The Latest Setback for Property Rights

In a 7-2 ruling, the U.S. Supreme Court upheld an Obama-era change to the way patents are challenged:

Justice Clarence Thomas wrote the court's majority opinion, rejecting contentions that issued patents are the type of rights that must be adjudicated only in the federal courts."

The decision to grant a patent is a matter involving public rights -- specifically, the grant of a public franchise," Thomas wrote. The review system "is simply a reconsideration of that grant, and Congress has permissibly reserved the PTO's authority to conduct that reconsideration."

In a statement at the web site of the Center for the Protection of Intellectual Property, Professor Adam Mossoff issued a statement on the ruling that reads, in part:

Image via Wikipedia.

For the first time, the Supreme Court holds that patents for new inventions are regulatory grants similar to monopoly grants for bridges or toll roads. The decision ignores the Supreme Court's own substantial case law over the past two centuries that patents are private property rights that secure the fruits of productive labors under the Constitution -- like all other property rights in homes, farms, and animals. Instead, the Court rules that the U.S. follows the original practice by English Kings and Queens who bestowed royal privileges on their subjects as "patent" grants, applying to U.S. patent owners the historical dictum that "what the government giveth, the government can taketh away."

In a prefatory note, the CPIP links to a couple of scholarly articles by Mossoff that were "heavily cited" in the dissenting opinion written by Neil Gorsuch. I can only add that laymen might also find helpful Mossoff's Townhall op-ed, "Patents Are Property Rights, Not A 'Bizarre Regulatory Lobby'."

-- CAV

A Big Blow Against Arbitrary Law?

George Will discusses a the recent 5-4 decision by the Supreme Court overturning a portion of immigration law, and argues that the decision can have wider ramifications for the federal bureaucracy:

Image via Pixabay.

Writing for the majority in a 5-4 decision -- and joined by Ruth Bader Ginsburg, Stephen Breyer and Sonia Sotomayor (with Gorsuch concurring in the judgment and much of the opinion) -- Elena Kagan wrote: The law's category, a "crime of violence," is so indeterminate ("fuzzy," she said) that deporting [James] Dimaya under it would violate the Constitution's "due process of law" guarantee.

Vague laws beget two evils that are related: They do not give citizens reasonably clear notice of what behavior is proscribed or prescribed. And they give -- actually, require of -- judges and law enforcement officials excessive discretion in improvising a fuzzy law's meaning.

Will argues further that vague laws also allow Congress to slough off responsibility for making law, ceding too much power to the federal bureaucracy. This decision can help reverse a very bad trend in this regard:

The principle Gorsuch enunciates here regarding one provision of immigration law is a scythe sharp enough to slice through many practices of the administrative state, which translates often vague congressional sentiments into binding rules, a practice indistinguishable from legislating. Gorsuch's principle is also pertinent to something pernicious concerning which he has hitherto expressed wholesome skepticism: "Chevron deference."

This is the policy (named for the 1984 case in which the Supreme Court propounded it) whereby courts are required to defer to administrative agencies' interpretations of "ambiguous" laws when the interpretations are "reasonable." Gorsuch has criticized this emancipation of the administrative state from judicial supervision as "a judge-made doctrine for the abdication of judicial duty."

Will notes that Gorsuch bucks a conservative trend of "broad judicial deference to decisions because they emanate from majoritarian institutions and processes," which strikes me as a welcome departure from the example of another conservative justice, the one who twice "saved" ObamaCare, the second time by just such an abdication. (Scroll down to the bullet for George Will.)

-- CAV

Standing Up for Independent Parenting

"Don't you know that hiding under a rock is the best way to avoid being hit by a meteorite?" (Image via Pixabay)

Over at Let Grow, where "free range parent" Lenore Skenazy has set up shop, is some advice for parents who wish to counteract today's widespread pressure to adopt a hypervigilant parenting style. Professor Barbara Sarnecka of the University of California-Irvine recommends three broad strategies: comparing commonly-exaggerated risks to other de minimis risks, shifting the focus of the discussion from avoiding risk to fostering independence, and reminding adults of relevant positive experiences from their own childhoods.

I think each strategy can be a valuable part of helping others re-calibrate how they assess risks, reconsider the propriety of doing so for others, or both. Sarnecka's discussion of the first tactic was on the money, and will probably also make anyone weary of a constant stream of ninnyish advice smile a little:

When you drove here today and you parked your car, did you choose your parking space based on the possibility that there could be snipers on the roofs of the buildings around you? Did you say, "Well if I park here, snipers on that building could get me ... but if I park here, the awning will shield me from snipers over there ..."

Probably not, right? Now, could you really be 100% sure that there weren't snipers on the buildings? No, because it's not impossible. But it's SO unlikely that you just don't worry about it. You would be nuts to plan your parking around it. [bold in original]

Many parents today are scolded or even faced with legal trouble for doing such once-commonplace things as leaving a child in a car for a short time, and this problem is worsening. It will take many of us standing up for ourselves when the opportunity arises for this to begin to change.

-- CAV

Friday Hodgepodge

Four Things

1. A software consultant describes a government software "project from hell". A little after noting that the project consisted of six million lines of code, he provides a couple of anecdotes, one being:

At some point end-users reported that "Load data from CD-ROM" did not work at all. This one took several weeks to sort out, but in the end the bug report was flagged as 'already solved', because data were indeed being loaded. The only point was that it took 7 straight days for 700 MBytes to get in. Patience is a virtue.

The whole bureaucratic setup screams featherbedding, but for the fact that average staff turnover time was "3 months, the legal time to leave your job in France." It warms the heart to know that pride -- or at least the desire for sanity -- can beat the temptation of job security for so many.

2. Do you have a common surname? If so, you can consult this map to see in how many states it ranks in the top three.

3. A couple of years ago, I got wind of a couple of once-common dietary items that have now been all but forgotten. We can now add yaupon tea, a drink, to the list that includes skirret and ground nuts.

Ilex vomitoria: It's not just for gardening anymore. (Image via Wikipedia

Cassina, or black drink, the caffeinated beverage of choice for indigenous North Americans, was brewed from a species of holly native to coastal areas from the Tidewater region of Virginia to the Gulf Coast of Texas. It was a valuable pre-Columbian commodity and widely traded. Recent analyses of residue left in shell cups from Cahokia, the monumental pre-Columbian city just outside modern-day St. Louis and far outside of cassina's native range, indicate that it was being drunk there. The Spanish, French, and English all documented American Indians drinking cassina throughout the American South, and some early colonists drank it on a daily basis. They even exported it to Europe.

One of the factors causing this drink to disappear was the small ... marketing ... problem caused by the Latin name assigned to the plant: Ilex vomitoria. Contrary to the name, the plant doesn't induce vomiting, but the association is certainly there. Interest in yaupon tea is only now making a tentative comeback.

4. Also at Gastro Obscura is an amusing piece on the commonality of family recipes that actually come from such sources as labels from common items:

When Meyer arrived, the sous chefs had a big bowl of potato salad that brought back memories of his grandmother. He tried it, smiled, and told the chefs, "That's exactly right." They grinned back at him mischievously. Eventually, Meyer broke and asked, "What's so funny?" A chef pulled out a jar of Hellman's mayonnaise and placed it on the table. Meyer looked at it, then realized that the secret recipe his grandmother had hoarded for years was on the jar. It was the official Hellman's recipe for potato salad.

But don't laugh too hard: Sometimes manufacturers change their products or recipes. The few people who notice this and make adjustments end up being the only ones who can make these things the way others have grown accustomed to.

-- CAV

This Is What a State-Run Economy Looks Like

An article at Reuters depicts in grisly detail the mass exodus of quality personnel from PDVSA, Venezuela's state-run oil company. For those workers whose pay remains appreciably above the cost of their commute, here is what awaits them:

Image of Alcatraz from Pixabay.

The company's ongoing decay is evident ... in the once polished office tower: Broken elevators, poor cafeteria food, empty desks in once-crowded divisions.

Maduro has overseen the arrest of dozens of high-level PDVSA executives since late last year, sometimes at the Caracas headquarters as shocked employees looked on. Workers now feel watched by supervisors and are loathe to make any business decision out of fear they will later be accused of corruption, the sources said.

PDVSA workers, often visibly thinner, sometimes surreptitiously hand out resumes to executives from private companies, according to a source at a foreign firm. [bold added]

The article makes too much of the fact that this outfit is being run by a military officer, saying that it is under "military rule." But taking orders from superiors is the essence of any "planned" economy. The fact that it feels more like a "barracks" just means that the velvet glove has slipped a little from the iron fist. In fact, even that description is too kind. Venezuela is a prison:

Some PDVSA offices now have lines outside with dozens of workers waiting to quit. In at least one administrative office in Zulia state, human resources staff quit processing out the quitters, hanging a sign, "we do not accept resignations," an oil worker there told Reuters. [bold added]

Bernie Sanders once said that "the American dream is more apt to be realized in ... places such as ... Venezuela." The above should give his supporters pause, but if it doesn't, there might be job openings for some of them.

-- CAV

He Reports, You Decide (If It's a Joke)

Years ago, wrapping up a post on Poe's Law, I stated:

Past a certain point, Poe's Law doesn't just describe a resemblance between the words of a "fundamentalist" and a jokester, but an identity: Depending on how well a given pronouncement is crafted to "fit in with" the overall mis-integration of a system that incorporates the arbitrary, the only difference between a frank statement and a joke will be in who is making it.

Thoughts like this kept going through my mind when I read a Yahoo News report by one Alexandre Grosbois about the upcoming changing-of-the-guard in Cuba. I'd say that the following quote quite well summarizes the facts on the ground over there:

"They are changing the government, but it's still the same kind, it's always going to be influenced by the Castros. Even if it's another man, it's always going to be a Castro government," said Ariel Ortiz, an unemployed 24-year-old in Havana.

That said, much of the rest of the piece smacks of disgraceful boot licking, coming as it does from someone who is free to write a report any way he pleases. Here's a taste:

The outgoing president will remain at the head of the Communist Party until its next congress in 2021 -- when he turns 90 -- time enough to ensure a controlled transition and to watch over his protege when, inevitably, old-guard communists challenge his reforms.

Cuban political scientist Esteban Morales said the two would likely work in tandem, with Castro continuing to act as the ideological figurehead, while [Miguel] Diaz-Canel concentrates on the "very complex and difficult" task of running the government.

The heir to the Castros will be faced with modernizing the economy at a time when Cuba's key regional ally Venezuela, its source of cheap oil, is stumbling through an acute economic crisis, and amid a resurgence of the US embargo under President Donald Trump.

As usual, socialism, the cause of the misery in Cuba and Venezuela, remains unmentioned. Venezuela's "economic crisis" might as well be the result of Donald Trump sticking pins into a voodoo doll of Nicolas Maduro; and in any event, he's being blamed for not saving the skins of that openly hostile regime. That passage is bad enough, but this is the one that reminded me of Poe's Law:

However, despite striving for a low-key transition, there's no getting away from the fact that this represents a monumental change in Cuba.

It will be the first time in almost six decades that the Cuban president will not be named Castro, will not be part of the "historic" generation of 1959, will not wear a military uniform and will not be the head of the Communist Party.

If elected, Diaz-Canel is expected to be able to make up for his lack of revolutionary pedigree with the support of Castro watching benevolently from his perch atop the all-powerful Communist Party.

Grosbois forgot to mention that it will also be the first time in six decades that the Cuban president will not have facial hair: Maybe that will make Ariel Ortiz more optimistic about his future employment prospects in the centrally "planned" economy.

Image via Wikipedia.

Were Grosbois a Cuban reporter, the above passage would rightly read as biting sarcasm, because we would know that he'd need cojones to even think about slipping it past censors, and then again about someone sharper-witted bringing it to Castro's benevolent attention. But Grosbois is in the employ of a Western news agency, so it does not. And were his admiration of Castro not so obvious, and his evasion or ignorance of the difference between slavery and freedom not shared by so many other journalists and intellectuals in the West, it would be a lot easier to laugh about his hunting around for reasons to call this non-event "monumental".

-- CAV

Lucas on Setting New Expectations

A manager asks "Evil HR Lady" Suzanne Lucas how to remedy a tardiness problem in his office. Her reply, which she essentializes as, "Make them believe you," is applicable in many situations, and is worth thinking about for that reason:

Image via Pixabay.

[P]resent the employee with two printed copies of the new policy, and ask them to sign both. Keep one for your files, and send the other one home with them.

They will not like this. Not one bit. Someone will likely test you out, and here's the critical part: You must follow through. You need to give them the unpaid suspension day, and you might need to fire an employee who pushes a third day, so start searching for new employees before you embark on this process. If you do not do this, your problem will continue because your employees won't believe you. [bold added]

Granted, firing isn't always an option, but the basic advice is very good and memorably put. For example, as a parent, you should make sure your kids will believe it when you offer a potential reward or punishment. Conversely, don't make an offer or a threat you can't back up. I have found that, unlike other parents I know, I can take my kids to a store and leave with just what I came to get simply by setting expectations beforehand. (For example: We're here to get something Mom needs for her trip, and that's it.)

Lest you think I'm sore from slapping myself on the back, be aware that the real value of the piece for me was that Lucas shows how to create belief in a situation where one doesn't have it for whatever reason. In my case, I've not made keeping the house tidy a priority and I plan to change it now that my son is old enough to understand picking up a mess. I'll clearly need my own version of laying down the law there. Yes, it's helpful to know that my habit of setting expectations and sticking to them is good, once established. But Lucas also helped me see that my intuition is good: I was going to keep mostly quiet about the issue until I knew in more detail what I want and what incentives and punishments I would use.

-- CAV