Dedicated Originalist Aileen Cannon Can’t Be Bothered To Learn Who These Founding Fathers People Are – Above the Law

Aileen
Cannon

Judge
Aileen
Cannon
really
wanted
to
rid
herself
of
the
criminal
case
involving
her
professional
patron
Donald
Trump
lifting
boxes
and
boxes
of
classified
documents
of
profound
interest
to
America’s
adversaries
and
tossing
them
in
front
of
his
toilet
when
he
wasn’t
waving
them
around
in
front
of
random
visitors.
So,
armed
with
a
bonkers
concurrence
from
Justice
Clarence
Thomas

that
even
Sam
Alito
thought
amounted
to
an
Appeal
to
Heaven
too
far


Cannon
hammered
out
nearly
100
pages

of
gloop
about
how
special
counsels
can’t
be
real
because

the
history
and
tradition
of
the
Appointments
Clause

trumped
the
actual
lived
history
and
tradition
of
special
counsels.

Whatever.
Cannon
has
long

identified
as
an
Originalist
,
and
the
first
rule
of
Originalism
is
that
actual
history
is
for
suckers.
It’s
why
they’ve
created
a
whole
cottage
industry
of
publishing

flimsy
“alternative
facts”-based
history
in
student-edited
journals

for
judges
to
cite
when
peer-reviewed
scholarship
doesn’t
live
up
to
right-wing
fan
fiction.
But
a
lot
of
the
public
might
not
grasp
how
divorced
“Originalism”
is
from
a
serious
intellectual
effort
to
understand
the
“original”
history
behind
the
Constitution.

Cannon
is,
also,
one
of
several
conservative
federal
judges
who

suck
up
luxury
vacations
funded
by
right-wing
groups

and
then

fail
to
disclose
these
gifts
.
And
despite
being
called
out
for
this,
Cannon
has
done
it
again,
with

ProPublica
identifying
another
conservative
junket
that
she
managed
to
not
put
on
her
forms
.

But
this
paragraph
jumped
out:

Cannon’s
annual
disclosure
form
for
2023,
which
was
due
in
May
and
offers
another
chance
to
report
gifts
and
reimbursements
from
outside
parties,
has
yet
to
be
posted.
(Cannon
reported
the
two
Montana
trips
on
her
annual
disclosure
forms,
but
the
required
30-day
privately
funded
seminar
reports
had
not
been
posted.
In
2021,
Cannon
incorrectly
listed
the
school
as
“George
Madison
University.”)

Who
can
forget
Founding
Father
George
Madison?

Cannon
intends,
of
course,
to
reference
George
Mason,
the
anti-Federalist
whose
work
inspired
the
Bill
of
Rights
and
whose
name
graces
the
university
attempting
to
posture
itself
as
a
right-wing
outpost

complete
with

accepting
a
sketchy
donation

to

rename
its
law
school
ASS
Law

in
an
unwittingly
appropriate
homage
to
Antonin
Scalia.
As
opposed
to
James
Madison,
the
Federalist
Papers
contributor
and
president
whose
name
graces
the
university
that
won
the
Sun
Belt
conference
to
get
into
March
Madness.

This
might
seem
like
a
nitpick,
and
in
a
sense
it
is.
Madisonian
malapropisms
are
understandable.
But
on
the
other
hand,
someone
who
cites
Framers
as
a
source
of
second-hand
credibility
probably
should
take
care
to
never
betray
even
the
hint
that
all
that
talk
about
divining
meaning
from
a

deep
and
thorough
mastery
of
the
Founding

might
be,
you
know,
disingenuous
bullshit.


Judge
Aileen
Cannon
Failed
to
Disclose
a
Right-Wing
Junket

[ProPublica]


Earlier
:

Aileen
Cannon
Dismisses
Trump
Classified
Documents
Case


Supreme
Court
Justices
Aren’t
The
Only
Ones
Failing
To
Report
Lavish
Trips




HeadshotJoe
Patrice
 is
a
senior
editor
at
Above
the
Law
and
co-host
of

Thinking
Like
A
Lawyer
.
Feel
free
to email
any
tips,
questions,
or
comments.
Follow
him
on Twitter or

Bluesky

if
you’re
interested
in
law,
politics,
and
a
healthy
dose
of
college
sports
news.
Joe
also
serves
as
a

Managing
Director
at
RPN
Executive
Search
.

There’s ‘Heightened’ Interest In U.S. And U.K. Biglaw Mergers – Above the Law



Ed.
note
:
Welcome
to
our
daily
feature,

Quote
of
the
Day
.


There
have
been
a
number
of
direct
outreach
inquiries
from
U.K.
to
U.S.
firms.
While
that’s
not
necessarily
anything
new,
per
se,
we
have
seen
a
heightened
level
for
that
in
the
last
year.




Kristin
Stark,
a
consultant
with
Fairfax
Associates,
in
comments
given
to
the

American
Lawyer

on
the
likelihood
of
more
cross-border
combinations
being
completed
in
the
near
term
in
the
wake
of
the

A&O
Shearman
merger
,
which
joined
U.K.
firm
Allen
&
Overy
and
U.S.
firm
Shearman
&
Sterling.
Kent
Zimmermann,
a
consultant
with
Zeughauser
Group,
said,
“There
are
Magic
Circle
and
Silver
Circle
firms
that
very
much
have
this
option
on
the
table,
and
for
the
right
opportunity
and
on
the
right
terms,
are
ready
to
pull
the
trigger.”
Zimmerman
added
that
his
company
is
“advising”
some
of
those
firms,
and
that
they’re
“talking
to
each
other.”



Staci ZaretskyStaci
Zaretsky
 is
a
senior
editor
at
Above
the
Law,
where
she’s
worked
since
2011.
She’d
love
to
hear
from
you,
so
please
feel
free
to

email

her
with
any
tips,
questions,
comments,
or
critiques.
You
can
follow
her
on

X/Twitter

and

Threads

or
connect
with
her
on

LinkedIn
.

Chief Justice John Roberts Is Not The Man Liberals Want Him To Be – Above the Law

(Photo
by
Leah
Millis-Pool/Getty
Images)

Chief
Justice
John
Roberts
has
spent
most
of
his
time
on
the
Supreme
Court
enjoying
a
reputation
as
a
centrist.
If
mainstream
Court
watchers
were
honest
with
themselves,
they’d
know
that
Roberts’s
“moderate”
rep

based
largely
on
his
refusal
to
overturn
Obamacare


was
always
hogwash
.
But
a
report
from
Jodi
Kantor
and
Adam
Liptak
in
Sunday’s

New
York
Times

puts
none
too
fine
a
point
on
Roberts
as
a
devotee
of
Donald
Trump.
The
article
dives
into
three
cases
during
the
most
recent
Supreme
Court
Term,
all
written
by
Roberts,
and
all
on
Donald
Trump’s
personal
wishlist.

It’s
a
pretty
damning
look
at
what
happened
behind
the
scenes
at
the
Court
this
past
Term.
Take
the
immunity
case,

Trump
v.
United
States
.
In
February,
before
the
case
was
before
the
Court,
Roberts
was
already
sharing
how
he
thought
the
Court
*would*
rule.

The
chief
justice’s
Feb.
22
memo,
jump-starting
the
justices’
formal
discussion
on
whether
to
hear
the
case,
offered
a
scathing
critique
of
a
lower-court
decision
and
a
startling
preview
of
how
the
high
court
would
later
rule,
according
to
several
people
from
the
court
who
saw
the
document.

The
chief
justice
tore
into
the
appellate
court
opinion
greenlighting
Mr.
Trump’s
trial,
calling
it
inadequate
and
poorly
reasoned.
On
one
key
point,
he
complained,
the
lower
court
judges
“failed
to
grapple
with
the
most
difficult
questions
altogether.”
He
wrote
not
only
that
the
Supreme
Court
should
take
the
case

which
would
stall
the
trial

but
also
how
the
justices
should
decide
it.

“I
think
it
likely
that
we
will
view
the
separation
of
powers
analysis
differently”
from
the
appeals
court,
he
wrote.
In
other
words:
grant
Mr.
Trump
greater
protection
from
prosecution.

Moreover,
the
Times
reports
Roberts
“froze
out”
the
liberal
justices
on
the
Court
as
they
tried
to
build
consensus.

In

Fischer
v.
United
States
,
the
Chief
made
a
shocking
switcheroo.
He
took
the
majority
opinion
away
from
Samuel
Alito
and
wrote
it
himself.

Outside
the
court,
the
switch
went
undetected.
Inside,
it
caused
surprise.
To
change
authors
without
the
judgment
itself
shifting
was
a
break
from
court
procedure,
several
court
insiders
said.

In
interviews,
Supreme
Court
scholars
agreed.
“Can
I
tell
you
an
instance
when
it’s
happened?
No,”
said
Paul
J.
Wahlbeck,
a
professor
at
George
Washington
University
who
has
studied
opinion
assignments.

This
may
have
been
a
shallow
attempt
to
save
the
credibility
of
the
Court.
At
the
time,
Alito
was

catching
flack

for
flying
flags
associated
with
the
January
6th
riots
at
his
homes.
Perhaps
Roberts
thought
that
letting
Alito
write
that
January
6th
defendants
should
be
let
off
the
hook
was
a
little
uncouth.
But
don’t
worry

the
Roberts-penned
case
held
pretty
much
what
you’d
have
expected
Alito
to
write:
that
prosecutors
overreached
in
charging
some
perpetrators
of
the
January
6th
coup
attempt.

Kantor
and
Liptak
also
reveal
that
the
unsigned
decision
in

Trump
v.
Anderson
,
which
held
Colorado
cannot
kick
Trump
off
their
presidential
ballot
on
account
of
the
14th
Amendment’s
ban
on
insurrectionists
holding
office,
was
also
written
by
none
other
than
Roberts.

None
of
these
moves
are
the
machinations
of
a
centrist.
They
are
the
calculated
plays
of
someone
actively
trying
to
push
the
nation’s
jurisprudence
to
the
right

beyond
what
the

majority
of
Americans
support
.

With
Roberts
clearly
dethroned
from
his
ostensible
role
as
the
“very
serious
moderate”
on
the
Court,
it
*should*
supercharge
the
efforts
to
reform
the
institution.
But
even
before
this
exposé,
the
hunt
was
already
on
for
a
“new”

swing
vote
on
the
Court

that
can
be
pandered
to
in
order
to

stop
the
absolute
worst

SCOTUS
power
grabs.
It’s
like
we

never
learn
.


Earlier:


John
Roberts
Will
Not
Save
Us




Kathryn Rubino HeadshotKathryn
Rubino
is
a
Senior
Editor
at
Above
the
Law,
host
of

The
Jabot
podcast
,
and
co-host
of

Thinking
Like
A
Lawyer
.
AtL
tipsters
are
the
best,
so
please
connect
with
her.
Feel
free
to
email

her

with
any
tips,
questions,
or
comments
and
follow
her
on
Twitter

@Kathryn1
 or
Mastodon

@[email protected].

You Could Make A Playlist Of All The Musicians Who Sued Trump For Playing Their Music – Above the Law

(Photo
by
David
Becker/Getty
Images)

If
you’ve
been
to
a
Trump
rally,

how’s
Foley
&
Lardner
treating
you
?
Everyone
else
has
heard
their
snippits
of
talking
points
and
applause
from
a
rally
recording,
but
that
might
be
all
you’ll
hear
there
soon
enough.
Many
musicians
and
their
estates
have
issues
cease
and
desist
letters
or
lawsuits
over
their
music
being
played
for
Donald
Trump’s
campaign
trail.
The
most
recent
loss
was
dealt
by
Eddie
Grant.

The
Guardian

has
coverage:

Donald
Trump
has
lost
a
legal
battle
with
the
singer
Eddy
Grant
over
using
his
1983
song
Electric
Avenue
in
a
2020
ad
without
permission.

The
40-second
clip

an
animation
of
Joe
Biden
travelling
in
a
railroad
cart
while
a
Trump-Pence
campaign
train
passes
at
high
speed

was
viewed
more
than
13.7m
times
on
Twitter
before
it
was
removed,
according
to
Grant’s
lawsuit…In
a
Manhattan
court,
a
federal
judge
ruled
that
Trump
breached
Grant’s
copyright
and
is
liable
for
damages
and
Grant’s
legal
fees.

One
of
Grant’s
lawyers,
Brett
Van
Benthysen,
shared
that
they
got
“100%”
of
what
they
were
looking
for
from
the
lawsuit.

We’ve
never
been
big
on
playlists
but
this
sheer
number
of
musical
Ls
is
worth
celebrating.
What
better
way
to
commemorate
Trump’s
list
of
musical
woes
than
by
creating
a
playlist!

Hat
tip
to

Benjamin
Leatherman
‘s
thorough
rundown
of
songs
on
the
no-no
list.

This
is
by
no
means
a
complete
list
for
two
reasons.
The
first
is
that
the
list
will
likely
grow
over
the
next
few
months
of
campaigning.
The
second
is
that
several
artists
have
issued
wholesale
prohibitions
on
Trump
playing

any

of
their
songs.
Here
are
a
few
examples:

For
what
it’s
worth,
Trump
and
his
campaign
buddies
have
great
taste
in
music.
If
only
the
musicians
liked
him
back.
🙁


Donald
Trump
Loses
Legal
Fight
Over
Using
Eddy
Grant
Song
Without
Permission

[The
Guardian]

Here’s
Every
Musician
With
A
Beef
Or
Lawsuit
Against
Donald
Trump

[Phoenix
New
Times]



Chris
Williams
became
a
social
media
manager
and
assistant
editor
for
Above
the
Law
in
June
2021.
Prior
to
joining
the
staff,
he
moonlighted
as
a
minor
Memelord™
in
the
Facebook
group Law
School
Memes
for
Edgy
T14s
.
 He
endured
Missouri
long
enough
to
graduate
from
Washington
University
in
St.
Louis
School
of
Law.
He
is
a
former
boatbuilder
who
cannot
swim, a
published
author
on
critical
race
theory,
philosophy,
and
humor
,
and
has
a
love
for
cycling
that
occasionally
annoys
his
peers.
You
can
reach
him
by
email
at [email protected] and
by
tweet
at @WritesForRent.

Top 30 Law School Creates Special Beyoncé Parody Video For Constitution Day – Above the Law

(Photo
by
Michael
Buckner/Billboard
via
Getty
Images)

Today,
our
fine
nation
celebrates

Constitution
Day
,
a
federal
holiday
recognizing
the
adoption
of
the
U.S.
Constitution
as
well
as
the
privileges
and
responsibilities
of
U.S.
citizenship.

Once
again,
the
Texas
A&M
University
School
of
Law
is
helping
lawyers
across
the
country
observe
this
holiday
with
a
parody
video,
and
this
time,
it’s
none
other
than
Beyoncé’s

“Texas
Hold
‘Em.”

(And
this
is
an
absolutely
perfect
time
for
us
to
remind
our
law
school
readers
about
our
upcoming
16th
annual

law
revue
video
contest
.
Stay
tuned
this
spring
for
instructions
on
how
to
submit
your
videos.)

Check
out
the
video
below:

Boots…
spurs…
torts.
Congrats,
Texas
A&M,
on
yet
another
entertaining
Constitution
Day
video.
Gig
’em!



Staci ZaretskyStaci
Zaretsky
 is
a
senior
editor
at
Above
the
Law,
where
she’s
worked
since
2011.
She’d
love
to
hear
from
you,
so
please
feel
free
to

email

her
with
any
tips,
questions,
comments,
or
critiques.
You
can
follow
her
on

X/Twitter

and

Threads

or
connect
with
her
on

LinkedIn
.

Bar Exam Offers Extra Credit With A Catch – Above the Law

Remember
when
the

National
Conference
of
Bar
Examiners
started
offering
law
grads
$1500

to
test
drive
their
new
NextGen
Bar
Exam?
That’s
all
well
and
good
when
you’re
a
“non-profit”
with

$151
million
or
so
in
net
assets
lying
around
,
but
what
if
you’re
a
state
bar
writing
a
new
test
(because
you’re
broke
from
having
given
NCBE
all
those
millions
of
dollars
for
years)?

California
announced
that
they’d

cut
the
cord
with
NCBE
earlier
this
year

with

Kaplan
picking
up
the
task

of
preparing
a
licensing
exam
for
the
state.
The
longtime
bar
prep
company
has
to
leave
the
prep
business
in
California,
but
between
its
long-term
cheaper
test
and
providing
testing
locations
to
alleviate
the
burden
on
the
state
bar
to
rent
out
massive
venues
(with
no
heat!
),
switching
to
Kaplan
should
get
the
state
bar’s
licensing
division
out
of
the
red.

But
in
the
meantime,
someone
needs
to
take
those
test
questions
and
California
doesn’t
have
$1500
a
head
lying
around.


Screenshot 2024-09-17 at 9.45.44 AM
Actual
extra
credit!
Telling
me
that
it
can
earn
an
additional
40
points
is
sort
of
like
discussing
temperature
in
celsius.
Is
40
a
lot?
A
little?
Well,
the
California
bar
is
traditionally
scored
out
of
2000
and
while
2
percent
may
not
seem
like
much
at
first
blush,
the
difference
between
automatically
passing
and
automatically
failing
was
a
mere
50
points
(the
gap
from
1440
to
1390),
so
40
points
can’t
alone
take
a
fail
to
pass,
but
it
can
get
a
fail
into
the
second
pass
read.

But
it’s
one
thing
to
make
extra
credit
available
to
everyone,
but
given
that
the
examiners
don’t
intend
to
grade
everyone’s
extra
credit,
they’ve

limited
participation
in
this
phase
:

There
are
limited
spots
available;
the
State
Bar
may
allow
all
eligible
applicants
to
participate
or
may
randomly
select
from
those
who
applied.
Participants
will
also
be
asked
whether
they
prefer
to
participate
in
the
exam
experiment
remotely
online
on
their
own
computer
or
in
person
at
test
centers
where
computers
will
be
provided.
Due
to
limited
space,
an
applicant’s
preference
is
not
guaranteed.

That
makes
the
extra
credit
significantly
more
shady.
Just
force
everyone
to
do
the
experimental
questions,
grade
a
sample
of
those,
and
move
on.
It
even
avoids
any
selection
bias
problems
that
might
come
up
when
relying
on
people
choosing
to
opt
into
an
experiment.
It
sucks
for
the
graduates
having
to
waste
time
fretting
about
a
question
that
doesn’t
count,
but
it’s
better
than
arbitrarily
giving
one
applicant
access
to
points
that
could
earn
them
a
license
and
denying
that
opportunity
to
a
similarly
situated
applicant.


Earlier
:

Would
You
Take
The
Bar
If
They
Paid
You
Like
A
4th
Year
Associate?


NCBE
Messed
Up,
Bro,
California
Kicked
Them
Out
Of
The
Bar


Kaplan
Steps
In
To
Dig
California
Bar
Office
Out
Of
Bankruptcy
Hole

Writing The Kind Of Legal Story You Want To Read – Above the Law

In
this
episode,
I
chat
with

Lori
B.
Duff
,
author
of
the
upcoming
book,
Devil’s
Defense
.”
Lori
shares
candid
insights
about
her
accidental
journey
into
law,
her
love
for
trial
work,
and
the
striking
realism
that
underpins
her
novel.
Discover
her
struggles
balancing
a
legal
career
with
writing,
the
hilarious
challenges
of
introducing
technology
to
courts
during
COVID,
and
her
advice
for
lawyers
with
creative
passions.
This
episode
offers
a
compelling
portrait
of
a
small-town
lawyer’s
life
and
the
passion
driving
her
literary
journey.


Highlights

  • Lori’s
    decision
    to
    go
    to
    law
    school.
  • The
    connection
    between
    performance
    and
    trial
    work.
  • Building
    a
    practice
    in
    a
    small
    town.
  • Incorporating
    small-town
    southern
    life
    in
    “Devil’s
    Defense.”
  • Realistic
    portrayal
    of
    legal
    practice
    in
    the
    book.
  • Impact
    of
    politician’s
    confirmation
    hearing
    on
    Lori’s
    writing.
  • Developing
    the
    “Fisher
    At
    Law”
    series.
  • Balancing
    writing
    with
    legal
    practice.
  • Impact
    of
    COVID
    on
    legal
    practice
    and
    Lori’s
    role
    in
    the
    state-level
    response.
  • Frustrations
    with
    technology
    adoption
    in
    the
    legal
    field.
  • Technology’s
    lasting
    implications
    in
    law
    post-COVID.
  • Navigating
    from
    conception
    to
    publication
    as
    an
    author.
  • Importance
    of
    finding
    time
    for
    personal
    passions.

The
Jabot
podcast
is
an
offshoot
of
the
Above
the
Law
brand
focused
on
the
challenges
women,
people
of
color,
LGBTQIA,
and
other
diverse
populations
face
in
the
legal
industry.
Our
name
comes
from
none
other
than
the
Notorious
Ruth
Bader
Ginsburg
and
the
jabot
(decorative
collar)
she
wore
when
delivering
dissents
from
the
bench.
It’s
a
reminder
that
even
when
we
aren’t
winning,
we’re
still
a
powerful
force
to
be
reckoned
with.

Happy
listening!




Kathryn Rubino HeadshotKathryn
Rubino
is
a
Senior
Editor
at
Above
the
Law,
host
of

The
Jabot
podcast
,
and
co-host
of

Thinking
Like
A
Lawyer
.
AtL
tipsters
are
the
best,
so
please
connect
with
her.
Feel
free
to
email

her

with
any
tips,
questions,
or
comments
and
follow
her
on
Twitter

@Kathryn1
 or
Mastodon

@[email protected].

3 More Questions For A Patent Podcast Pro (Part I) – Above the Law

It
is
great
being
back
after
a
summer
hiatus
for
this
column.
I
hope
everyone
in
this
readership
had
a
pleasant
summer
and
is
as
invigorated
as
I
am
to
end
this
time
off
on
a
positive
note

both
personally
and
professionally.
To
get
us
started,
I
am
very
pleased
to
bring
to
this
audience
a
follow-on
audience
with
noted
IP
personality

and
one
of
my
favorite
people
in
this
industry


Eli
Mazour
.
Long-time
readers
may
recall
my
2018

interview

with
Eli,
where
we
discussed
the
start
of
his
Clause
8
podcast
series,
which
he
launched
alongside
his
patent
prosecution
and
counseling
practice
at
a
boutique
IP
firm.
Let’s
get
reintroduced
to
Eli
and
visit
with
him
about
the
evolution
of
both
his
practice
and
the
Clause
8
podcast
series.

As
you
might
suspect
from
his
podcasting
exploits,
Eli
loves
talking
to
people
about
patents.
That
love
of
talking
about
patents

along
with
his
belief
in
the
importance
of
America’s
patent
system

led
him
to
start
the
Clause
8
podcast. 
The
Clause
8
podcast
features
interviews
with
the
most
interesting
members
of
the
IP
community,
including
former
judges,
academics,
and
practitioners.
As
you
will
see
below,
Clause
8
has
expanded
into
Eli’s
new
offering,
the
Voice
of
IP
newsletter
and
podcast
series.

In
his
practice,
Eli
relies
on
his
intricate
knowledge
of
how
the
patent
system
operates
to
help
clients
build
valuable
patent
portfolios
that
advance
their
business
goals
as
a
patent
attorney
and
of
counsel
at

Foley
&
Lardner

Clients
seek
Eli
out
particularly
for
his
experience
in
obtaining
license-ready,
litigation-grade
standard
essential
patents
(SEPs),
preparing
corresponding
claim
charts,
and
avoiding
and
overcoming
patent
eligibility
issues
for
software
and
fintech-related
inventions.
He
is
also
experienced
in
devising
and
implementing
best
practices
for
growing
global
patent
portfolios,
and
developing
corporate
policies
and
positions
related
to
IP.
His
goal
is
to
be
the
first
call
for
clients
facing
new
patent-related
issues.
Eli
also
helps
clients
evaluate
existing
patent
portfolios
and
has
experience
with
licensing
negotiations,
clearances,
opinions,
and
enforcement.
Lastly,
Eli
is
frequently
sought
out
for
his
insights
on
how
to
navigate
and
impact
patent
policy,
including
legislative
developments
and
changes
at
the
USPTO.

I
very
much
welcome
the
opportunity
to
share
Eli’s
insights
once
again
with
this
audience.
As
usual,
I
have
added
some
brief
commentary
to
Eli’s
answer
to
my
first
question
below,
but
have
otherwise
presented
his
answer
as
he
provided
it.


Gaston
Kroub:

How
has
the
Clause
8
interview
series
evolved
into
your
new
effort
Voice
of
IP?


Eli
Mazour:

I
started
Clause
8
primarily
to
share
entertaining
conversations
with
the
most
interesting
people
in
the
IP
field
(like
you!).
Also,
I
felt
that
too
much
of
the
public
conversation
about
patents
was
driven
by
the
“patent
troll”
narrative.
I
hoped
to
play
a
small
part
in
counteracting
that.
I
picked
the
title
Clause
8
specifically
as
a
reminder
that
IP
rights
were
rooted
in
the
Constitution
because
the
founders
appreciated
their
importance.

Because
of
the
podcast,
I
got
to
know
people
from
across
the
patent
spectrum.
This
led
me,
somewhat
to
my
surprise,
to
become
much
more
empathetic
to
all
their
views,
including
those
of
inventors
who
think
the
patent
system
is
completely
broken,
corporate
IP
leaders
worried
about
disincentivizing
innovation
in
America,
big
tech
lobbyists
dismayed
by
ever-evolving
patent
monetization
strategies,
and
policy
makers
influenced
very
differently
by
those
divergent
views.

So,
my
focus
shifted
to
using
Clause
8
to
provide
a
platform
for
all
those
voices
so
that
everyone
in
the
IP
field
could
gain
a
good
faith
appreciation
of
those
different
viewpoints.
I
also
love
telling
stories
of
resilience
and
innovation
related
to
the
field.

Over
time,
I
was
heartened
to
learn
how
many
listeners

especially
in-house
counsel
focused
on
devising
long-term
patent
strategies
and
impacting
IP
policy

rely
on
Clause
8
for
practical
advice
and
insights
about
the
forces
shaping
patent
policy
developments.

Those
guests
and
listeners
often
shared
news,
perspectives,
and
questions
with
me
that
I
didn’t
see
covered
elsewhere.
Occasionally,
that
would
spur
me
to
do
a
podcast
episode
based
on
a
related
topic.
More
often,
those
topics
didn’t
really
fit
into,
warrant,
or
were
too
fleeting
for
a
podcast
episode.
Personally,
I
was
also
bored
by
IP
news
coverage
that
consisted
of
daily
updates
about
lateral
moves
and
painfully
incremental
developments
in
ongoing
litigation
matters.
I
heard
similar
complaints
from
others
in
the
field
about
the
barrage
of
irrelevant
news.

That
led
me
to
the
idea
of
starting
the
Voice
of
IP
newsletter
to
share
the
interesting
IP-related
information
I
came
across
and
stay
in
touch
with
listeners
between
seasons
of
Clause
8.
My
goal
is
to
try
to
zoom
out
and
focus
on
IP
news
that
matters,
that
provides
practical
insights
about
the
current
and
future
state
of
IP
for
patent
practitioners,
innovators,
and
policy
makers.


GK
:
Anyone
who
has
practiced
IP
law
knows
that
it
is
a
field
that
is
constantly
progressing.
To
some
extent,
the
traditional
legal
news
media
and
IP-specific
efforts
try
their
best
to
provide
comprehensive
views
into
important
developments.
At
the
same
time,
there
is
always
room
for
intelligent
coverage
of
the
space,
making
Eli’s
expansion
of
the
Clause
8
podcast
experience
into
the
Voice
of
IP
newsletter
a
welcome
one.
We
can
expect
that
Eli’s
learned
perspective,
coupled
with
his
deft
determinations
of
what
is
interesting
or
warrants
further
discussion
in
the
IP
space,
will
make
Voice
of
IP
a
must-read
for
practitioners
across
the
entire
spectrum
of
patent
practice.

We
will
continue
with
Eli’s
answers
to
questions
2
and
3
next
week.
In
the
meantime,
please
take
the
opportunity
to
sign
up
for
Eli’s

Voice
of
IP

newsletter
and
podcasts.

Please
feel
free
to
send
comments
or
questions
to
me
at

[email protected]

or
via
Twitter:

@gkroub
.
Any
topic
suggestions
or
thoughts
are
most
welcome.




Gaston
Kroub
lives
in
Brooklyn
and
is
a
founding
partner
of




Kroub,
Silbersher
&
Kolmykov
PLLC
,
an
intellectual
property
litigation
boutique,
and 
Markman
Advisors
LLC
,
a
leading
consultancy
on
patent
issues
for
the
investment
community.
Gaston’s
practice
focuses
on
intellectual
property
litigation
and
related
counseling,
with
a
strong
focus
on
patent
matters.
You
can
reach
him
at 
[email protected] or
follow
him
on
Twitter: 
@gkroub.

“Dexter Nduna Did Not Graduate… Anyone Can Buy And Wear A Gown”

Nduna,
who
serves
as
the
chairperson
for
resource
mobilization
and
revenue
generation
in
the
ZANU
PF
central
committee,
reportedly
failed
several
modules
of
his
law
degree,
preventing
him
from
graduating.

As
reported
by
The
NewsHawks,
Nduna
requested
a
remarking
of
his
exams,
alleging
that
he
was
being
targeted
due
to
his
political
affiliation,
but
his
appeal
was
unsuccessful.

As
a
result,
he
did
not
receive
any
results
transcript
indicating
that
he
had
completed
and
passed
his
modules,
nor
did
he
obtain
a
certificate
on
graduation
day
like
the
other
graduates.

It
is
reported
that
Nduna
paid
the
graduation
fee
and
acquired
a
gown,
but
he
merely
sat
in
the
audience
rather
than
joining
his
graduating
class.

A
veteran
lecturer
from
the
UZ
Faculty
of
Law
described
Nduna
as
a
“comical
spectator”
attempting
to
mislead
the
public
with
his
antics.
Said
the
lecturer:

It’s
common
cause
he
did
not
graduate.
Paying
a
graduation
fee
and
wearing
a
gown
during
a
graduation
ceremony
does
not
mean
he
graduated.
Those
are
just
antics,
not
full
academic
and
graduation
processes.

The
fact
is
he
was
not
on
the
graduation
book,
he
did
not
get
a
transcript
of
results
(he
failed
some
modules)
and
was
not
awarded
a
certificate
at
the
graduation
ceremony.

This
means
that
he
did
not
graduate
like
others
in
his
class.
We
have
seen
what
he
posted
on
social
media,
but
he
did
not
post
his
results
transcript
and
certificate
which
would
provide
concrete
proof
that
he
finished
his
studies,
passed
and
graduated.

Anyone
can
buy
and
wear
a
gown,
and
then
sit
next
to
those
graduating
without
him
or
her
actually
graduating.
Those
are
just
antics.

The
university
will
only
get
concerned
and
act
if
he
posts
a
fake
transcript
and
certificate.
As
it
is,
there
is
no
real
issue
because
it’s
clear
he
didn’t
graduate.

The
report
also
alleges
that
seven
students
from
the
Faculty
of
Veterinary
Science
graduated
after
their
marks
were
altered
by
their
lecturers
at
the
request
of
the
university’s
academic
leaders.

Meanwhile,
Buhera
West
legislator
Tafadzwa
Mugwadi
(ZANU
PF),
who
previously
served
as
the
party’s
information
and
publicity
director,
successfully
graduated
with
a
law
degree
on
Friday.

What is safe for whom? Negotiating new technologies under conditions of uncertainty


This
is
the
third
blog
in
a
short
series
discussing
the
new
book



Navigating
Uncertainty:
Radical
Rethinking
for
a
Turbulent
World
.
The
third
chapter
looks
at
a
range
of
technologies

AI,
driverless
cars,
energy
systems
and
so
on,
but
focuses
especially
on
the
debate
about
GM
crops
in
the
late
90s/early
2000s,
something
I
worked
on
at
the
time.

In
particular,
the
chapter
explores
how
attempts
to
close
down
risk
through
a
so-called
‘science-based’
approach
acted
to
exclude
a
whole
array
of
public
concerns,
more
centred
on
uncertainties
(about
impacts
on
health,
biodiversity,
as
well
as
wider
questions
of
ownership
and
control
in
the
food
system).


Biotechnology
battles

In
the
late
1990s
a
huge
debate
erupted
around
GM
crops.
As
the
book
explains,
“In
the
UK
it
was
especially
tense.
The
new
Labour
government
seemed
divided
on
which
way
to
go:
follow
the
Americans
and
encourage
the
commercialisation
of
the
new
crops
or
take
the
more
precautionary
stance
of
the
rest
of
the
European
Union.
Prime
Minister
Tony
Blair
with
his
science
minister
Lord
Sainsbury
were
gung-ho.
Science
showed
that
these
new
technologies
were
the
way
forward,
they
argued.
Others
were
more
sceptical,
reflecting
a
wider
public
disquiet
about
the
potential
risks
of
such
crops.
There
was
a
big
divide,
reflecting
deep
uncertainties
around
how
such
technologies
would
affect
people’s
health,
the
environment,
trade
relations
and
wider
food
security….

In
October
1999
we
released
a
report
– The
Politics
of
GM
Food:
Risk,
Science
and
Public
Trust
 –
which
was
based
on
extensive
research
by
the
Global
Environmental
Change
programme
of
the
UK’s
Economic
and
Research
Council,
which
I
was
co-director
of
at
the
time.
The
then
environment
minister,
Michael
Meacher,
was
dragged
into
the
media
studios
to
debate
the
findings
on
the
BBC
Today
Programme
among
others.
Unlike
some
of
his
colleagues
in
government,
he
was
remarkably
balanced.
Along
with
the
minister
in
the
Cabinet
Office,
Mo
Mowlam,
he
understood
the
importance
of
thinking
about
the
uncertain
consequences
of
a
new
technology
and
bringing
the
public
along
with
any
government
decision.
Aligning
with
a
Europe-wide
commitment
to
the
‘precautionary
principle’
and,
unlike
the
Americans,
accepting
that
there
was
no
‘substantial
equivalence’
between
GM
crops
and
others
produced
by
different
breeding
processes,
the
UK
government
eventually
upheld
a
moratorium,
pending
further
field
trials.
Aiming
to
gain
a
wider
buy-in
to
any
new
policy,
in
2000
it
established
the
Agriculture
and
Environment
Biotechnology
Commission
(AEBC),
in
parallel
to
the
Advisory
Committee
on
Releases
into
the
Environment
(ACRE)
that
was
tasked
with
approving
releases.

In
addition
to
studies
on
the
science
and
economics
of
GM
crops,
a
process
of
wider
public
discussion
about
GM
crop
policy
– GM
Nation?
 –
was
initiated
in
2002.
This
was
an
important
innovation.
Rather
than
assuming
that
science
could
resolve
all
uncertainties,
there
was
a
need
to
deliberate
on
them
in
a
more
rounded
fashion,
with
new
uncertainties
inevitably
emerging
in
the
process.
Robin
Grove-White,
one
of
the
commissioners,
observed
that
public
concerns
“reflected
unease
about
likely
contingencies
outside
the
purview,
or
even
the
imagination,
of present scientific
understanding.
This
extended
not
only
to
potential
environmental
or
epidemiological
issues
as
yet
unidentified
by
science,
but
also
to
potential
ripple
effects,
whether
political,
social,
economic
or
ethical
in
character.”
As
Grove-White
pointed
out,
no
provisions
existed
within
the
existing
regulatory
framework
for
addressing
such
uncertainties,
meaning
that
they
were
effectively
evaded
by
government
and
industry
until
later
when
the
public
became
involved
in
the
debate.”

As
the
book
discusses,
the
biotechnology
battles
of
that
time
were
a
prime
example
of
how
debates
about
new
technologies
throw
up
numerous
uncertainties,
which
are
seen
by
different
actors
in
highly
divergent
ways.
As
the
chapter
observes
“Expecting
these
to
be
resolved
by
some
process
of
‘sound
science’
led
by
elite
experts
away
from
public
scrutiny
and
sanctioned
by
politicians
as
‘evidence-based’
policymaking
was
and
remains
naïve
in
the
extreme.
There
are
multiple
uncertainties,
different
views
and
inevitably
an
intense
politics
around
the
‘evidence’.
This
is
why
open
public
deliberation
is
essential
and
technocratic
models
of
risk
governance,
even
with
performative
concessions
to
consultation
and
participation,
are
inadequate.
The
standard
approach
to
science-policy
interactions,
where
scientists
offer
closed-down
‘results’
without
any
expressions
of
doubt,
will
not
do.
Indeed,
as
any
scientist
will
confirm,
such
an
approach
runs
counter
to
the
scientific
method,
where
doubt
and
‘organised
scepticism’
are
central
features.”


Policy
cultures

The
book
asks,
how
does
this
all
play
out
in
policymaking?
It
notes,
“The
GM
debate,
even
if
exceptionally
heated
and
highly
divisive,
is
not
unusual.
As
new
technologies
throw
up
divergent
views,
rather
than
closing
down
around
a
narrow
assessment
of
‘risk’
led
by
elite
science
as
the
basis
for
a
controlled,
instrumental
form
of
‘risk
governance,’
a
wider
debate
is
needed.
This
requires
a
different
approach
to
policymaking…
and
offering
publics
a
chance
to
deliberate
on
how
the
future
should
look.
This
is
not
a
rejection
of
science
and
evidence,
far
from
it;
instead,
such
a
stance
offers
a
more
effective
approach
allowing
uncertainties
to
be
aired,
and
for
diverse
forms
of
knowledge-making
to
engage
with
them.
Such
knowledge
may
emerge
from
established,
accredited
science,
but
also
from
other
forms
of
insight,
which
may
be
incredibly
valuable
when
dealing
with
uncertain
settings.”

By
the
time
the
GM
crop
discussion
emerged
in
full
force,
the
disaster
of
BSE
thus
made
many
in
the
UK
(although
by
no
means
all)
increasingly
cautious
and
more
open
to
debates
about
uncertainty,
while
the
public
expressed
a
lack
of
faith
in
the
regulatory
institutions
and
associated
expertise
that
were
notionally
tasked
with
ensuring
their
safety.
This
provided
the
context
for
a
much
more
open,
vigorous
debate
about
GM
crops
in
the
UK
than
had
happened
around
other
technological
risks
in
the
past,
and
indeed
since.”

Different
regulatory
responses
emerged
across
the
world,
reflecting
both
different
national
contexts
and
influences
of
processes
of
globalisation.
In
the
early
2000s,
I
explored
how
the
regulation
of
GM
crops
was
negotiated
in
Brazil,
India
(mostly
Karnataka
state)
and
South
Africa/Zimbabwe
(see herehere and here).
As
the
book
discusses,
debates
were
framed
more
widely
than
immediate
health
and
environmental
impacts,
and
histories
of
colonisation,
the
fear
of
capture
by
external
industries
and
class-based
and
political
interests
within
agriculture
came
to
the
fore.
“Rather
than
adopt
a
generic
approach
to
regulation,
policies
that
were
appropriate
to
country
contexts
emerged
through
complex
front-
and
back-stage
political
negotiations
and
evolving
practice,
always
reflecting
different
uncertainties
and
public
concerns,”
the
book
explains.


Beyond
standardised
risk
assessments:
the
need
for
wider
deliberation

In
all
these
cases,
as
the
book
discusses,
“regulatory
decisions
around
a
contested
technology
represented
different
contextual
responses
to
uncertainties….
Uncertainties
are
therefore
not
neutral,
somehow
‘out
there’
in
the
world.
They
are
always
conditioned
by
context
and
circumstance,
and
require
an
engaged,
open
political
debate
about
impacts
and
consequences,
galvanising
diverse
knowledges
and
views.
A
standardised,
instrumental
form
of
risk
assessment
and
governance
is
always
insufficient.”

What
we
see
again
and
again,
is
a
risk
based
‘science’
approach
is
clearly
inadequate
(along
with
a
narrow
legalistic
approach).
Instead,
policy
must
public
involvement
and
deliberation
central,
from
upstream
science
to
downstream
implementation
and
policy
decisions.
This
was
the
lesson
from
the
GM
debates,
but
it
also
applies
to
any
technology
where
uncertainties
prevail,
whether
AI
or
nuclear
reactors.

As
the
chapter
highlights,
“opening
up
spaces
for
wider
democratic
deliberation
is
vitally
important

as
part
of
technology
assessment
processes,
within
regulatory
decision-making,
in
the
courts
and
as
part
of
broader
public
debate.
This
must
go
beyond
performative
consultation
or
the
nominal
addition
of
a
‘lay’
person
onto
a
committee.
Equally,
such
spaces
must
always
be
geared
to
particular
social,
political
and
cultural
contexts,
steering
away
from
one-size-fits-all
governance
arrangements,
respecting
local
political
economies.
More
open
processes,
in
a
variety
of
forms,
will
help
us
navigate
uncertainties
thrown
up
by
new
developments
in
science
and
technology,
meaning
the
many
potential
benefits
are
assured,
whilst
errors
are
avoided.”


This
series
of
blogs
gives
a
taste
of
the
different
chapters,
but
you
will
have
to
read
the
book
to
get
the
full
picture,
as
well
as
all
the
case
study
details,
the
references
and
footnotes!
You
can
buy
the
book
(or
download
it
for
free)
through
this
link: Navigating
Uncertainty:
Radical
Rethinking
for
a
Turbulent
World
(politybooks.com)
.
Use
20%
off
discount
code
to
buy.
And
if
you
are
in
the
UK,
the
Netherlands,
Germany,
Switzerland
or
France,
do
come
along
to
the
first
launches
in
October BOOK:
Navigating
Uncertainty

Pastoralism,
Uncertainty
and
Resilience

PASTRES
 (or
join
online
at
the
IDS
event
on
October
3,
sign
up
here: Navigating
uncertainty:
Radical
rethinking
for
a
turbulent
World

Institute
of
Development
Studies
(ids.ac.uk)
).

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published
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