- Will it ever end? “Monkey Selfie Photographer Says He’s Now Going To Sue Wikipedia” [Mike Masnick, TechDirt, earlier]
- Justice Thomas argues Indian Reorganization Act is unconstitutional [Upstate Citizens for Equality v. U.S., land-into-trust, dissenting from denial of certiorari]
- “How much does it cost to reimburse a probation officer for $60 pants? About $4,300, so far” [John Beauge, PennLive]
- On Gill v. Whitford, partisan gerrymandering, and the uses of math in law [Erica Goldberg]
- Brazil makes progress on fighting corruption, advancing rule of law [Juan Carlos Hidalgo on new Cato policy analysis by Geanluca Lorenzon]
- “Activision are fighting a [trademark] for ‘Call of DooDee’, a dog-poop-removal service” [PC Games]
Yesterday’s Thanksgiving celebration was accompanied by a fair bit of commentary about how the November holiday is a “day of indigenous mourning,” a symbol of the theft of the United States from its pre-Columbian population. Yet as I wrote in 2011 in the Schools for Misrule chapter on Indian land claims, the historical premise that Indian land in the U.S. was by and large stolen by the white man is false:
In 2005 a young UCLA law professor, Stuart Banner, published How the Indians Lost Their Land, an extensively researched work that does much to correct the portrayal of white-Indian relations as a mere catalog of thefts, conquests, and usurpations. As Banner demonstrates, the actions and attitudes of white Americans and their institutions have shown a full range of shadow and light, from extreme wickedness and ignorance to as much grace, goodwill, and foresight as could have been expected under the circumstances. Tracing the many twists and reverses of federal Indian policy, Banner notes that it was usually anything but obvious which proposed measures would truly serve the interests of aboriginal inhabitants, that nearly all major changes in policy enjoyed support among some Indians and Indian-friendly white reformers, and that most of the major disasters to afflict America’s Indian population were either unforeseen or not well controllable by the central government.
I also quote the leading 20th Century scholar of Indian law, Felix S. Cohen, architect of the “Indian New Deal” and one of the most progressive law professors and FDR appointees of his era:
Fortunately for the security of American real estate titles, the business of securing cessions of Indian titles has been, on the whole, conscientiously pursued by the Federal Government, as long as there has been a Federal Government. The notion that America was stolen from the Indians is one of the myths by which we Americans are prone to hide our real virtues and make our idealism look as hard-boiled as possible. We are probably the one great nation in the world that has consistently sought to deal with an aboriginal population on fair and equitable terms. We have not always succeeded in this effort but our deviations have not been typical.
It is, in fact, difficult to understand the decisions on Indian title or to appreciate their scope and their limitations if one views the history of American land settlement as a history of wholesale robbery.
More on the controversy that erupted in September: By ruling the patent invalid due to obviousness, a federal judge may have mooted Allergan’s innovative move to transfer its patent over a successful dry-eye drug, Restasis, to the St. Regis Mohawk tribe. “The Restasis patents are at the center of a novel legal strategy that involves using Native American sovereignty rights to avoid certain types of patent reviews, called inter partes reviews, or IPRs….But this ruling won’t be the last time sovereign immunity is used to defend patents.” [Joe Mullin, ArsTechnica] And for something contrarian, Joanna Shepherd at Truth on the Market offers context on the bypassing of inter partes reviews, saying IPR is a process itself unbalanced in favor of patent challengers.
- Antitrust crackdown on Big Tech based on predictions of where markets may head in future? Just don’t [Alan Reynolds in part three of series; parts one and two]
- Copyright holder sends mass demands to IP address holders, but for lower amounts and as “fines” rather than settlements. A move away from troll model, or refinement of it? [Timothy Geigner, TechDirt]
- Among the many issues far afield from Bill of Rights that ACLU is up to lately: defending drive-by ADA filing operations against remedial legislation [ACLU, earlier on its drift from civil liberties mission]
- Texas AG sues arguing unconstitutionality of Indian Child Welfare Act (ICWA); case involves blocking of “adoption [that] has the support of the boy’s biological parents and grandmother, Paxton said.” [Texas Tribune] More: Timothy Sandefur, NR;
- More local and personal than my usual fare, I ramble about my education and upbringing, why I live where I live, as well as some policy matters [Frederick News-Post “Frederick Uncut” local-newsmaker podcast with Colin McGuire and Danielle Gaines]
- “What’s the Difference between ‘Major,’ ‘Significant,’ and All Those Other Federal Rule Categories?” [Clyde Wayne Crews, Jr., CEI]
- Cafeteria nudge dud: questions raised on efficacy of USDA Smarter Lunchrooms Movement, launched in 2010 [Caitlin Dewey, Washington Post; Elizabeth Nolan Brown/Reason]
- “Florida Legislator Wants to Make It a Crime to Leave Your Kid in the Car for Just One Minute. But Why?” [Lenore Skenazy] “Dad Teaches Kids to Ride the Bus. But CPS Says He Can Never Leave Them Alone, Ever.” [same, Canada; more] “Court Upholds Dad’s Conviction for Making 8-Year-Old Son Walk Home Alone” [same, California]
- Judge: Arizona lawmakers not free to end Mexican-American studies program in schools if motivated by animus [Michael Kiefer, Arizona Republic]
- “Former Los Altos baseball player sues coach after being benched, claims bullying” [Hayley Munguia, San Gabriel Valley Tribune, Calif.]
- Oft-told story of residential schools as ruin of Native American life might admit of some complication [Naomi Schaefer Riley, Education and Culture, reviewing Dawn Peterson, Indians in the Family: Adoption and the Politics of Antebellum Expansion]
- New York initiative on suspensions likely to make schools less safe [Max Eden, New York Post] “Another Obama Policy Betsy DeVos Should Throw Out” [Jason E. Riley, WSJ]
Allergan: we’ve transferred the patents for our dry-eye drug Restasis to the St. Regis Mohawk tribe, so now the Patent Trial and Appeal Board and our competitors can just go take a hike. The move follows a January decision by the PTAB to drop “a case against the University of Florida citing its sovereign immunity as a state institution. After that ruling, Michael Shore, a lawyer at Shore Chan DePumpo LLP in Dallas that represented the university, said the firm began looking for an Indian tribe that was interested in taking advantage of the ‘arbitrage opportunity.'” Rivals can still challenge the patents’ continuing validity in federal court, but that is a more cumbersome process. [Jonathan D. Rockoff, WSJ]
“Indigenous advocates from around the world are calling on a UN committee to ban the appropriation of Indigenous cultures — and to do it quickly….Since it began in 2001, the committee [a “specialized international committee within the World Intellectual Property Organization (WIPO), a United Nations agency”] has been working on creating and finishing three pieces of international law that would expand intellectual-property regulations to protect things like Indigenous designs, dances, words and traditional medicines.” [CBC/Yahoo]
Explains the WIPO site: “Traditional cultural expressions (TCEs), also called ‘expressions of folklore’, may include music, dance, art, designs, names, signs and symbols, performances, ceremonies, architectural forms, handicrafts and narratives, or many other artistic or cultural expressions.” Also under consideration are rules for “genetic resources” such as seeds, and folk or traditional knowledge.
One wonders how the novel intellectual property regime being contemplated will diverge from earlier, longstanding IP regimes on such questions as which products of the human mind are subject to protection, how long property rights in cultural expression are to persist after original creation and dissemination, and when if ever creative expressions originating with individuals, whether recently or generations ago, may (or must) have their rights assigned to national or ethnic collectives claiming to represent them. Presumably it will be difficult to limit the idea of collective property rights in folkloric expression to indigenous or tribal groups only, and other national groups and ethnicities, including the economically advanced, will also get in line to stake future claims.
Ed Krayewski, writing at Reason, points out that the project could have a potentially welcome consequences if it serves to impede the patenting by sophisticated Western concerns of medicines that were already in traditional usage, and likewise for the copyrighting of traditional designs and the like. Of course, intellectual property systems already are not generally supposed to confer IP rights on knowledge, uses, or expressions that were in use or known about before the claimant’s purported act of creativity, but national IP systems may not always do a good job of recognizing prior art, use, or knowledge.
For the most part, however, this is an effort to restrict the public domain and the creative and expressive liberties it brings with it. Note that an American law professor, formerly United Nations Special Rapporteur on the rights of indigenous peoples, is helping push it; earlier on Prof. James Anaya, now dean at Colorado, here.
- “Heir hunters” chase missing relatives entitled to inherit unclaimed fortunes, for a share of the recovery. Some relatives might not even be relatives [James Fanelli, New York Daily News first, second stories]
- Put up a statue of Clarence Darrow for the Scopes case? OK, but then take it back down for the L.A. Times case [Mark Pulliam, Law and Liberty]
- Lawyer who founded Prenda Law is disbarred [Joe Mullin, ArsTechnica]
- “Escaping the ICWA Penalty Box: In Defense of Equal Protection for Indian Children” [Timothy Sandefur, Children’s Legal Rights Journal]
- “Russian bank owners sue BuzzFeed over Trump dossier publication” [Josh Gerstein, Politico]
- On OMB regulatory management, Trump administration is headed in its own new direction [Andrew Grossman]
“A federal judge on Thursday ordered delivery giant UPS Inc. to pay New York City and the state nearly $247 million in damages and penalties for illegally shipping cigarettes” to New York buyers from Indian reservations. “UPS argued it followed the rules and can only do so much to police what its 1.6 million daily shippers send in sealed packages.” The delivery service says the shipments accounted for about $1 million in revenue. [AP/New York Post]
- Deadline passes for repeal of Obama-era regulations through the Congressional Review Act, at least those that were properly reported to Congress at the time [David Jordan and Nia Prater, Medill/Charlotte Observer, I’m quoted]
- “Removal of Trump’s Muslim Comments Raise Travel Ban Questions” [Cogan Schneier, National Law Journal, and thanks for quote]
- What happened to the ACLU? [Wendy Kaminer/Alan Dershowitz, WSJ]
- Canada’s Charter allows for override of judicial rulings, and 2015 Canadian Supreme Court ruling finding a constitutional right to strikes in essential public services would make a good occasion for it [Conrad Black, National Post, with a further discussion of the native residential schools issue]
- New Jersey legislature passes a bill, which Gov. Chris Christie then vetoes, banning couples both 17 year old from marrying each other even when both sets of parents or a judge approve [Daily Caller; CBS News report quotes no critic of the idea]
- Protesters from inauguration-trashing DisruptJ20 among those at home of FCC chairman: “Alt-left targets Ajit Pai” [Elizabeth Harrington, Washington Free Beacon]