The U.S. Supreme Court Affirmative Action Decision in Schuette and the Difference between RACE and Assigned Weights in Race Horse Handicapping

This is a mirror follow-up to our previous posting at LawPundit on U.S. Supreme Court Holds that a State Can Ban Racial Affirmative Action in Public University Admissions: Schuette v. Coalition to Defend Affirmative Action.

Below are some links to in part conflicting mainstream opinions on the significance of the holding in the affirmative action case Schuette v. BAMN (slip opinion, No. 12–682, argued October 15, 2013—, decided April 22, 2014).

Ann Althouse - Althouse
The Supreme Court decides Schuette, the affirmative action case about Michigan's state constitutional law ban on affirmative action
which she follows up with
The way to get a concurring opinion out of Chief Justice Roberts is to rewrite his famous aphorism, "The way to stop discrimination on the basis of race is to stop discriminating on the basis of race").

After reading Althouse, we asked the question of what distinguishes RACE and the U.S. Constitution from the assignment of weights in race horse handicapping, whereby stronger horses are assigned more weight to carry than weaker horses in order to make races "more competitive".

RACE may matter, as Althouse emphasizes via Justice Sotomayor, but life is not horse racing and we are not opting for a world in which people best suited for being brain surgeons are unduly "weighted" so that those least suited for being brain surgeons are "unweighted" to give them a competitive chance to do brain surgery. The same holds true for academics in general and for all other areas of human activity.

Of course, as regards contra views citing to other forms of "permissible" discrimination, e.g. we find the "legacy" practice of academic and other institutions to be abominable, if understandable, but not illegal, and legacies "could" similarly be "banned" by law, if the people so desired.

Given the vast inequality of wealth and income in the United States, the main problem is that the truly "strongest" horses are taking away the lion's share of the winnings without an appropriate share being given to the "also rans", who are also important, because no one wants to see races in which just the obviously strongest horse alone is participating.

But that problem is not be solved by affirmative action, but rather by more sensible and equitable distributions of the nation's wealth and income.

More opinions:

Robert Barnes - Washington Post

Supreme Court upholds Michigan’s ban on racial preferences in university admissions

Barnes presents an overview of the various issues involved.

Charles Krauthammer - Washington Post
Finally getting it right on affirmative action

Krauthammer concludes that "This gives us, finally, the basis for a new national consensus." Hat tip to CaryGEE.

Andrew Woodman - Huffington Post
In Schuette, Roberts Continues Legacy of Bringing the Court Into the 21st Century

Woodman finds that "this decision has shown the willingness of the Roberts court to take a new look at the data and update jurisprudence for the 21st century."

Dennis D. Parker - Huffington Post

We're All Losers After the Supreme Court's Decision in Schuette

Parker thinks many have lost through this decision, which he says supports "rigging the game" in favor of certain groups.

Roger Pilon - CATO at LIberty, CATO Institute

Reflections on Schuette v. Coalition to Defend Affirmative Action

Pilon writes that there is simply too much government, i.e. public institutions of higher education.

Elie Mystal - Above the Law

3 Reasons Affirmative Action Will Be Okay Despite Schuette Decision

Mystal urges everyone to calm down, indicating that affirmative action will continue to be practiced in a myriad of legal ways.

Europe Russia USA China and the World: Where Are We Headed? Thoughts on The Bear That Talks Like a Man at the WSJ

This is a posting regarding Peggy Noonan's yesterday article in the Wall Street Journal on The Bear That Talks Like a Man: Conflict with Russia neither began nor ended with the Cold War.

Well, before reading further, you may ask, what do WE know about Russia?

Take a look here: Russia, China, Putin, Crimea and Ukraine, the Baltic and Related Topics ... "I am Not Sure".

With all due respect to Noonan at WSJ and George Friedman of Stratfor​, both experienced in this area of political and military discourse, but that particular article looks to us like a bucket loaded with illusory wishful thinking, wishful thinking that could -- detrimentally -- find its way into U.S. foreign policy.

To understand Russia, it would seem that more information must be acquired, before correct conclusions about events can be drawn.

What are the facts? FACTS.

We surely do not have a monopoly on facts, but some of the indisputable facts are that Russia lords over vast quantities of vital natural resources and that the military has been getting stronger under President Putin's leadership.

Here are some individually selected items in this regard:

• Whereas Friedman -- erroneously, in our view -- predicts  that the Russian military will collapse shortly after 2020, in fact there has been a constant buildup of the military under Putin and more is planned up to 2020. See http://nationalinterest.org/commentary/russias-military-back-9181

• Financially, Russia would seem to be able to afford greatly increased military spending since the foundation of the Russian economy is based on natural resources, with much of Europe e.g. heavily dependent on Russian supplies of gas for energy purposes: http://www.bloomberg.com/news/2014-03-28/europe-seen-paying-twice-as-much-to-replace-russian-gas.html

• And what about world nickel? World nickel prices could easily skyrocket. See Russia Would Divert Nickel Sales to China on Sanctions

• Furthermore, Putin recently signed an agreement with China over "eased" travel rules between the two powers for "businessmen, scientists, culture and public figures, and athletes": http://en.itar-tass.com/russia/727480. 
  
  That does not look like a Russia that is becoming weaker. Indeed, in terms of economic comparative advantage, Russia and China would each seem to have a lot to offer one another in terms of trade at vital levels.

Given all of the above, we thus do not worry very much about Russia collapsing in the near future.

Quite the contrary, we see that the Russian Federation is getting stronger and stronger, economically and militarily, which will clearly create new political conditions in the future.

Demographics are also a very important parameter, with Russia and the USA both having populations near 300 million, which sets limitations on what they can do, whereas Europe dominates economically with 500 million persons.

We wish it were otherwise, but the country we worry about most is the United States itself, a country divided increasingly into haves and not haves, and guided e.g. by a U.S. Supreme Court dominated in the majority by "yesterday yearners" and a similarly backward-looking  populist-populated Congress with too many political elements living in a "Boston Tea Party" nostalgia-like celebration of past glories, http://en.wikipedia.org/wiki/Tea_Party_movement

whereas the real world is moving forward and leaving America behind.

See e.g.

• World Airline Ranking: http://www.economist.com/news/united-states/21599801-new-ranking
  
• Ranking of the USA in tech fundamentals: high-level math, science and literacy skills necessary for the new economy http://www.nytimes.com/2013/10/23/opinion/the-united-states-falling-behind.html?_r=0
  
• Business etc. Leadership Rankings http://industrytoday.com/article_view.asp?ArticleID=we416
  
• World Health Rankings 2000 http://en.wikipedia.org/wiki/World_Health_Organization_ranking_of_health_systems_in_2000 -  http://www.nejm.org/doi/full/10.1056/NEJMp0910064
  
• Health Rankings 2010 - Comparisons reveal that the United States was, prior to Obamacare, falling farther behind each year (see graph below)
.

Only in such traditional parameters as "ease of doing business" and "economic freedom" is America holding its own, and even here the trend appears to be downward:

http://www.doingbusiness.org/rankings
http://www.heritage.org/index/ranking

Accordingly, whether or not the political parties and representatives in the USA want political "change" or not, the nation really has little actual choice on the matter, because the rest of the world IS CHANGING.

NECESSITY drives the world, and that means change, by definition.

Hat tip to CaryGEE for drawing my attention to the WSJ article.

World Legal Market of Nearly $1 Trillion in Global Turmoil on a Grand Scale

At Venture Beat, Nicole Bradick, Potomac Law Group, has an interesting report on the status of the world's legal profession at All rise: The era of legal startups is now in session.

People estimate the global legal market to be at about $800 billion annually, approaching the $1 trillion mark. That is a lot of law, and it represents a legal market that increasingly finds itself in global turmoil on a "grand scale".

Take a look.

Patents on Business Processes, Methods and Software under scrutiny at the U.S. Supreme Court in Alice Corp. v. CLS Bank Int’l (13-298) March 31, 2014 Oral Arguments

One of the best ways to understand "law" in the making is to read United States Supreme Court oral arguments, such as the recent March 31, 2014 oral argument in the case of Alice Corp. v. CLS Bank Int’l (13-298).

We have selected, excerpted and commented what we regard to be some important points made in this case, in which a business process to be implemented by software is claimed quite independent of any software!

This is like some of the kind of "mischief" predicted by Justice Stevens in the aftermath of Bilski.

At issue here in Alice Corp. is the question whether that kind of patent claim is nothing more than the attempted patenting of "abstract ideas", which are, according to U.S. Supreme Court precedent, not patentable.

"...

JUSTICE SOTOMAYOR:

Is your software copyrighted?

MR. PHILLIPS [on behalf of petitioners]:

No, I don't believe so.

JUSTICE GINSBURG:

There is no special software that comes with this ­­ that's part of this patent, is it ­­ is there?

MR. PHILLIPS:

No. Justice Ginsburg, what we did here is what the Patent and Trademark Office encourages us to do and encourages all software patent writers to do, which is to identify the functions that you want to be provided for with the software and leave it then to the software writers, who I gather are, you know, quite capable of converting these functions into very specific code.

...

JUSTICE KAGAN:

Mr. Perry ... you said to Justice Scalia if a patent sufficiently describes how a computer will implement an idea then it's patentable. So how sufficiently does one have to describe it? What do we want a judge to do at this threshold level in terms of trying to figure out whether the description is sufficient to get you past it?

MR. PERRY [on behalf of the respondents]:

First in the negative: What the applicant or patentee must do ­­ must not do is simply describe the desired result. That would take us back to State Street. That would simply say: I claim a magic box that buys high and sells low or vice versa, I suppose, I claim a magic box for investing. That's what these patents do.

Then to put it in the affirmative and in the language of Mayo, the claim has to recite something significantly more, something significantly more than the abstract idea itself. That would be a contextual analysis based on the claims and specifications and file history, and we know that some devices, some methods, some programming will pass that.

It is not going to be a bright­line rule and that's one of the tug­of­war issues that this Court and the Federal Circuit have been having in these cases. The Federal Circuit wants bright­line rules: All computers are in or all computers are out.

This Court has been more contextual. This Court has been more nuanced. This Court has looked at things in a more robust way.

...

JUSTICE GINSBURG:

The Federal Circuit in this case split in many ways, and it had our decisions to deal with. You said, given Bilski and Mayo, this is an easy case. What is the instruction that escaped a good number of judges on the Federal Circuit? How would you state the rule?

MR. PERRY:

Your Honor, I think there's a significant element to the Federal Circuit that disagrees with Mayo and has been resistant in applying it."

Things are not helped along when Chief Justice Roberts is seemingly impressed by arrow-vectors in the patent documents:

CHIEF JUSTICE ROBERTS:

"[It] constitutes the instructions about how to use the computer and where it needs to be affected. And just looking at it, it looks pretty complicated. There are a lot of arrows and they ­­-- you know, different things that go -- ­­(Laughter.) ... Well, but I mean, you know, it -- in different directions. And I understand him to say that in each of those places, that's where the computer is needed."

Was that all tongue-in-cheek? or merely more expectable "mischief", as predicted by Justice Stevens in Bilski?

We wrote in The United States Supreme Court Passes the Buck in the Bilski Patent Case : Business Methods are Patentable : Abstract Ideas are Unpatentable:

"[T]he Supreme Court denied Bilski's patent on the alternative ground that it was an "abstract idea", pursuant to the Supreme Court's earlier precedents, which hold that "laws of nature, physical phenomena, and abstract ideas" are not patentable subject matter. Just how the Court determined what an abstract idea is and what it is not not, is not clear from the opinion.

The majority refused to strike down Bilski's patent on the grounds that it was a business method, indicating instead that a patent-eligible "business method" might be patentable as a "process" within the meaning of the statute -- thus possibly opening up a new Pandora's Box for the patent world, much to the consternation of Justice Stevens, concurring in judgment, who wrote:

"The Court correctly holds that the machine-or-transformation test is not the sole test for what constitutes a patentable process; rather, it is a critical clue. [footnote 1] But the Court is quite wrong, in my view, to suggest that any series of steps that is not itself an abstract idea or law of nature may constitute a “process” within the meaning of §101. The language in the Court’s opinion to this effect can only cause mischief." [emphasis added by LawPundit]"

Small wonder that much of intellectual property law continues to remain in such a needless mess, nor is the ultimate decision in Alice Corp. going to help us much, as the Court in oral argument indicated that it will not be knocking down patents for business methods or processes or for software patents.

It will most certainly not be adopting the impossible standard suggested by the United States government as amicus curiae:

"GENERAL VERRILLI [on behalf of the United States]:

An abstract idea does not become patent­ eligible merely by tacking on an instruction to use a computer to carry it out. A computer makes a difference under Section 101 when it imposes a meaningful limit on the patent claim. That occurs when the claim is directed at improvement in computing technology or an innovation that uses computing technology to improve other technological functions. That's the test that we believe is most faithful to this Court's precedents in Bilski and Mayo."

How could the U.S. government suggest the adoption of such a complex, inappropriate standard? In any case, a definition of patent eligibility tied in ANY way to "a computer" seems to us to be unjustified.

"Software" is nothing other than strings of characters that contain (ultimately) machine-readable instructions for machines that we specifically call computers, printers, keyboards, handhelds, etc., but machines nonetheless.

All software is merely specialized TEXT characters, organized in a given manner, and such instructions should never have been seen as being patentable subject matter. The fact that computers can read that text FASTER and can implement such instructions FASTER is NOT an invention.

At best, if at all protected by IP law, then such protection of the actual software code should only be by copyrights.

TEXT, in the general history of law and legal thinking, is not "an invention".

An "invention" can only be WHAT something does by virtue of text character software code commands that it receives.

For purposes of patentability, an actual working "something" should have to exist (whether as a machine or as a software program) and do what the invention says it does in its unique way, and only that unique way as embodied in that particular invention should be patentable, unless it is not novel and/or obvious to anyone in the state of the art, and not anticipated by prior art (which most "inventions" in fact are).

By no means should "non-built" machines and "non-written" software be able to claim broad swathes of monopolistic patent protection on the promise that a working "something" is in the offing. Talk about "abstract ideas"!

Moreover, whether a "machine" involved is a computer or simply a new-fangled toaster should make no difference, if e.g. a new way to "pop up" the bread has been invented.

The distinction between computers and "other" machines is thus in error. All machines need commands viz. operators. That is no invention.

Similarly erroneous are suggestions from the direction of the Federal Circuit that one should separate off chosen areas in "biological sciences" from other areas of "invention", as if different rules applied.

"MR PERRY:

[F]ormer Chief Judge Michelle filed a brief in this Court essentially saying Mayo is a life­sciences case, You should limit it to that because if you apply it to everything else, then these patents are no good. 

Mayo we submit is a technology-­neutral, industry-­neutral, exception­neutral framework that can be used to answer all of these questions."