 |
|
||
| |
MEDIA REVIEWS Is There a Right to Remain Silent? By Alan M. Dershowitz, Reviewed by FRED A. SIMPSON This book is one of 27 works of fiction and nonfiction by Harvard’s Professor Alan Dershowitz. It is part of the Oxford series entitled “Inalienable Rights,” dealing with such essential constitutional issues as free speech, religious freedom, and the right to bear arms, clarifying those types of issues and calling for us to give more thought to our basic freedoms. While reading this particular treatise, one gets the feeling that the author has forgotten more about constitutional law than most of us ever learned or may stumble across. Dershowitz uses the 2003 Supreme Court case of Chavez v. Martinez1as his instrument to analyze the broader issues relating to the history and policies underlying the privilege against self-incrimination, notwithstanding Miranda and its familiar warnings. Martinez was a civil case against a police officer under 42 U.S.C. §1983 in which the Supreme Court “nose count” was 6-3 but where all nine justices seemed to reject the idea that the Fifth Amendment gives Americans the absolute right to remain silent in every type of police investigation and that coercive police tactics do not necessarily violate our constitutional rights against self-incrimination. Nevertheless, the justices left open the question of whether the type of coercion in Martinez rose to the level of a substantive due process violation. Dershowitz observes that the Fifth Amendment may not limit the type or degree of coercion that lawfully can be applied to a person in order to elicit incriminating statements, so long as the coerced statements (and their fruits) are not introduced against the coerced person at a criminal trial – a literal reading of the Fifth Amendment. However, he also notes that the boundaries of such coercion are rather unmapped at this time and too little has been done thus far to define the rules of law that may govern “preventive” coercive interrogation. Dershowitz uses Martinez to explore how, over the years, justices and scholars analyze privileges as they try to make the Constitution “fit” changing circumstances, and how the self-incriminating privilege may be viewed in the future as we grapple with the suicidal terrorist era in which we now live. He finds it remarkable that our “hastily written” Constitution “filled with drafting errors” survived so many years with so few amendments, given its origin over 200 years ago when the criminal justice system was primitive, the police – as we know them today – were nonexistent, lawyers were few, slavery was a way of life, and males dominated a far smaller population in a world of Protestant sensibilities. The author urges the proper and cautious movement of our democratic society away from a deterrent or punitive model of criminal justice toward what is inevitably a more preventive model seeking to anticipate and stop harm before it occurs. “The due process clause may impose some constraints on the most extreme forms of coercion, but even that is uncertain, especially in the context of preventing mass-casualty terrorist attacks” and “More work needs to be done by the courts, by legislatures, by academics and by the people themselves to protect us all against accepting a society that routinely employs abusively coercive interrogations.” Noting that contemporary constitutional law contains a gaping black hole in need of filling by meaningful constitutional safeguards, Dershowitz argues that Martinez should not be the last word. He admonishes, “The gap should be closed by making it plain that Americans do not have an absolute right to remain silent and by making equally clear that our government does not have the absolute power to use all manner of coercive interrogation, even for preventive purposes.” Fred A Simpson is a partner at Jackson Walker LLP and the editor in chief of Endnote 1. Reversing lower courts by finding, inter alia, “the government may compel witnesses to testify at trial or before a grand jury, on pain of contempt, so long as the witness is not the target of the criminal case in which he testifies.” 123 S.Ct. 1994, 2001 (2003). Furthermore, “those subjected to coercive police interrogations have an automatic protection for the use of their involuntary statements (or evidence derived from their statements) in any subsequent criminal trial.” Id. The issue in Martinez was whether the police officer/petitioner was entitled to qualified immunity, which depended on whether that officer’s conduct violated a constitutional right. After police shot Martinez during an altercation, Officer Chavez questioned Martinez while medical treatment was administered to Martinez. During this interrogation, Martinez, who said he thought he was dying, admitted to threatening police with a gun and that he regularly used heroin. Martinez was never given Miranda warnings, but was never charged with a crime and his admissions were never used against him in any criminal prosecution. Id. at 1999 - 2000.
Modern Patent Law Precedent 8th Edition 2007 Reviewed by AL HARRISON Modern Patent Law Precedent is hardly a conventional dictionary. The book corresponds to a virtual Rosetta Stone for comprehending and gaining insight into the legal principles and case law underlying patent prosecution and patent litigation. The cited precedents have been engendered by the Patent Office’s Board of Patent Appeals and Interferences, by trial courts, and by appellate courts throughout the circuits including the Federal Circuit and the United States Supreme Court; and the citation for each authority is subsumed into a particular patent law topic and presented chronologically in paragraph form. Aisenberg excerpts and judiciously paraphrases noteworthy language articulated in this panoply of judicial decisions. Attorneys will appreciate how effectively such a contextual approach affords a clear explanation of patent law precedents. The plethora of terms and concepts incorporated into this book are presented in alphabetical order. For the user’s convenience, the first letter of each term/concept being elucidated is printed in the upper-left corner of each right-hand, odd-numbered page. The profound qualities of Aisenberg’s book may be seen, for instance, by considering a crucial term on the patent law landscape: “claim.” The claim or claims of a patent-related matter are integral to every aspect of patent law. How does the author’s explanation of what constitutes a claim differ from a conventional dictionary definition? The author commences his discussion with a 1891 Supreme Court decision indicating that a patentee may claim ownership of only a part of his invention, but the part disclosed but unclaimed is presumed to be abandoned and gratuitously given to the public. Supreme Court language is again cited (1966 decision) in the text to address the important scope issue: “It is fundamental that claims are to be construed in the light of the specification and both [claims and specification] are to be read with a view to ascertain the invention.” The author includes recitations from Federal Circuit (2001 and 2004) decisions: “The purpose of claims is not to explain the technology or how it works, but to state the legal boundaries of the patent grant” and “whether a term appearing in a patent claim is subject to limitations beyond its abstract general meaning is determined in the context of the invention described in the specification, the prosecution history, and the prior art.” For the user’s convenience, the author provides related terms that are calculated to enable attorneys or paralegal staff to comprehend the breadth of relevant terms and concepts. Sample enumerated claims-related terms are: allowed claim, antecedent basis, claim construction, claim limitation, dependent claim, independent claim, and rejected claim. One or more of these definitional discussions may be invoked to afford insight into relevant considerations. Thus, an explanation of a claimed invention is located alphabetically in the book and consists of a concatenation of quotes and paraphrases excerpted from relevant cases decided in the U.S. Patent Office, in trial courts, and appellate courts. The meaning is clear: “Claims are read in light of the disclosure of the specification on which they are based.” Controversies frequently arise in the employment scenario. Aisenberg facilitates a user becoming aware that employment alone is an insufficient basis for requiring an inventor to assign patent rights to her employer. A 1933 Supreme Court case is cited as authority for distinguishing when an employee has a duty to assign all patent rights to her employer. Using his precedent-setting approach, the nature of the employment scenario is assessed by analyzing a 1960 California case with a 1989 Federal Circuit precedent. It is also noted, based upon a 1933 Supreme Court decision, that an employer has a time-honored shop right to be granted non-exclusive permission to practice an employee’s patented invention under certain circumstances. The employee would still retain exclusive patent rights. The book clarifies the basis of a shop right via citation to a 1983 Fifth Circuit decision. Hence, Aisenberg’s Modern Patent Law Precedent is recommended for enabling litigation and trial attorneys to expeditiously acquire practical insight into contemporary patent law. It also enables patent attorneys to refine their understanding of currently construed patent law principles applicable to counseling intellectual property clients, preparing and prosecuting patent applications, and evaluating and litigating possible infringement matters. By elucidating patent law principles via a series of judiciously-selected paragraphs reciting legal precedents, this encyclopedic text transcends the limited definitions typically afforded by a conventional dictionary. Each key term/concept topic is designed to familiarize the user with the series of precedents and concomitant facts that establish basic principles modern patent law. Mission accomplished! Al Harrison is a patent attorney practicing intellectual property law in Houston, with Harrison Law Office, P.C. He has been a member of The Houston Lawyer Editorial Board for several years.
Copyright’s Paradox By Neil Weinstock Netanel In Copyright’s Paradox, UCLA law professor Neil Netanel explores the growing tension between free speech and copyright law’s grant of property rights in expression. The author concludes that the tension cannot be eradicated, but that copyright can and should be redrawn to better serve free speech goals in both traditional and digital media. He lays out his argument and proposals to address the copyright—free speech conflict with in-depth analysis that unfold in three parts over nine chapters. Chapters 1-4 present the author’s premise that the current state of copyright law imposes unacceptable burdens on speech. Specifically, chapter 1 introduces the paradox referenced in the book’s title – that copyright serves both as an “engine of free expression” and as a silencer of free expression. Chapter 2 provides various concrete illustrations ranging from Alan Cranston’s anti-Hitler translation of Mein Kampf to the Google Book Search litigation to show why we should care about how copyright often prevents speakers from effectively conveying their messages. Chapter 3 analyzes our basic understandings of “free speech” and “First Amendment values” and explains why copyright is properly said to burden free speech in some ways, but does not truly implicate free speech concerns in other ways. Chapter 4 documents the most troublesome areas of copyright’s expansion that further fuel the copyright-free speech conflict, copyright duration, creative appropriation, the constriction of fair use, “paracopyright,” personal uses, and new technological means of dissemination. Chapters 5-7 explore copyright’s conflicting roles as both an engine of free expression and an impediment to free expression. Chapter 5 analyzes copyright’s traditional role as an “engine of free expression” and considers whether copyright still serves that role given the rise of nonmarket expression on the Internet. Chapter 6 identifies specific ways in which copyright burdens speech, such as when the copyright holders deliberately silence certain expressive uses of their work or impose prohibitively high licensing fees that speakers can ill afford. The author also includes a detailed analysis of economic factors such as copyright holders’ market power, copyright industry concentration, transactional costs, and entry barriers to show that even when we view copyright from an economic efficiency perspective, it still implicates free speech concerns. Chapter 7 challenges the argument that a Blackstonian view of copyright as proprietary property promote expressive diversity and demonstrates that such a view may induce product differentiation, while actually diminishing, rather than promoting, diverse and socially valuable expression. Chapters 8-9 present the author’s proposals to minimize copyright’s burdens on speech while enabling copyright to function as an engine of free expression in conjunction with First Amendment values. Chapter 8 demonstrates the need for Congress and the courts to interpret and develop copyright doctrine in line with First Amendment values and at the very least, courts should apply First Amendment scrutiny to ensure that copyright’s traditional free speech safety valves, like the fair use doctrine, would actually accomplish their tasks. Chapter 9 takes us through specific ways that the Copyright Act can be amended to minimize the burdens on free speech and promote First Amendment values. The author suggests proposals that include a scheme of liability rules that would deny copyright holders a veto, but would compensate them for the use of their work and, in some areas, even compensate those who would otherwise receive nothing under current law. Overall, Copyright’s Paradox is a well-written book that provides a balanced intellectual discourse on the issues embroiled in the copyright—free speech debate and an insightful road map on how to redraw copyright law to better serve free speech goals. It should be of interest to anyone concerned with freedom of speech and ownership in creating and disseminating works of creative expression. Linhuyen Pham practices with the firm of Heard & Medack, P.C. She is a member of The Houston Lawyer editorial board.
|
