Supreme Court Cannot Bypass It

Lawyers like the typical realtor lease for several reasons. A lot of these leases are full of holes-holes attorneys like to exploit. Those holes enables them to sue property holders right and left leaving you to pay money for someone else’s mistakes. I learned to include a Binding Arbitration Clause from the very best teacher around: experience. I saw firsthand to what precisely lengths some people will go to lawfully extort money from property owners. And it wasn’t pretty. Many years ago , I had a lease that did not have this precious arbitration clause. Without it, I was left unguaranteed and ended up getting sued by a phony civil rights’ organization on a totally bogus discrimination suit. I was left with no recourse but to push these individuals to try to actually prove their case in the court. Amid all that, my own attorneys resolved the case with out my knowledge in a completely unethical and unlawful act of betrayal against me.And they got away with it.

If I had had a Binding Arbitration Clause, none of that would have occurred. That suit never would have been filed as it will not have been authorized in the court. Furthermore, once an unethical lawyer from the company of Dewey, Cheatem as well as Howe saw that clause, odds are they would back off. If they can’t scare the property owner into settlement or bring him into a war of attritrion with the cost of court fees , attorney’s fees and appeals, there is nothing for them to gain . The actual expense of settlement is significantly less than going to court. It usually ends with a serious person sitting on the other side on the table playing Judge, Jury and Executioner all at once. Makes that binding arbitration clause sound very good, doesn’t it? I really should mention that the lease obtainable here for you to download off my site does not cover Mental Anguish. The lease that I use on a daily basis does deal with Mental Anguish-along with some other thing a judge bent on social justice may make a decision to cite in order to penalize a property owner .

The case in question arose in Sheela Barse v. Union of India, a matter that concerned the unlawful detention of mentally ill persons in prisons. The Supreme Court had passed an order strictly prohibiting the confinement of non-criminal mentally ill patients in jails. To ensure that the State of Assam was complying with this order, I was appointed a Commissioner by the Court. Gauging the reality on the ground was an immensely saddening, even devastating, experience. I found that almost 400 persons had been unlawfully confined to prisons solely on the ground that they were mentally ill. The conditions under which they were kept were deplorable, sufficient to cause more trauma to those so imprisoned. Many did not even suffer from any mental illness. At personal expense, I had ventured beyond my mandate in preparing my Report, not because this was common practice, but because it was necessary. As an Officer of the Court, it was my duty to provide a comprehensive and objective account of the facts to the Court.

In doing so, I also recommended that those who had been wrongfully confined be adequately compensated for the violation of their constitutional rights. It was a proud moment that the Court accepted my report in its entirety. For me, the experience was also an exercise in learning. I learnt that the true spirit of the Constitution and the rights it recognises must be upheld and affirmed. Moreover, what further considerations must you make when dealing with legal cases including terrorist attacks? How do you deal with the added pressure of the public’s concern and scrutiny? Cases involving terrorist attacks are incredibly testing. One owes a duty to the Court to handle such matters delicately, with due care towards the rights of the accused, and above all, with a degree of impartiality. It is important for a prosecutor to refrain from falling prey to mass (though justified) hysteria, and to guide the Court towards a just decision.

The outcome that is reached must be devoid of vengeance and malice, and instead serve the ends of justice. I have looked to adopt this belief in cases that followed from terrorist attacks. How do these specific considerations differ when you are acting as Counsel for commercial reasons (for e.g., your involvement in the Indian patent case concerning the drug ‘Glivec’)? Appearing in commercial disputes requires approaching cases very differently. The frame of one’s mind while arguing a constitutional matter is, for instance, significantly different from the approach one takes to commercial litigation. There is, first, a need to acquire industry-specific knowledge. In a pharmaceutical patent case, this would involve studying medicinal chemistry and pharmacology in considerable detail. Similarly, for a mining dispute, one must spend sufficient time grasping the nuances of mining procedures and developing an understanding of the best mining practices. This knowledge may not always be of immediate relevance to a particular case, but is nevertheless necessary to form a thorough understanding of the intricacies at play. I often attempt to develop such an understanding through sessions with experts in their fields, in addition to a significant amount of self-study.

It is also worth noting that a lawyer has a duty to guide the Court, carefully and meticulously, through what are often complicated cases. Subject-specific knowledge often impacts the success of this cause. What different problems are you presented with when acting as lead Counsel for Indian companies? Have these changed over time as India as progressed? Being the lead Counsel for companies before the Supreme Court is always a stimulating experience. The Court often, and rightly, considers public interest in reaching its decisions. To then convince the Court of the necessity of purely commercial interests becomes incredibly challenging (an enjoyable challenge, I might add). I often appear on behalf of companies in property disputes, patent infringement matters, and challenge and enforcement proceedings that arise out of arbitrations. Perhaps the greatest difference I have observed over years of practice is the ever-increasing presence of foreign companies in commercial disputes. Indeed, foreign companies have to be advised about the Indian legal system carefully. What are you hoping to change in the next few years in India that will enable it to progress globally? At least at this point in my life, it would be wise to limit my efforts to the legal domain. I hope that the professional standards which lawyers must meet are not only met, but also surpassed. It is necessary for lawyers to conduct themselves with unquestionable integrity, devoid of ego or the need for personal gratification. I often tell my juniors that their need for personal financial development ought to be secondary, subordinate to their duties towards clients and the Court. A better and stronger judicial system, where the law is practised with honesty, will undoubtedly help in India’s progress in every way. The best investment, I told the government recently, was to strengthen legal institutions.

Patent trolling’ is a slang term for act of attempting to collect licensing fees from alleged infringers when the enforcer does not actually produce goods or supply services based upon the patents in question. While patent trolling tends to be commonly associated with hardware tech companies, video game developers have increasingly found themselves targets of this predatory practice. Defendants in these cases are often at the disadvantage and excellent video game legal support provides the only lifeline from damages that can run into amounts of millions of dollars. This problem came to the forefront earlier this year when Minecraft developer Electronic Arts, Square Enix, Mojang, Gameloft and either other companies were simultaneously sued for patent infringement by Uniloc. Luxembourg-based company that has earned itself a reputation as a ‘patent troll’. At the time of writing, Uniloc has 33 infringement cases filed in Eastern District of Texas, an area renowned for being friendly to patent plaintiffs. Since 2005, it has filed suits similar to the July cases, both in Texas and in jurisdictions that are friendly to plaintiffs, against companies including Microsoft, Sony, Activision Blizzard, Adobe, Symantec, and Adobe.

Each of the defendant companies is accused of allegedly infringing this incredibly broad patent that covers a commonly used technology. The fundamental intent of patents is to promote research and development by allowing inventors to monopolize their inventions for a fixed period of time after their invention. In the United States, this period is 20 years. This provides a financial reward and incentive for the originator of a patent. However, in some cases technology patents violate the rule that a patentable invention should be non-obvious. Examples abound of companies that are sued by plaintiffs, often with no discernible products or services of their own, for using technologies as generic as such as allowing users to communicate with each other, ‘low voltage’ controllers, or touch screens. Presently, neither the US Court of Appeal for the Federal Circuit, which holds authority over the US Patent and Trademark Office, nor the Supreme Court has defined how patents that affect the rapidly-changing gaming industry should be handled. Until the courts or Congress intervene, and indeed after that point, a capable video games attorney forms the first and most effective line of defense against the growing patent troll issue.

James MacDonald, a patient with pneumonia and a kidney transplant recipient, was admitted to a West Virginia hospital in 2004. There, he received medication for his pneumonia while already on medication for his kidney transplant. The two differently purposed medications interacted dangerously, resulting in serious side effect, rhabdomyolysis. Rhabdomyolysis is the breakdown of muscle fibers, which is then released into the blood stream, which can lead to kidney damage. He sued the West Virginian hospital and the treating physician on the claims that the rhabdomyolysis reduced his enjoyment of life and caused substantial pain and suffering. 1 million for pain and suffering. 500,000 in pain and suffering damages. 500,000, citing a West Virginian law cap on non-economic medical malpractice damages. 500,000 for more severe cases. The medical association of West Virginia lobbied for the law and former Governor Bob Wise (D-West Virginia) signed it into law in hopes of bettering the health care system’s exorbitant costs for the state’s residents. MacDonald appealed the decision and the case went to the West Virginia Supreme Court. In the end, the judges ruled four to one, ruling against MacDonald and in favor of keeping the cap. John H. Schmidt, III, the president of the West Virginia State Medical Association.

This allegedly happened recently — not in a published news story (I checked the Law Bulletin to be sure) — but on social media (Facebook, according to the account I heard). I’ve published some angry comments complaining about political influence in filling judicial vacancies (I’ve flushed several more because they were fueled by that special mix of outrage and character assassination so popular online these days). I mean, if even the appointee believes that the process is susceptible to political influence, how can we ever expect the public to see it as legitimate? I admit to not being particularly shocked that a successful appointee would include politicians in a list of persons to be thanked. After all, that new appointee is going to need the continued help of those politicians in order to hold that seat come primary time. I don’t know for a fact that politicians try to secure appointments for their favorites, or whether some do more than others, although I suppose it to be so.

I certainly don’t know how Politician A lobbies Justice B (or a member of Justice B’s committee) on behalf of Candidate C. But I am not so naive to think it never happens. And if I am sometimes envious of those who seem to have multiple committeemen advancing their judicial ambitions, I find it difficult to get upset about it. Isn’t that just the way things work? Then again, I’ve lived in or near Chicago my entire life. And maybe that’s the trouble. Illinois has a reputation as one of the more corrupt states in the nation. Cook County generally, and Chicago in particular, have contributed substantially (though by no means exclusively) to Illinois’ historic reputation. Oregon and Minnesota, however, are perceived as far less corrupt (here’s a recent survey, just for example’s sake). What would a life-long Oregonian or Minnesotan think about the propriety of a committeeman — any committeeman — attempting to influence the appointment of judges by the Supreme Court?

Imagine a transplanted Minnesotan on a justice’s nominating committee in Illinois fielding a phone call from a committeeman. Would the person favored by that politician be helped or hurt, in the committee member’s opinion, by such a call? On the other hand — and this is a sticking point for me — according to the ARDC, as of October 31, 2013, there were 91,083 lawyers on the Master Roll of Illinois Attorneys. Nearly half of these — 45,306 — were in Cook County. There are more than that here now. In a rural county, perhaps, it may be possible to say that Mr. Smith is the best lawyer or that Mrs. Jones would make the best judge. But among so vast a population as we have in Cook County, can we ever really say that this person or that person is the one and only best person for a judicial appointment? But although a judge may look like some of the people that come before the bench, that judge must still have the skills to communicate effectively and understandably with the non-lawyers in the room in order to be effective. Isn’t the ability to attract political support at least an indicator of well-developed public communication skills? Or would I feel differently if I’d grown up in Oregon or Minnesota?

While laws against religious hatred and intolerance have a laudable purpose, such laws may impermissibly contravene both freedom of religion and freedom of expression. Special Rapporteur Odio Benito lists approvingly states that have laws penalising acts of intolerance and discrimination based on religion or belief, and recommends that all states adopt similar laws. However, she does not attempt to distinguish between laws that legitimately prevent incitement and laws that themselves contravene religious freedom and freedom of expression by preventing legitimate religious speech. A fine but crucial line must be drawn between the two. Where such a line must be drawn has been the subject of much controversy within state practice and juridical debate, as well as within the limited interna­tional case law on the subject. The legitimacy of limitations on hate speech as restrictions of free speech has been much debated. The debate has centred on hate speech targeting race.

But religious hate speech differs from racial hate speech, a point that has not received much attention. Treating religious and racial hate speech in the same way does not sufficiently protect religious freedom. When religious freedom is involved, its dual character must be taken into account. A religion consists of a group of people whose identity it helps to define. But a religion also consists of ideas. There is potential social benefit in speech against Catholicism or anti-Catholicism, for example, but not against members of those groups. There is no similar differentia­tion regarding racial hate speech. There is simply no possible social benefit arising from speech against ‘blacks’ as ‘blacks’, and there is no such thing as speech against the idea of ‘blackness’. The difference between the two types of speech, that targeting ideas and that targeting groups, can be understood by comparison to other possible categories of hate speech. In the landmark case R.A.

V. v. City of St. Paul, the US Supreme Court ruled on the constitutionality of a St Paul ordinance that banned offensive speech on the basis of race, colour, creed, religion, or gender. It held the ordi­nance was invalid because it constituted content discrimination: it did not ban speech on other possible bases such as political affiliation, union membership, or homosexuality. ] to impose spe­cial prohibitions on those speakers who express views on disfavored subjects’, reasoned the Court. The law was deemed to be unconstitutional because the pro­hibition was based on the subject of the speech. Interestingly, although the case dealt with racial hate speech, the Court criti­cized the ordinance by using an example from discourse about religion. Indeed, one-sided prohibitions on speech concerning religion, which apply to some sides of the debate but not to others, are an unacceptable limitation of free speech and freedom of religion. Furthermore, any prohibition that stifles speech concerning whose religious beliefs are right or wrong, even in insulting terms, is an unwarranted limitation on the critical-expressive aspect of religious freedom, one of the key justifications of this right.

Legislation against religious hate speech should follow an approach that distinguishes between permissible offensive speech against ideas and impermissible offensive speech against people qua members of a religious group. Contrary to the reasoning of the Court, I would argue that political affiliation and union membership are different from race, creed and gender. Speech against political affiliation and union membership targets views (which should be permis­sible), while speech against race, colour or gender targets groups or inherent characteristics (which should, under certain conditions, be impermissible). Religion can belong to both categories: speech against religion can be either against a reli­gious view or against a religious group of people, making it harder to distinguish between speech that should be permissible and speech that should not. In the case of the former, freedom to use offensive speech against religious beliefs may have a social benefit. This law was the subject of the Taylor case in the Supreme Court of Canada. The Court decided that the law was not a restriction of freedom of expression intolerable in a free and democratic society.

However, the dissent argued that the scope of the prohibition was too broad and invasive, catching more expressive conduct than can be justified. I would put the criticism more broadly: religions consist, on the one hand, of views and, on the other, of people whose identity is defined by belonging to them. Any prohibition on religious hate speech should be approached with this differen­tiation between speech against ideas and speech against a group of people in mind so as to prohibit the latter but not the former. But the defence itself is problematic: why should speech that constitutes reitera­tion of existing religious doctrine be treated differently from other hate speech? Either all hate speech prohibitions should be subject to determination of intent, or they should not be. Why should religious speech be acceptable where other speech would not be? Under the classification suggested in this chapter, which makes speech inciting against religious ideas permissible but speech inciting against people based on their religion impermissible, speech such as Alba’s would not be protected merely by virtue of its religious sources.