Monday, September 26, 2016

Hillary Ruled the Show //Josh Marshall //Talking Points Memo

Would you want to work for him?  If not, why would you want him to be President?
If he goes into rants in a debate with Hillary, how would he do with Angela Merkel?  Vladimir Putin?  Xi Jinping? - gwc
Hillary Ruled the Show
by Josh Marshall //Talking Points Memo
Clinton clearly went into this debate not looking for one or two big "Have you no decency" moments but rather looking to hit him with a rat-tat-tat series of taunts and jabs to see if she could get him to lose his cool and throw him off his game. It ended up happening a lot more quickly than I expected. No more than fifteen minutes in he was getting visibly angry. And he stayed that way for the next hour plus.
From maybe a half hour into the debate Clinton had almost entirely seized the initiative. She was attacking while he responded, sometimes angrily, sometimes with new attacks and very often by doubling down on demonstrable falsehoods he's been pilloried for for months. At various moments he shuffled in and out of parts of his stump speech. But through most of the exchange he constantly interrupted Clinton, talked over her, denied claims she made which are easily validated. In terms of body language and style it was thermonuclear Rick Lazio.

NJ Justices Reject 'Feel of the Case' Doctrine, Overturn 2011 Ruling Reducing Damage Award | New Jersey Law Journal

In Cuevas v. Wentworth the Supreme Court of New Jersey has overturned its ill-considered ruling in He v. Miller which embraced a vague "feel of the case standard" for judges considering motions to reduce a jury verdict.  The rule, which harked back to Justice Oliver Wendell Holmes view that the jury "aid" the conscience of the court, and that as trial experience grows judges need juries less and less. -gwc

NJ Justices Reject 'Feel of the Case' Doctrine, Overturn 2011 Ruling Reducing Damage Award | New 
by Carmen Natale

In a unanimous ruling, the court repudiated its five-year-old ruling that said judges could rely on their experiences as attorneys in private practice and their years on the bench to determine whether verdicts are unusually or unjustly high and need to be trimmed.
"The pre-eminent role that the jury plays in our justice system call for judicial restraint in exercising the power to reduce a jury's damages award," wrote Justice Barry Albin in Cuevas v. Wentworth Group. "A court should not grant a remittitur except in the unusual case in which the jury's award is so patently excessive, so pervaded by a sense of wrongness, that it shocks the judicial conscience."
The ruling in Cuevas essentially overturns the court's 2011 3-2 ruling in He v. Miller, in which the majority ruled that a judge was permitted to rely on his "feel for the case"—based on his professional experience—to slash a $1 million verdict to $200,000 in a medical malpractice case.
Albin and Chief Justice Stuart Rabner dissented in He. The members of the majority, Justices Helen Hoens and Roberto Rivera-Soto and Appellate Division Judge Dorothea Wefing, temporarily assigned, no longer sit on the court.
"[W]e now conclude that such an approach is not sound in principle or workable in practice," Albin said, referring to the ruling in He,
"A judge's personal knowledge of verdicts from experiences as a private practitioner or jurist is information outside the record and is not subject to the typical scrutiny evidence receives in the adversarial process," he said. "A judge therefore should not rely on personal knowledge of the verdicts."
A trial judge should also not do comparative case analysis in deciding motions for remittitur, Albin said. He said jury verdicts in specific cases differ and are not susceptible to comparison.
In Cuevas, the court upheld a verdict in which two Hispanic brothers were awarded hundreds of thousands of dollars each in damages after alleging that they faced discrimination in the workplace because of their ethnicity, even though they did not present any expert testimony attesting to the severity of their emotional distress.
At their trial, they were the only ones to testify about their emotional distress. Ramon Cuevas told the jury he was "despondent" and "depressed." Jeffrey Cuevas also testified that he was depressed, court documents said.
A Passaic County jury awarded Ramon Cuevas and Jeffrey Cuevas $800,000 and $600,000, respectively. Superior Court Judge Esther Suarez declined to apply her personal experiences as a jurist and attorney and denied a defense motion for a judgment notwithstanding the verdict, saying it "did not shock the judicial conscience."...

Saturday, September 24, 2016

Hillary Clinton for President - The New York Times

Hillary Clinton for President - The New York Times
by the Editorial Board
In any normal election year, we’d compare the two presidential candidates side by side on the issues. But this is not a normal election year. A comparison like that would be an empty exercise in a race where one candidate — our choice, Hillary Clinton — has a record of service and a raft of pragmatic ideas, and the other, Donald Trump, discloses nothing concrete about himself or his plans while promising the moon and offering the stars on layaway. (We will explain in a subsequent editorial why we believe Mr. Trump to be the worst nominee put forward by a major party in modern American history.)
But this endorsement would also be an empty exercise if it merely affirmed the choice of Clinton supporters. We’re aiming instead to persuade those of you who are hesitating to vote for Mrs. Clinton — because you are reluctant to vote for a Democrat, or for another Clinton, or for a candidate who might appear, on the surface, not to offer change from an establishment that seems indifferent and a political system that seems broken.***
keep reading

Wednesday, September 21, 2016

It's Steve Bannon's World, We Just Live In It // Josh Marshall

Very interesting take on Trump campaign CEO Steve Bannon of Breitbart.  Turns out he has been the force behind "Clinton Cash" - an assault on the Clinton Foundation.

Though no impropriety has been found the argument for "appearance of impropriety" is strong because the foundation dealt with the governments of nation states while Hillary Clinton was the highest official in the U.S. State Department. - gwc
It's Steve Bannon's World, We Just Live In It
One of the many fascinating things to come out of my chat with Josh Green (for Episode 3 of the podcast) was the still largely unappreciated role of Steve Bannon looming over the 2016 race.
Obviously, being Trump's campaign chairman in itself is a very big deal. Kellyanne Conway is the nominal campaign manager. But Bannon seems to be the top executive in the operation. And to the surprise of many (including myself), rather than signaling Trump going finally totally off he rails, Bannon is the first of Trump's three campaign chiefs to bring some level of discipline to the operation. Not a high bar. But it's been real and important. So that's point one.
Bannon's also the guy running the Breitbart media empire which, all the merited derision and lack of integrity aside, has had a massive impact on Republican base politics. This is one reason TPM has always focused so much on the far right and often what looks like the looney right. It is looney. But elites tend to think it doesn't merit serious attention just because it's crazy. That's a big, big mistake, both journalistically and politically.
But then there's a part I'd forgotten about entirely. Bannon is the guy behind the 'Government Accountability Institute', which funded Peter Schweizer's Clinton Cash, the exposé which was the origin point of a huge amount of the coverage of the Clinton Foundation, Clinton speeches and all the rest.

Monday, September 19, 2016

Are The Fascist Labels Really Too Much? // Talking Points Memo

I know that cops are skeptics by nature.  So, by the way are public defenders.  We were skeptical about the cops.
But is the Fraternal Order of Police - which endorsed Trump - really  sure they want to stick with this guy.
Are The Fascist Labels Really Too Much?
by JoshMarshall //Talking Points Memo

Words count. Listen to these words - trojan horse, cancer from within, secret constant plotting - and see if they don't sound like speeches from the 1930s or dark words spoken before leaders do horrible things.
This is Trump from this morning on Fox and Friends.
"They're here. And I've been saying. This is going to be like the Trojan horse. We're letting tens of thousands of people flow into this country and they are bringing in, in many cases, this is cancer from within. This is something that's going to be so tough and you know they stay together, so nobody really knows who it is, what's happening. They are plotting. They keep plotting, and this has been going on for so long and everybody knows it and the good law enforcement, we have such great people. That's the best thing we have going is that we have great law enforcement. They know about it."

This is how fascism comes to America - The Washington Post

In the video below  Donald Trump reads a poem about a snake.  Someone who invited a snake into her home - and died for the unwarranted kindness.  That is his metaphor for how we should view immigrants.  Yesterday's bombing by an Afghanistan born naturalized American citizen will surely be taken by him and his supporters as the proof of his point.

The essence of invidious discrimination is to attribute the vices of one person to their entire ethnic group, religion, etc.  The rational response is to recognize that some people represent greater danger than others - but not to attribute their criminality to an ethnic group or religion.
We have become accustomed to senior conservatives like former defense secretary Robert Gates,  Senator Susan Collins, Mitt Romney and other leading Republicans deploring Trump without doing the responsible thing: endorse Hillary Clinton.
This is how fascism comes to America - The Washington Post

Robert Kagan is a senior fellow at the Brookings Institution and a contributing columnist for The Post.
The Republican Party’s attempt to treat Donald Trump as a normal political candidate would be laughable were it not so perilous to the republic. If only he would mouth the party’s “conservative” principles, all would be well.
But of course the entire Trump phenomenon has nothing to do with policy or ideology. It has nothing to do with the Republican Party, either, except in its historic role as incubator of this singular threat to our democracy. Trump has transcended the party that produced him. His growing army of supporters no longer cares about the party. Because it did not immediately and fully embrace Trump, because a dwindling number of its political and intellectual leaders still resist him, the party is regarded with suspicion and even hostility by his followers. Their allegiance is to him and him alone.
And the source of allegiance? We’re supposed to believe that Trump’s support stems from economic stagnation or dislocation. Maybe some of it does. But what Trump offers his followers are not economic remedies — his proposals change daily. What he offers is an attitude, an aura of crude strength and machismo, a boasting disrespect for the niceties of the democratic culture that he claims, and his followers believe, has produced national weakness and incompetence. His incoherent and contradictory utterances have one thing in common: They provoke and play on feelings of resentment and disdain, intermingled with bits of fear, hatred and anger. His public discourse consists of attacking or ridiculing a wide range of “others” — Muslims, Hispanics, women, Chinese, Mexicans, Europeans, Arabs, immigrants, refugees — whom he depicts either as threats or as objects of derision. His program, such as it is, consists chiefly of promises to get tough with foreigners and people of nonwhite complexion. He will deport them, bar them, get them to knuckle under, make them pay up or make them shut up.
<iframe width='480' height='290' scrolling='no' src='//' frameborder='0' webkitallowfullscreen mozallowfullscreen allowfullscreen></iframe>Trump reads snake poem to discuss immigration, terrorism 
iscuss immigration and terrorism. (Reuters)
That this tough-guy, get-mad-and-get-even approach has gained him an increasingly large and enthusiastic following has probably surprised Trump as much as anyone else. Trump himself is simply and quite literally an egomaniac. But the phenomenon he has created and now leads has become something larger than him, and something far more dangerous.

Saturday, September 17, 2016

AVVO has free speech right to publish lawyer listings

Race and the Trump campaign//Vox

Friday, September 16, 2016

Which Chinese cases are most persuasive? | Supreme People's Court Monitor

Sometimes I think that the words China and contradiction are synonyms.  The indispensable Susan Finder reports on the regularization of judicial decisionkaming in a system that often says one thing and does another. - gwc
Which Chinese cases are most persuasive? | Supreme People's Court Monitor
by Susan Finder (Peking University Transnational School of Law, Shenzhen, PRC)

Chinese courts are paying more attention to the use of precedent in considering how to decide cases. (Two of my fellow bloggers,Mark Cohen and Jeremy Daum, have recently published on this issue, as have I.) One of the many issues remaining to be settled as China constructs its own case law system is a hierarchy of precedent, so that the Chinese legal community, in particular its overworked judges, have clear rules on this issue. (This is one of the questions subsumed under #23 of the Fourth Five Year Court Reform Plan).

We know that the hierarchy of precedent is not settled because two recent authoritative Chinese publications take a similar but not identical approach:
The first, as cited in an article by Judges Jiang Huiling and Yang Yi of the Supreme People’s Court Center for Applied Jurisprudence, highlight the list set out in “The Beijing IP Court Guiding Case Work Implementation Methods (Draft)” (summarized in Jeremy Daum’s article); and
The second, an article by Judge Wang Jing, a senior Nanjing Intermediate People’s Court judge, published (and re-published) in a number of prestigious Wechat public accounts, including the account of the Shandong Higher People’s Court. (Wang Jing has frequently published in SPC publications and she published her views on the judicial quota system (on Judge He Fan’s public account).

(As helpfully translated in Jeremy Daum’s article, the Beijing IP court draft regulations list, from most to least persuasive:
SPC guiding cases
SPC annual cases
other SPC cases
High People’s Court model cases
High People’s Court reference cases
Other prior cases from High People’s Courts
Intermediate People’s Court precedent,
Basic-level Court precedent,
Foreign (non-mainland) case precedent.

I’ll focus on Judge Wang Jing’s analysis.

Wednesday, September 14, 2016

Donald Trump Is the Symptom of Our PTSD | Foreign Policy

Donald Trump Is the Symptom of Our PTSD | Foreign Policy
by David Rothkpof (CEO and Editor of the FP (Foreign Policy) Group)
w did we get here?
It is September 2016 and Donald Trump is one of two people who have a chance of being the next leader of the most powerful nation in the history of the world. Something in excess of four out of 10 Americans who are likely to vote support him and, according to a recent poll, his voters are more enthusiastic and engaged than those supporting his opponent, Hillary Clinton.
Trending Articles

Russia’s Middle East Offensive

Russia’s star is waxing while America’s wanes.

All this despite the fact that any objective analysis of the facts reveals the following: Trump has virtually no qualifications to be president, repeatedly failed as a businessman, has no history of public service, is the target of multiple investigations into possibly illegal activities, has regularly expressed racist and misogynist views throughout his career and during this campaign, and has deliberately and systematically reached out to groups that can only be described as “deplorable” — including white supremacists, anti-Semites, and other hate-mongers. Further, he has repeatedly expressed (including on Russian-state TV) his admiration for Vladimir Putin, a man who has systematically suppressed democracy in Russia, invaded his neighbors, scoffed at international law, and sought to undercut the interests of the United States. Worse, he has hired top aides who worked closely with the Moscow regime and sought to take advantage of a shockingly overt campaign by Russian intelligence to interfere in the U.S. election cycle.
Trump has repeatedly insulted and attacked the U.S. military and intelligence community, its leadership, and performance — while showing such utter contempt for the electorate that he has made no visible effort to come to understand America’s situation in the world or how foreign policy works. What is more, he has demonstrated his derision for the First Amendment to the Constitution and regularly sought to block, quash, and intimidate the press. If there were a more textbook example of the narcissistic, brutal personality type from which authoritarian thugs are made, it is hard to imagine. Trump is not just an American Berlusconi, he is our Putin- or Mugabe-in-waiting.
In an election year in which inequality and economic insecurity rank atop the list of voter concerns, Trump is a billionaire who has made his money by gaming the system and stiffing the little guy. He is odious and offensive; a poster child for everything wrong with the U.S. system. Indeed, the fact that he is not broke or in jail is powerful testimony to the special and unfair advantages the very rich have in America today. (See, for example, the evolving pay-to-play corruption scandal involving him and Florida’s attorney general.)
In fact, by any rational calculus the only federal office for which Trump seems suited is one with bars on the windows. The notion that somehow he has become a champion for Joe Lunch Bucket is beyond ludicrous. It would be like Kanye West becoming spokesperson for the American Humility Society … except the stakes are incalculably higher......

Gone But Not Forgotten: A Photographic Vision of School Segregation

Gone But Not Forgotten: A Photographic Vision of School Segregation
by Tom Stoelker
A show at the Lipani Gallery on the Lincoln Center campus features photographs of a series of unremarkable buildings, rendered significant through technique and context.
The technique, applied in Photoshop, sets the buildings apart from their surroundings by screening the background environment down to a grey veil.
And the context is America’s racial history, as each photo of a building depicts a formerly segregated school for African Americans, located north of the Mason Dixon line.
Photographer Wendel White’s show, provocatively titled “Schools for the Colored,” runs through Oct. 26.

Tuesday, September 13, 2016

The Crisis at The Times And That Public Editor Piece

The Crisis at The Times And That Public Editor Piece

"the tree of liberty must be watered with the blood of patriots" Kentucky Gov. Matt Bevin

Speaking to the Family Research Council lunatic right Kentucky Governor Matt Bevin, father of 9, says that if Hillary Clinton is elected President we will only be able to save the country if we recognize that the tree of liberty must be watered with the blood of patriots.

Monday, September 12, 2016

Trump Time Capsule #100: An Interview That Would Have Made News in Any Other Year - The Atlantic

Trump Time Capsule #100: An Interview That Would Have Made News in Any Other Year - The Atlantic

The agents of intolerance have won | GOPLifer

The agents of intolerance have won | GOPLifer
by Chris Ladd

The day after McCain’s “Agents of Intolerance” speech I was online exploring ways to volunteer for his campaign. Good thing I was quick, because it didn’t last much longer.
That speech in February of 2000, posted here in its entirety, was the last gasp of the Party of Lincoln. For a few weeks that spring it looked as if sane, thinking Republicans might stage a coup against the Neo-Confederate coalition gradually seizing control from the South. That coup failed.
When he took the nomination in 2008, he did it with apologies to his previous positions and a running mate chosen from a ‘basket of deplorables.’ Though he still had the temerity to acknowledge that climate change was real and Obama was a decent human being, he had been forced to abandon almost any other reality-based position. When he lost, the last flicker of Republican sanity had effectively been extinguished.
Human beings struggle to recognize environmental changes that occur gradually, even when those changes are enormous. As an exercise in alternative history, pull up a transcript of one of Donald Trump’s bizarre, stream of consciousness rants and place it next to McCain’s February 28, 2000 speech. That juxtaposition between war-hero statesman and reality TV idiocrat is a capsule of the party’s decline. The man who gave that speech 16 years ago very nearly became President. Now, Republicans will never see anything like that again.

Sunday, September 11, 2016

Fei Chang Dao: Courts Hold Refering to Historical Nihilists as "Sons of Bitches" is Not Defamatory

Fei Chang Dao: Courts Hold Refering to Historical Nihilists as "Sons of Bitches" is Not Defamatory

Twonew defmation casesin China Chinese Law Prof Blog

Chinese Law Prof Blog
by DonaldClarke

The other day I posted about the concept of group defamation in China, noting that Chinese courts have upheld complaints in which members of a particular group sought damages or other legal remedies against those they believed had insulted their group.
The two interesting legal issues in cases like this are (1) under what circumstances can any group member sue for an insult to the entire group, and (2) what sort of commentary counts as an actionable insult (i.e., does the insult have to be an allegation of a particular fact that could be verified as true or not true (such as Donald Trump's allegation that Mexican illegal immigrants are rapists), or can it be just an offensive expression of opinion ("so-and-so is a jerk")?
In the United States, the answer to question 2 is that it must be an untrue allegation of a particular defamatory fact, not just something that is clearly the expression of an opinion that nobody would mistake for a factual allegation. The answer to question 1 is that if it's the group that has been insulted, an individual cannot sue unless the group is so small and identifiable that those who heard the defamatory statement would readily connect it to that individual. (This at least is my understanding; I'm not a libel law expert.) I note this only for comparative purposes and not to suggest that the U.S. rule is one that everyone else should follow.

An Afghan refugee in Pakistan Remembers 9/11

Josh Shahryar
Josh Shahryar  @JShahryar   
Reading all the testimonies from on #WhereWereYou and figured I'll tell about my own - I was an Afghan refugee in Pakistan.
On September 11, 2001, I was a 19 year old kid. I say kid because looking back, I knew so little about the world it's embarrassing
Check out @JShahryar's Tweet:

"I won't back down" - Tom Petty's Lesson for Hillary

Hillary Clinton's awkward phrasing "half of Trump's supporters are a basket of deplorables" gave Trump et al. an opening.  Her halfway apology for "over generalizing" demonstrates a danger.  This is not a test. As Josh Marshall notes she can't back down.  Trump triumphed by steamrolling "Little Marco, Lying Ted, low energy Jeb, etc.  Now he has Crooked Hillary in his sights.  And he hs the nearly prostrate mass media, and critics left and right focusing on Hillary's venial sins, and deprecating her virtues (she's a pedantic policy wonk).

We know what lines he'll use in debate: and Hillary has to stand up tough and dignified against the mud slinging and ridicule.  She should stick with Tom Petty and the Heartbreakers. - gwc

China CP Rap Video: Fighting for an Uncorrupted Nation

Displaying PRC Party anti corruption rap video.JPG
The Disciplinary Commission of China's Communist Party has released anew rap-style video emphasizing the importance of fighting corruption.


The video echoes the 4th Book of Confucius - The Great Learning
Translation by David Cowhig

 What the Great Learning teaches is: to illustrate illustrious virtue; to renovate the people; and to rest in the highest excellence.
The point where to rest being known, the object of pursuit is then determined; and, that being determined, an unperturbed calmness may be attained to.
To that calmness there will succeed a tranquil repose. In that repose there may be careful deliberation, and that deliberation will be followed by the attainment of the desired end.
Things have their root and their branches. Affairs have their end and their beginning. To know what is first and what is last will lead near to what is taught in the Great Learning.
The ancients who wished to illustrate illustrious virtue throughout the world, first ordered well their own States.
Wishing to order well their States, they first regulated their families.
Wishing to regulate their families, they first cultivated their persons.
Wishing to cultivate their persons, they first rectified their hearts.
Wishing to rectify their hearts, they first sought to be sincere in their thoughts.
Wishing to be sincere in their thoughts, they first extended to the utmost of their knowledge.
Such extension of knowledge lay in the investigation of things.
Things being investigated, knowledge became complete.
Their knowledge being complete, their thoughts were sincere.
Their thoughts being sincere, their hearts were then rectified.
Their hearts being rectified, their persons were cultivated.
Their persons being cultivated, their families were regulated.
Their families being regulated, their States were rightly governed.
Their States being rightly governed, the entire world was at peace.
From the Son of Heaven down to the mass of the people, all must consider the cultivation of the person the root of everything besides.
It cannot be, when the root is neglected, that what should spring from it will be well ordered.
It never has been the case that what was of great importance has been slightly cared for, and, at the same time, that what was of slight importance has been greatly cared for.

When I read the last line --  "It never has been the case that what was of great importance has been slightly cared for, and, at the same time, that what was of slight importance has been greatly cared for.
其所厚者薄,而其所薄者厚,---   I realized that if Confucius could write that, it must mean that Confucius didn't have an Internet connection back then in the State of Lu.  The Internet only came later when the First Emperor of Qin unified the networking protocols and so created the Internet.

David Cowhig

Campus Watchdog: Upcoming ‘Palestine’ Course Will Increase Antisemitic Atmosphere at UC Berkeley | Jewish & Israel News

A typical piece identifying antiZionism with anti-semitisim.  Having reviewed the syllabus I find it reasonable.  Settler colonialism is an apt phrase for Israel, as it is for the migration  which created our country.  In fact across history I suggest that is how much of humanity has come to be where it is.

Campus Watchdog: Upcoming ‘Palestine’ Course Will Increase Antisemitic Atmosphere at UC Berkeley | Jewish & Israel News

Friday, September 9, 2016

Winston & Strawn DQ'd From Audio Tech IP Suit - Law360

Winston & Strawn DQ'd From Audio Tech IP Suit - Law360
Law360, Los Angeles (September 8, 2016, 6:54 PM ET) -- Winston & Strawn LLPwas disqualified from defending Dell Inc. in a patent fight with a technology licensing company, a Virginia federal judge ruled Wednesday after questioning a Winston lawyer who once represented Dell’s opponent in a case bringing similar infringement claims.

U.S. District Judge Henry Coke Morgan Jr. granted Audio MPEG Inc.’s motion to disqualify in a hearing on Wednesday after he’d called Winston lawyer Steven Anzalone as a witness and questioned him about the work he’d done for Audio MPEG before moving over to the firm, according to minutes posted in the court’s docket.

Judge Morgan said he would publish an opinion explaining his decision in detail, but it hadn’t been posted on the case’s docket late Thursday.

Winston had fought against the motion to disqualify the firm, saying that Anzalone wasn’t involved in the case and that Audio MPEG couldn’t show that the information Anzalone allegedly has about Dell’s legal opponent, “if any,” was being shared with the Dell team, court records show.

Winston and Dell said Audio MPEG has yet to demonstrate “any realistic possibility of prejudice to them arising from the alleged conflict” but has still pushed for such “drastic relief” as disqualification, according to the firm’s response brief on Aug. 31.

The firm pointed out that it’s been representing Dell in this case for eight months and it would take several more for a new firm “to get close” to its level of familiarity with the case and that Anzalone has never represented Dell during his time with Winston. Under those circumstances, the firm said, disqualifying it would be a drastic remedy.

The Virginia-based company sued Dell in December for infringement of U.S. Patent Nos 5,323,3965,777,992 and 5,539,829, which cover audio compression methods it characterized as the industry standard, causing the patents to be licensed out to hundreds of manufacturers, including Apple Inc., Sony Corp. and Lenovo Inc., according to court documents.

However, Dell has argued that because Audio MPEG’s patents are actually a part ofMicrosoft Corp.’s Windows operating system, which runs on most Dell computers, Dell is authorized to utilize the alleged audio encoding and decoding functionality.

The court in July rejected Dell's arguments that the patents at issue are actually invalid under the U. S. Supreme Court’s landmark Alice ruling, finding they do not merely represent an abstract computer idea since they work to improve the functioning of a computer by allowing more audio storage.

An attorney for Audio MPEG declined to comment. A representative for Dell didn’t immediately respond to a request for comment on Thursday.

Audio MPEG is represented by Stephen E. Noona of Kaufman & Canoles PC and Garrard R. Beeney, Stephen J. Elliott, W. Rudolph Kleysteuber, Michael P. Devlin, Jamie L. Kringstein and Andrew H. Ward of Sullivan & Cromwell LLP.

Dell is represented by Charles B. Molster III of The Law Offices of Charles B. Molster III PLLC and Kimball R. Anderson, Kathleen B. Barry and Anthony D. Pesce of Winston & Strawn LLP.

The case is Audio MPEG, Inc. et al v. Dell, Inc., et al, case number 2:15-cv-00073, in the U.S. District Court for the Eastern District of Virginia.

--Additional reporting by Kali Hays and Matthew Guarnaccia. Editing by Kelly Duncan.

Thursday, September 8, 2016

Judge, Citing Inequality, Orders Connecticut to Overhaul Its School System - The New York Times

A narrow mandate from a divided Connecticut  Supreme Court (3-1-3) sent back for trial the state's long-running litigation about inequitable funding of public schools. In Connecticut Coalition for Justice in Education Funding Superior Judge Thomas Moukwasher ruled on September 7 that the state's school funding scheme fails the test of being "reasoned, substantial, and verifiably connected to teaching."  Ouch.  In his 90 page Memorandum of Decision and 156 page finding of facts the judge concluded  that the state's education policies are "so befuddled or misdirected as to be irrational". - GWC
Judge, Citing Inequality, Orders Connecticut to Overhaul Its School System - The New York Times

by Elizabeth A.  Harris

In a decision that could fundamentally reshape public education in Connecticut, the state was ordered on Wednesday to make changes in everything from how schools are financed to which students are eligible to graduate from high school to how teachers are paid and evaluated.
Reading his ruling from the bench for more than two hours, Judge Thomas Moukawsher of State Superior Court in Hartford said that “Connecticut is defaulting on its constitutional duty” to give all children an adequate education.
Judge Moukawsher’s decision was a response to a lawsuit filed more than a decade ago that claimed the state was shortchanging the poorest district when it came to school funding. What separates the decision from those in dozens of similar suits around the country is that rather than addressing money only, it requires the state to rethink nearly every major aspect of its system.
“This is a game changer,” said Joseph P. Ganim, the mayor of Bridgeport, Conn., one of the state’s poorest and lowest-performing school districts. “It’s an indictment of the application of the system, and of the system itself.”
Joseph P. Moodhe, who represented the plaintiffs in the case, Connecticut Coalition for Justice in Education Funding, said that virtually every state had faced an education funding suit. This year, the Kansas Supreme Court ruled that the state’s financing plan created “intolerable” inequities. And in New York, a 2006 lawsuit was supposed to yield additional money in New York City and districts with high poverty rates, but a battle persists over whether the state is meeting its obligations.
William S. Koski, a professor of law and education at Stanford University, called the scope of the ruling “highly unusual.”
“Most of these school finance lawsuits are about numbers, and about whether adequate funding is being provided for whatever learning outcomes the court establishes,” he said. “Really, it’s typically about the money.”
As for the Connecticut ruling, he said, “I would call it a school reform decision rather than a school funding decision.”

Donald Trump Bizarrely Heaps Even More Praise On Vladimir Putin

The man is a fool.
Donald Trump Bizarrely Heaps Even More Praise On Vladimir Putin
Trump went on to say he welcomed the compliments Putin has paid him.
"If he says great things about me, I'm going to say great things about him," Trump said. "The man has very strong control over a country. Now it's a very different system and I don't happen to like the system, but certainly in that system, he's been a leader. Far more than our president has been a leader."
Trump was asked how he would deescalate the tensions between the U.S. and Russia.
"I think I would have a very, very good relationship with Putin, and I think I would have a very, very good relationship with Russia," Trump said, while criticizing Obama's handling of Putin.
"And I just saw two or three days ago, they looked like they were not exactly getting along. But I looked at President Obama and Putin staring at each other, these were not two people that were getting along," Trump said. "And you know the beautiful part of getting along, Russia wants to defeat ISIS as badly as we do. If we had a relationship with Russia, wouldn't it be wonderful if we could work on it together and knock the hell out of ISIS? Wouldn't that be a wonderful thing?"

Wednesday, September 7, 2016 is Challenged on Two Fronts in Supreme Court | Supreme Court Brief is Challenged on Two Fronts in Supreme Court | Supreme Court Brief
by Marcia Coyle
In the span of one week,, the national online classified ad website, has found itself in the U.S. Supreme Court both as an applicant—challenging a U.S. Senate subpoena for business information—and as a target. At the heart of both cases: sex trafficking.
The two cases—Doe v. and Ferrer v. Senate Permanent Subcommittee on Investigations—involve very different legal questions. But they both carry potentially significant implications for internet content providers in particular and, more largely, for the digital economy.
The Doe petition was filed on Aug. 31 by John Montgomery and Douglas Hallward-Driemeier of Ropes & Gray and asks the justices to interpret a provision, Section 230, of the Communications Decency Act of 1996.
Congress attempted through the Communications Decency Act to regulate access to indecent or obscene content on the Internet. Section 230 of the act says: “[N]o provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.” In other words, internet service providers that host content by third-party users are protected from liability for claims that treat them as traditional publishers.
Montgomery and Hallward-Driemeier represent three child sex-trafficking victims from the New England area who, beginning at age 15, were illegally trafficked for sex through, according to their petition.
To hold Backpage responsible for the girls' physical and psychological injuries, they sued under the federal Trafficking Victims Protection Act of 2000 and the Massachusetts Anti-Trafficking Act of 2010. They alleged Backpage knowingly profited from the sexual exploitation of children by intentionally creating an online marketplace to facilitate trafficking.
A trial judge dismissed the suit, concluding that Section 230 barred the claims under the federal and state laws. The U.S. Court of Appeals for the First Circuit upheld that ruling in March.
Montgomery and Hallward-Driemeier argue the First Circuit decision conflicts with decisions of the Ninth Circuit and a 2015 Washington state Supreme Court decision in a nearly identical case.
"When the Communications Decency Act was enacted 20 years ago to protect the development of the internet, Congress surely did not intend to shield serious criminal activity from liability under statutes enacted subsequently by Congress to protect victims of child sex trafficking,” Montgomery said. "We are hopeful that the Supreme Court will correct this erroneous interpretation of the law, and restore the opportunity of the victims to demonstrate that is liable for aiding and participating in child sex trafficking.”
The Institute to Address Criminal Sexual Exploitation at Villanova University Charles Widger School of Law notes in a policy paper: "Many convicted sex traffickers have advertised their victims as available for sex on Backpage, some as many as 300 times, resulting in 10-12 transactions daily."

In early cases interpreting Section 230 of the Communications Decency Act, the paper also notes, courts characterized Section 230 immunity as “broad” and “robust,” “immunizing interactive computer services from liability for information that originates with third parties.” That approach, internet freedom groups argued, was necessary to help foster and maintain the “diverse, expansive internet we know today.”
But the Villanova institute says courts more recently have departed from this broad concept of immunity. Those judges have concluded the Communications Decency Act’s text does not “declare a general immunity from liability from third-party content,” but instead requires a more narrow interpretation.
No response has been filed yet in the Doe case, which is likely to be ready for the justices' first look in late fall.
In the second case, turned to the Supreme Court on Sept. 7 seeking an immediate stay of a trial judge’s order that requires the company to respond to a U.S. Senate subcommittee’s subpoena for documents about how Backpage policies third-party content.
Chief Justice John Roberts Jr. issued the stay pending a response from the Senate Homeland Security and Governmental Affairs' permanent subcommittee on investigations by noon Sept. 9 or until further order by him or the full court.
The Senate subcommittee is investigating sex trafficking. In March, the full Senate voted unanimously to hold Backpage in civil contempt for refusing to comply with the subpoena. A D.C. Circuit panel temporarily halted the district court order but dissolved its stay on Sept. 2. The appeals court gave Backpage 10 days to comply.
First Amendment litigator Robert Corn-Revere of Davis Wright Tremaine represents Backpage and its chief executive, Carl Ferrer, in the high court. He argues the Senate subpoena violates Ferrer's First Amendment rights.
"This case presents a question of exceptional nationwide importance involving the protection the First Amendment provides to online publishers of third-party content when they engage in core editorial functions," Corn-Revere told Roberts.
The subcommittee, along with other governmental actors, Corn-Revere wrote, "asks the judiciary to approve the use of subpoena power as a bludgeon to burden or restrict editorial policies of which [the subcommittee] disapproves." Backpage has already produced more than 16,000 pages of documents, he said.

Contact Marcia Coyle at On Twitter: @MarciaCoyle.