Nevada Appellate Lawyer & Attorney : Tami D. Cowden : Nevada Supreme Court, Ninth Circuit Court of Appeals

Yes, it's true.  I actually agree with Justice Scalia about something.  And as far as I know, the temperature in hell has not dropped below freezing.

Seems while accepting an award from the American Society of Legal Writers, Scalis stated that he does not believe that legal writing exists.  Or at least, not as a separate category of writing.  Instead, he places it with "nonfiction prose."  See the ABA story here.

I agree.  That's what we write, folks.  (I consider mine, creative nonfiction, of coruse).

So there.  I agree with a right wing justice on something.  Can't call me closeminded!

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As an occasional teacher of writing, I am always interested in cases where grammatical irregularities lie at the heart of the dispute. Robert C. Cumbow offers some examples in “News from the Trenches in the War of the Words,” published in the Washington State Bar News.  

Cumbow also points out that U.S. Supreme Court Justices Antonin Scalia and Clarence Thomas do disagree on some things, as Thomas forms a possessive of a singular noun ending in “s” with a lone apostrophe, while Scalia uses the Strunk & White approved addition of another “s” after the apostrophe. See Kansas v. Marsh.  Justice David Souter sides with Scalia on this one.

Thanks to Tabitha Keetch for the heads up on this article!

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In KSR International Co. v. Teleflex Inc,  the Court issued a unanimous ruling, authored by Justice Kennedy, which may make it easier for patents to be denied on the grounds that the innovation is too obvious to warrant patent protection.  

The court rejected the test to determine obviousness developed by the federal circuit, known as the “teaching, suggestion or motivation” test (“TSM”).  Under TSM, a patent is only proved obvious if the prior art, the problem’s nature or the knowledge of a person having ordinary skill in the art reveal some motivation or suggestion to combine prior art teachtings.” During argument, Justice Scalia had called the the Federal Circuit’s test as “gobbledygook,” while Chief Justice John Roberts Jr. referred to it as “worse than meaningless.”   Kennedy’s opinion merely calls TSM narrow and rigid, although its elements  can remain a portion of a more helpful, flexible test that allows a common sense approach to determine whether the innovation was obvious.

The Court’s test focuses on the marketplace, and what design variations might be prompted by market demand. A thoughtful examination of the new test appears at Scotusblog.

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The U.S. Supreme Court took a giant leap into the 21^st century today, issuing an opinion which included a citation to a URL, located on the court’ own website, where a video tape of the car chase in question in the opinion can be viewed in a RealPlayer video file.

The 8-1 decision in Scott v. Harris, authored by Justice Scalia, notes that ordinarily in an appeal of the grant of summary judgment, the Court would accept the Plaintiff’s version of events. However, the existence of the video eliminated he factual dispute, and the court makes he video available to prove it. Justice Breyer, in his concurring opinion, states,                "[b]ecause watching the video footage of the car chase made a difference to my own view of the case, I suggest that the interested reader take advantage of the link in the Court's opinion . . .  and watch it."

Oh - and the opinion also includes this straightforward rule: "A police officer's attempt to terminate a dangerous high-speed car chase that threatens the lives of innocent bystanders does not violate the Fourth Amendment, even when it places the fleeing motorist at risk of serious injury or death."

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In yet another victory today for federal regulation, in Zuni Public School District No. 89 v. Dept of Education, the U.S. Supreme Court upheld the Department of Education's method of calculation for determining when states had equalized expenditures for public school spending under state programs, finding the agency's method within Congressional intent.  At issue was approximately $20 million in funding per year the New Mexico schools claimed it was due for its Native American pupils.  

 Scalia bitterly dissented, castigating the decision as "the elevation of judge supposed legislative intent over clear statutory text.""

The Volokh Conspiracy makes note of the Breyer's odd structure in his majority opinion's odd structure and the comments thereon by two members of the majority.

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