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Archive for July, 2010

Immigration Fight in AZ Takes new Twist

July 29, 2010 Leave a comment

Arizona’s tough new immigration law has been blocked hours before it was to take effect. This marks a key victory for Obama who has taken steps to control the issue. The new law included several provisions including one that would allow a police officer to determine the immigration status of a person detained – if that police officer had reasonable suspicion that the person was not in the country legally.

US District Judge Madame Justice Susan Bolton also blocked a portion of law that required immigrants to carry their papers at all times and making it illegal for people without immigration papers to seek work in public places.

So where did this law come from? The GOP controlled Arizona legislature passed the law three months ago ostensibly to drive out nearly 500 000 illegal immigrants from the border state and curb the increasing drug and narcotic problem, as well as the human smuggling issues that have become more pronounced in recent years.

Phoenix, AZ

The U.S. Justice Department argues that provisions of the law encroached federal authority of immigration policy. Obama called the law misguided. This law is far too overbroad and is unable to deal with the significant problems in a precisce manner, nevermind the civil liberty infringements it would have on the residents of Arizona. Laws should be drafted in such a way that they deal with the problem in a precisce and surgical manner. Just as a surgeon wouldn’t use a butcher knife to operate on a patient, laws are to be used as a ‘scalpel’ to provide an clean and exact solution to pressing social problems. Arizona can ultimately to the Supreme Court.  The law would subject hispanic or ‘hispanic looking’ people to prove their immigration status and embarassment. The law is the toughest immigration law in any U.S State (or Canadian province). There are approximately 11 million illegal immigrants. 65% of Arizonans support the new law.

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Categories: Legal Buzz

Meet the new CJ of CA

July 22, 2010 Leave a comment

Madame Justice Cantil-Sakauye would become the first Filipina-American to lead the state’s judiciary, if confirmed by voters in November.

Now let’s get Godwin Liu to the Court of Appeals for the 9th Circuit, and then maybe the Supreme Court!

Good job, California!

Madame Justice Cantil-Sakauye(*)

Categories: Legal Buzz

New Fighter Jets = Cost of Sovereignty

July 18, 2010 Leave a comment

Canada has announced that it is buying 65 new F-35 Lightning II Joint Strike Fighters (JSF) to replace the aging fleet of F-18s. The price-tag for this new procurement has been estimated at $9B USD. It will likely be larger with the cost of repairs, service and a maintenance contract.

These jets are going to be pivotal in defending Canada’s sovereignty, particularly in the high arctic, as well as fulfilling the nation’s commitments to the defense of North America through NORAD, and future international obligations under NATO or the U.N.

The fighter jets are top of the line and the best the aviation industry has to offer. Good job, Canada!


F-35

Categories: Useless Dicta

U.S. Supreme Court releases long awaited Bilski Decision

July 7, 2010 Leave a comment

Here’s a case that has the legal community buzzing in the United States. Well, at least those interested in patent law and how it relates to business methods. I had always wondered what the extent of patent eligibility was for business processes or methods. This recent ruling seems to clarify some, but not all issues.

The U.S. Supreme Court has ruled on the long awaited Bilski v. Kappos decision, a case that was expected to have wide-reaching consequences in defining the limits of patentable subject matter. In particular, this case would provide guidance with regard to patents relating to business methods and software.

U.S. Supreme Court

The U.S. Supreme Court affirmed that business methods and software are patent protectable unless they are written to cover “laws of nature, physical phenomena, and abstract ideas.” The Court also made another interesting holding, stating that that the ‘machine-or-transformation’ test used by the Court of Appeals for the Federal Circuit is not the only test for determining patent eligibility. The decision appears to preserve the status quo and leaves the door open for patents directed to software and business methods.

Bilski, who ever he is, wanted to patent a ‘business method’ which had to do with hedging risk in the energy market. The Federal Circuit had previously held that the Bilski’s application was not eligible for patent protection. The Federal Circuit provided the following reasons; in order to make a patent claim for a process, it must (1) be tied to a particular machine or apparatus, or (2) transform a particular article into a different state or thing. This is the so-called  “machine-or-transformation test” which until now, was the sole test for determining patent eligibility of a process.

In an opinion authored by Mr. Justice Kennedy, the Supreme Court agreed that Bilski’s claim was not patent-eligible matter. In interpreting Section 101 of the U.S. patent laws, the Court held that:

“the machine-or-transformation test is a useful and important clue, an investigative tool, for determining whether some claimed inventions are processes under § 101,” but that the test is “not the sole test for deciding whether an invention is a patent-eligible ‘process.’”

It appears that although the Supreme Court left open the door to patent eligibility, just how to pass through the door remains slightly unclear. In conclusion, the Supreme Court refrained from effecting any large change in the patentability of  business methods.

Categories: I.P. Freely

Finland High Court Guarantees Highspeed Internet

July 4, 2010 Leave a comment

In the United States, the Second Amendment protects citizens’ rights to bear arms. In Canada, the Charter of Rights and Freedoms guarantees citizens’ certain basic civil and political rights. In Finland, a recently passed law now makes a broadband internet connection a legal right. How about that!

The diminutive northern Scandinavian nation,  is a relatively small country, with a population just over 5-million. Known for their excellence in the telecommunications industry, perhaps this new law isn’t so surprising. Finland’s high court recently passed the law last month. The Finnish government has also indicated that the law is only an intermediary step towards a guaranteed 100-Mb connection to all Finns in 2015.

The notion that the access to information is a human right is not new. Everybody relies heavily on the internet. Students need it for school work, whether it be downloading assignments, research, not to mention keeping in touch with friends through email and social networks. Those in the workforce perhaps rely on it even more extensively. The internet isn’t a luxury anymore, it is a necessity. According to a recent survey, four in five adults believe access to the Internet is a fundamental right — with those feelings particularly strong in South Korea and China — and half believe it should never be regulated.

While I find it difficult to justify that access to the internet as a legal right akin to other fundamental freedoms enshrined in the Charter or  U.S. Bill of Rights, such as freedom of speech, religion and freedom of assembly – there is no question that access to information is important. It should be readily available, whether at coffee shops, the library, or other public places, and it should be affordable and easily accessible. Healthy competition between service providers and less regulation of the industry is a good way to ensure that consumers are given the most choice and best prices for internet access.

Access to Information

Categories: Legal Buzz

Why did Al Gosling have to die?

July 2, 2010 Leave a comment

Al Gosling was 82 years when he forgot to renew his papers for subsidized housing. Surviving only on what little fixed income he recieved through his pension, Toronto Community Housing (THC) removed his subsidy. His rent increased to the market rate. He fell into arrears. He was evicted. He fell ill,  and died.

This incident marks a massive failure of the part of THC.  THC is an organization whose mandate is to provide housing for the most vulnerable people in society. These include immigrants, young families, those on social assistance and the elderly.

Not one person visited Mr. Gosling to inquire about his paperwork for a rent subsidy. Instead, faceless bureaucrats mailed letters to Mr. Gosling which either he didn’t read or understand. He then missed his hearing at the Landlord Tenant Board. It appears that the adjudicator summarily ordered the eviction without even having the presence of mind to appreciate the fact that a 82-year old man was now going to be living on the streets.

Mr. Gosling returned home one day and the Sheriff had already changed the locks. After living on the streets he became ill and was admitted to the hospital where he later died.

Another sensless eviction and another sensless death. If Al Gosling were to have retained an attorney from a  Community Legal Aid Clinic, perhaps this could have been avoided. It is doubtful he would have even known of the availability of the services of Legal Aid.

If any good might come out of this tradgedy, it is the damning report of Justice Patrick LeSage. Although THC considers the document remedial rather than an indictiment, it clearly outlines several failures at THC that need to be fixed. Perhaps they should start at the top with Ms. Nakamura, CEO of Toronto Community Housing.

The elderly, disabled and the impoverished are the most vulnerable segment of society. They face a struggle in every facet of life and there is no question in my mind that the law does not favour them. Now is a good chance to look at THC’s policies on eviction and completely change them because obviously there is some inherent flaw which allowed an 82-year old pensioner to die on the streets.

Categories: Useless Dicta