?) Invalidated:

When I teach the patent law material in my Introductory Intellectual Property class, we discuss the (very fundamental) principle that “naturally-occurring” things are not patentable subject matter – that patents only cover creations springing from the human mind. “But wait a second,” someone often asks, “what about all those ‘gene patents’ I read about in the newspaper? How can someone have a patent on a human gene if naturally-occurring things aren’t patentable?”

It’s a very good question. The answer, in a nutshell, is that the PTO, and the courts, have developed a doctrine under which the “purified” and “isolated” form of the gene is deemed to be a patentable composition of matter (because it does not, in fact, occur in nature in that form), as opposed to the gene as it actually sits on your chromosome. This allows all of us, thankfully, to do things like beget children without obtaining the authorization of the patent holder (even though the process of begetting children constitutes a “use” of the gene in question . . .).

I’ve always thought it dubious law and even-more-dubious policy (though I’m no expert in the matter), and a federal judge, for the first time, seems to agree. In a very important decision (though it will undoubtedly be subject to review, and quite possibly may be reversed), Judge Sweet (SD NY) invalidated the patent held by Myriad Genetics, Inc. on a gene thought to be associated with breast and ovarian cancer. [The full text of the opinion is here] The language is strong, and calls into question pretty much all 2000 or so of the patents issued in recent years to parts of the human genome (and the many other animal/plant gene patents as well). Noting that many people regard the notion of patenting the [...]

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The Tournament of Novels:

First Things is having a “Tournament of Novels.”  Vote here.  I just learned about it and so missed voting in the first round but just cast my vote in the second round.  Some of the match-ups were very clever, such as Lord of the Rings versus Atlas Shrugged in the first round. (HT: Mere Comments).

Yikes–I’m even more behind than I thought!  A Commenter tells me that they’ve been doing a round a day and are already up to the fourth round. [...]

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Self-hating Wolverine

Chapman Law School professor Hugh Hewitt runs an excellent blog, with plenty of stimulating commentary, even for people who disagree with Hugh’s viewpoint. Some people, however, were put off by Hugh’s adamant defense of the Supreme Court nomination of Harriet Miers. Discerning readers have learned to take Hugh’s prediction of Republican election wins with many grains of salt. But now I feel compelled to speak out at something that has long been a problem on Hugh’s blog,  and which just went far over the line.

Although Hugh is currently a Californian, he grew up in Ohio, and so he uses his blog and his national radio program to promote his endless enthusiasm for Ohio sports teams, predicting (not always accurately) victories by the Cleveland Browns and so on. As an Ohio man, Hugh also enjoys taunting Michigan, which is one of the things that Ohioans have long done to keep themselves amused. Fine, if that’s what makes him happy. But Hugh is also a member of the University of Michigan Law School class of 1983. Today, he celebrated the victory of the Miami of Ohio hockey team over the University of Michigan, in the final game of the NCAA regional tournament. If he wants to rejoice when the University of Toledo defeats Eastern Michigan University, that’s his privilege. But to root against–and to rejoice in the defeat of–one’s own alma mater seems to me very wrong.

There must be some conservative principle about being loyal to the institution that provided you with a fine education and helped make your professional success possible. I am sure that Edmund Burke would never have gloated over the defeat of the Trinity College football team or the Middle Temple hockey team, if those great institutions had football and hockey teams. [...]

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