Today, there is a vigorous and sometimes caustic debate over whether computer software is a patentable invention. Unfortunately, these arguments are rife with confusion about both the technology and the law, and courts are proving to be equally confused. As opposed to continuing the entirely doctrinal and policy debate in the literature, this Essay fills a gap in the scholarship by detailing the historical evolution of computer software and showing how intellectual property (“IP”) law played a key role in its technological development. This historical account contributes to the debate in two ways. First, it reveals that opposition to IP protection for software is not new. There was vociferous opposition in the 1960s to extending copyright protection to software code, just as there is strident opposition today to extending patent protection to software programs. Second, and more important, it reveals why courts extended patent protection to software programs in the 1990s, which followed from the evolution of computer technology itself. Legal doctrines evolve in response to developments in new technology, and the patent system exemplifies this operating principle. The patent system secured to innovators the new technological inventions in the Industrial Revolution and does the same for innovators in today’s Digital Revolution. Understanding the history of computer software and its evolving protections under the IP laws confirms that software programs today are inventions that, if they are new, useful, nonobvious and properly disclosed in a patent application, are rightly eligible for patent protection.
There are several disadvantages to the traditional, Bluebook-centered approach to teaching legal citation. First, it ignores the reality that many federal and state jurisdictions have adopted other systems of citation, while very few have adopted the Bluebook. Second, it suggests to students that obscure Bluebook requirements like Table 6 are important and widely followed in practice, when in fact they are neither. Third, it consumes valuable time both inside and outside class that could be better spent mastering legal research, writing, and analysis.
This Article introduces a system of legal citation that is heavily focused on the types of authorities practicing lawyers cite most—cases and statutes—and that allows for flexibility in spacing and abbreviations. This goal-oriented approach to legal citation—in which citations must enable the reader to locate easily the source cited but need not do more—helps law students learn what they need to know about citations to succeed as practicing attorneys while not getting bogged down by the Bluebook’s minutiae.
Saving the Neighborhood is a book that has been a rather a long time in the making. Rick Brooks and I talked about writing it together for several years after the mid-2000s, when we both found that we shared an interest in racially restrictive covenants.
Saving the Neighborhood is a very fine book. It is a compact, very sinewy book, which is written with great clarity. And it has a kind of spare elegance. It has in short the engineering virtues.
Of the many audiences for this book, the one I will talk about today, perhaps unsurprisingly, is the audience of legal historians, and especially historians of race, civil rights, and the Constitution. Historians who think about racial inequality and the Constitution have thought some, but in my view, not enough, about one of the main subjects of this book: the state action requirement and the relationship between state-mandated and privately enforced racial inequality. In my remarks today, I will briefly review how Saving the Neighborhood treats those issues and identify lessons of the book for historians and constitutional law scholars who can learn much from them.
My comments are both complimentary and complementary. Let’s start with the complimentary. Saving the Neighborhood is a great book. It is a must-read for anybody who studies segregation, particularly in housing. Richard Brooks and Carol Rose have effectively put themselves into the minds of the discriminators, the discriminated-against, the legal profession, and the segregation busters, and have thought through the various ways in which they all reacted to segregation. In the process, the authors document the legal means as well as the informal methods that discriminators used to promote segregation, and how those means and methods changed over time. I was surprised at how difficult it was to set up a foolproof legal form of segregation through covenants, and was disturbed and fascinated by how the discriminators supplemented the covenants with a wide variety of informal arrangements that made the covenants look more forbidding from the outside than they actually were. Those informal arrangements turn out to have been powerful means of maintaining segregation, even as the legality of segregation was challenged and then overthrown. Brooks and Rose do an excellent job of describing the groups that sought to break down segregation. Reformers and housing entrepreneurs often developed uneasy alliances based on quite different motives in working to open up opportunities for mixed-race neighborhoods.
My initial reaction is that the book is wonderful. It’s a jewel. It tells an important story about an important legal mechanism that ultimately had a lot of effects. It masterfully weaves together history, law, economics, and the intricacies of real estate practices.
I want to thank Carol, whom I’ve known for years, and Rick, for writing this book. Although, I did think that the title should be Secured Transactions, I suspect you’d have far fewer readers if you had entitled it Secured Transactions. But, in fact, one thing you can think about when you think about covenants, easements, and servitudes is that they are designed to protect the exchange value and the use value of property.
President Barack Obama nominated four well-qualified, diverse candidates to the United States District Court for the District of Arizona, on September 19, 2013, sixteen days after Chief Judge Roslyn O. Silver assumed senior status.1 The federal bench experiences 80 vacancies of the 677 district court active judgeships authorized by Congress nationwide. The District of Arizona encounters six openings out of thirteen positions.2 All six District of Arizona unfilled posts satisfy the Administrative Office of the United States Court’s criteria for “judicial emergencies” due to the heavy case and workloads tribunal judges carry and the vacancies’ protracted length.3 Indeed, three years ago, Chief Judge Silver instituted the exceptionally rare step of designating the whole Arizona federal district a judicial emergency because of the court’s substantial, increasing criminal docket, inadequate resources, and empty judgeships.4 These vacancies—which are more than eleven percent nationally and surpass forty-five percent in the District of Arizona—undermine speedy, economical, and fair dispute resolution.5 Accordingly, President Barack Obama must swiftly nominate candidates to fill all of the openings throughout the country. For its part, the Senate ought to expeditiously process all nominees whom Obama has tapped, especially the six Arizona District nominees.
After a suspect effectively invokes his Miranda right to counsel, the police may not reinitiate a custodial interrogation until either counsel has been made available or fourteen days has passed.1 This rule is designed to prevent police from harassing or badgering a suspect.2 Since this rule was created, courts have been tasked with deciding what conduct by the police or the suspect constitutes reinitiation. Reinitiation by the suspect occurs when the state objectively perceives a suspect’s desire to “open up a more generalized discussion relating directly or indirectly to the investigation.”3 In Oregon v. Bradshaw, while being transferred, the defendant asked a police officer, “Well, what is going to happen to me now?”4 The Supreme Court held this to be reinitiation by the defendant.5 However, when a suspect answers police’s questions, this is not reinitiation by the suspect.6 If the suspect does not personally reinitiate, then any interrogation within fourteen days by the police is in violation of the suspect’s Miranda rights. Incidental police conduct does not qualify as interrogation. For example, in Fox v. Ward the court held that the officers had not reinitiated questioning by handing their business cards to the suspect.7 In Edwards v. Arizona, the police reinitiated contact by asking the suspect questions about the crime.8
The Case For Experimental Problem-Solving Courts: Rehabilitation Through Behavioral Modification Programs
Offenders leaving our criminal justice system should return as productive society members. To facilitate this goal, we should encourage and expand problem-solving courts as an alternative to traditional courts. Unlike traditional courts, problem-solving courts resolve the underlying causes of crime. Problem-solving courts are rehabilitative courts established to deal with specific problems, often involving individuals who need social, mental health, or substance abuse treatment services. Ultimately, problem-solving courts help offenders return to society as productive community members. These courts can most effectively do so by identifying which methods are most effective in lowering the recidivism rate and replicating those practices.
Problem-solving courts, which began to appear in the 1990s,1 resolve the underlying criminal causes by rehabilitating non-serious, nonviolent offenders through drug or mental health treatment.2 Over 2,500 problem-solving courts now operate nationwide.3 In problem-solving courts, judges use their authority to motivate individuals to accept needed services and to monitor their compliance and progress, with the goal of preventing recidivism.4 Problem-solving courts provide judges with wide discretion to fashion individual remedies that generally comport with a rehabilitative ideal.5 Defendants may voluntarily choose between a court program and incarceration time. The court place serious demands on defendants through intensive court and community supervision,6 but only when defendants agree to participate in the problem-solving court setting. Problem-solving courts have effectively decreased recidivism rates through this process and should continue to do so.
As candidates for legislative and statewide elected offices in Arizona are gearing up for the 2014 elections, a crucial yet unanswered question looms over the proceedings: how much money are candidates allowed to accept from campaign donors? In attempting to clarify the answer, the Arizona Court of Appeals held last month that House Bill 2593 was ineffective because it had not been passed with a supermajority as required by the Arizona Constitution.1 In doing so, the Arizona Court of Appeals ruled in favor of the Clean Elections Commission and against the Speaker of the House and President of the Senate. House Bill 2593, signed into law last spring, overrode existing campaign contribution limits by increasing the maximum contribution that political campaigns could accept from individual supporters. With the enjoinment of the new law, the previous, stricter, campaign contribution requirements are once again the law of Arizona—unless the Arizona Supreme Court steps in.
On March 5, 2013, the Arizona Supreme Court ruled in favor of Stagecoach Trails (“Stagecoach”) in Stagecoach Trails, L.L.C v. City of Benson.1 Stagecoach sought a permit to install a new home in its manufactured home park after a space became vacant, but was denied by the City of Benson.2 A major issue in the case was whether the individual space, as opposed to the entire park, was a nonconforming use under Arizona Revised Statutes (“A.R.S.”) Section 9-462.02(A).3 Under that Section, a nonconforming use is exempt from complying with certain provisions of the city’s zoning code.4 Because the court found that the entire park is a nonconforming use and exempt from the city’s zoning code, the court held that Stagecoach could install the new home.5
On March 5, 2013, the Arizona Supreme Court clarified a statute that had been a gray area for over 20 years when it interpreted Arizona Revised Statute (“A.R.S.”) § 13-4033(B) as applied to post-judgment restitution.1 The Court held that A.R.S. § 13-4033(B) precludes defendants from challenging a post-judgment restitution order made pursuant to a plea agreement, when the agreement specifies a capped amount.2 The importance of this decision stems from the right of criminal defendants to “appeal in all cases” guaranteed by the Arizona Constitution.3 The Court’s decision carefully protects this right by allowing the defendants to petition for post-conviction relief under Rule 32 of the Arizona Rules of Criminal Procedure.4
The Arizona Supreme Court in In re Estate of Kirkes held that a deceased spouse can leave more than one-half of a community-owned retirement account to a non-spouse beneficiary, so long as the surviving spouse receives at least one-half of the community’s entire value.1 In doing so, the Supreme Court affirmed the Court of Appeals decision in In re Estate of Kirkes, 229 Ariz. 212 (App. 2012).
The Arizona Supreme Court recently decided in In re Estate of Riley that all beneficiaries of an estate must execute a settlement agreement if the agreement affects the beneficiaries’ interests in the estate and the parties to the agreement seek court approval.1 The Court narrowed the Arizona Court of Appeals’ ruling and effectively mitigated a number of negative implications arising from the lower court’s decision.2
The Arizona Supreme Court recently held that the Arizona Securities Act (“ASA”) does not allow a claim for aiding and abetting securities fraud and the Court expressly overruled a previous case, State v. Superior Court (Davis).1 Specifically, the Court reasoned that it would be improper to extend common law tort remedies over an issue that was extensively covered by statute. In reaching this decision, the Court relied on the legislative history of the ASA and on the U.S. Supreme Court precedent disallowing federal aiding and abetting liability.2
Declining to depart from substantial compliance test for review of initiatives, Arizona Supreme Court explains its decision to allow challenged proposition on the 2012 ballot.
The Supreme Court recently held that a clerical error in the submission of an initiative to the Secretary of State’s office does not cause the initiative to fail to substantially comply with Arizona’s statutory requirement to submit to the Secretary “a full and correct copy of the text” of the initiative.
Rae Ann Rumery, John Skarhus, and Cartwright Elementary School District v. Maria Baier, No. CV-11-0358-PR, 2013 WL 85338 (Ariz. 2013)
On January 9, 2013, the Arizona Supreme Court held that a state statute diverting money from state trust lands to a trust management fund instead of the designated permanent fund violated Article 10, Section 7 of the Arizona Constitution.1 In 1910, Congress granted 10 million acres of land to Arizona to hold in trust for public purposes.2 According to Arizona’s Constitution, any proceeds from state trust land must be used in furtherance of a stipulated public purpose.3 In 2009, Arizona enacted Ariz. Rev. Stat. (“A.R.S”) Section 37-527, which proportioned some of the money derived from state trust lands to pay the costs of managing the land.4 Rae Ann Rumery, John Skarhus, and the Cartwright Elementary School District filed a lawsuit alleging that Section 37-527 violated Section 28 of the New Mexico-Arizona Enabling Act and Article 10, Section 7 the Arizona Constitution because it allocated state trust funds away from the land’s intended purpose.5 Baier, the Arizona State Land Commissioner, appealed the trial court’s ruling that Section 37-527 violated the Arizona Constitution.6 The Arizona Supreme Court affirmed the trial court’s decision, stating that Arizona may only use monies derived from state trust lands in accordance with the Arizona Constitution, even if the Constitution is silent as to how the state should fund the management of those lands.7
Proposition 121 would have amended the Arizona Constitution to replace publicly funded, partisan primary elections1 with privately funded, open primary elections in which all candidates would appear on the one primary ballot and the two candidates receiving the most votes on that ballot would advance to the general election, irrespective of political party. In Save Our Vote, Opposing C-03-2012 v. Bennett, No CV-12-0272-AP/EL, 2013 WL 57692 (Ariz. 2013), Plaintiffs political organizations and Arizona electors sought to enjoin the Secretary of State from placing Proposition 121 on the November 2012 general election ballot. They argued that Proposition 121 violated the separate amendment rule of Article 21, Section 1 of the Arizona Constitution2 in that it did not permit electors to vote separately on Proposition 121’s two alleged constitutional amendments: (1) the shift from a closed to an open primary election; and (2) the prohibition of public funding for primary elections.3 The Arizona Supreme Court was also called on to determine whether the petition signature sheets for the measure violated Ariz. Rev. Stat. Section 19-102(A), which requires, inter alia, petition signature sheets to include a description of the principle provisions of constitutional amendments.
The framework for qualifying expert medical testimony in Arizona is codified at Ariz. Rev. Stat. Section 12-2604. Recently interpreted by the Arizona Court of Appeals in Baker v. University Physicians Healthcare1 and under review by the Arizona Supreme Court, Section 12-2604 plays a critical role in defining the duty element of medical negligence. But faced with a poorly written statute, the Court of Appeals in Baker missed an opportunity to resolve a confusing yet crucial aspect of litigating malpractice claims in Arizona: expert witness qualification.
After an automatic appeal, the Arizona Supreme Court affirmed Fabio Gomez’s death sentence for his conviction for the December 1999 kidnapping, rape, and murder of Joan Morane. State v. Gomez, No. CR–10–0358–AP, 2012 WL 6061679, at ¶¶ 1, 44 (Ariz. 2012). Gomez alleged his death sentence was in error for three reasons: first, because the trial court had revoked his pro per status; second, his motion for new counsel was denied; and finally, because the State failed to present evidence that Morane’s murder met the elevated cruelty standard under Arizona law. Id. at ¶¶ 7, 18, 30. The statute requires the evaluation of any “especially heinous, cruel or depraved” circumstances when considering the imposition of a death sentence. A.R.S. § 13-751(F)(6) (2011).
In re Gen. Adjudication of All Rights to Use Water in the Gila River Sys. & Source, No. WC-11-0001-IR, 2012 WL 3966327
On September 12, 2012, the Arizona Supreme Court addressed another aspect of the ongoing Gila River and Little Colorado River General Stream adjudications. The adjudications are based on A.R.S. §§ 45-251-45-264, and a potential claimant is anyone who claims the right to use water from either of the river systems. The various claims have been joined in a mass litigation. This case is only one piece of a broader, decades-old dispute over some 96,000 claims for water from the two river systems. At issue in the litigation was the priority and extent of water rights for thousands of claimants in the two river systems.
Arizona Supreme Court Holds that Tattoos are Constitutionally Protected Speech Entitled to First Amendment Protection.
Coleman v. City of Mesa, 230 Ariz. 352, 284 P.3d 863 (2012)
Ryan and Laetitia Coleman applied for a permit to operate a tattoo parlor in Mesa, Arizona. City officials denied the application based partly on concerns that the parlor would be inappropriate for the neighborhood where it would be located. The Colemans sued the City, alleging that its denial of their application violated their rights to free speech, due process, and equal protection under the U.S and Arizona Constitutions. In Superior Court, the City successfully moved to dismiss the complaint for failure to state a claim upon which relief can be granted. The Arizona Court of Appeals reversed the Superior Court’s dismissal of the Colemans’ suit.
Administrative Law Judge Finds TUSD’s Mexican American Studies Program Illegal Under Arizona’s Ethnic Studies Law, Questions Remain About How Broadly the Law Should Be Interpreted
In the Fall 2011 Issue of the Arizona Law Review, I wrote1 that A.R.S. section 15-112, Arizona’s highly controversial “ethnic studies law,” would be unlikely to stop schools in the Tucson Unified School District (“TUSD”) from teaching Mexican American Studies courses. Since then, an administrative law judge has upheld the Arizona Superintendent of Public Instruction’s determination that these courses violate the law, and TUSD shuttered the Mexican American Studies program. The judge’s decision is the first to interpret the ethnic studies law, but it still leaves Arizona educators in the dark about what precisely the law prohibits.