The Attorney General Strikes Back

By now I'm guessing many of you have heard Mark Herring, Virginia's new attorney general, has taken a stand against defending Virginia's constitutional amendment banning same-sex marriage. The Washington Post story that broke the news can go over general details better than I can; but after listening to Herring's NPR interview this morning and reading what the Attorney General's office's notice and memorandum filed today, I can't help but comment further on the case.

Mark Herring's announcement was one of necessity: the case in which the notice and memorandum were filed today, Bostic v. Rainey, has an oral argument scheduled for one week from today. The Attorney General's role is to appear before the court and provide legal analysis on cases filed against the state. Virginia's new Governor, Lt. Governor, and Attorney General were all sworn into office twelve days ago, which required Herring and staff to make a quick decision on how they wanted to approach Bostic. 

Democratic Attorney Generals across the nation have been refusing to argue in favor of state law's banning same-sex marriage. Pennsylvania, Hawaii, and, of course, each of California's attorney generals refused to defend their state's law. Even the Executive Branch took a similar stand when asked to defend the now-unconstitutional Defense of Marriage Act (DOMA), passing that case along to GOP House with counsel eager to defend the law. 

We all know what happened in California. Since no government official would agree to defend Proposition 8, a citizen group formed in order to defend California's law. The Supreme Court, taking an easy out, ruled that Hollingsworth v. Perry was improvidently granted due to lack of standing -- that the citizen group didn't have a right to represent the state of California in defending its law and would therefore not rule on the case's merits -- and the case was rescinded back to a lower court. This meant that the California's high court ruling against Proposition 8 was the ruling of the land, thereby legalizing same-sex marriage in the state. Of course, at the end of the day the Hollingsworth ruling was a victory for the LGB movement, but it's hard to not be curious how the SCOTUS would have ruled on the case if they didn't use an escape route, especially when they completely overturned DOMA on the same day.

David Boies and Ted Olson, after teaming up for their win in Hollingsworth, have chosen Bostic as their next test case. Boies and Olson cite the origin of Loving v. Virginia as their rationale for choosing Virginia as their next test case. My guess on the real rationale is a combination of Virginia being moderate state that has moved from red-leaning moderate to a bluer shade of purple within the last decade (poll numbers suggest a majority of Virginians now support gay marriage), that Virginia's Marshall-Newman amendment banning same-sex marriages is written rather broadly (there were concerns raised before the amendment passed that contracts between people of the same-sex could be invalidated by the amendment), and finally, my guess is that Boies and Olson assumed that Virginia would have a Republican Governor, Lt. Governor, or Attorney General that would defend the law. Prior to Herring's election, a narrow victory by fewer than 1,000 votes out of over 2 million ballots cast, a Democratic Attorney General hasn't held office in Virginia in twenty years. I know that Herring refusing to defend Marshall-Newman is a victory for Boies and Olson, but I have to wonder if they're a little frustrated that they've picked another case where they won't get to argue against a state-backed attorney general. 

Fortunately for those of us that actually want to see a state-wide marriage ban ruling before the Supreme Court, one that's not rescinded to a lower court due to lack of standing, Utah and Oklahoma's higher courts both ruled recently against the constitutionality of same-sex marriage bans. These cases are both on their way to the Tenth Circuit Court, one step from the SCOTUS, and are defended by state representatives. Since Bostic is only hitting District Court litigation now, the case may eventually become moot as its well behind these two other test cases. Those cases may hit the SCOTUS on appeal as early as the October 2014 - June 2015 term.

I have a few comments from reading Herring's memorandum filed today. First, I assumed that because of Herring's stand, that the General Assembly's GOP leadership would appoint suitable counsel, as was the case in the DOMA proceedings. The memo details that because county clerks from both Norfolk and Prince William were sued along with the Attorney General and those clerks have both agreed to defend the lawsuit, the case will likely move forward without need for any additional counsel appointed. Whether the General Assembly steps in and assists in defending the suit is a scenario that will surely unravel over the next few days.

In the memo Herring quotes Scalia's opinions several times, most notably in a timeline of precedential LGB SCOTUS decisions. Scalia's quotes derive from all of his dissents in cases with pro-LGB rulings, which makes it even more surprising that he's referenced so often here. Here's why: he has a tendency of forebodingly predicting the future in his dissents, a practice that is now coming back to haunt him in not only this memo, but in courts across the country. For example, in 2003's Lawrence v. Texas, the case that made sodomy laws illegal, Scalia says the majority ruling would "'dismantle' the constitutional impediment to same-sex marriage." Scalia's fortune-telling struck again in his DOMA minority opinion: "the majority arms well every challenger to a state law restricting marriage to its traditional definition." Another quote from the same ruling: "the view that this Court will take of state prohibition of same-sex marriage is indicated beyond mistake by today's opinion... How easy it is, indeed how inevitable, to reach the same conclusion with regard to state laws denying same-sex couples marital status." Parties are now specifically citing these dissent passages as proof that the Windsor's cautious majority ruling inevitably applies at the state-level. It must feel nice to use Scalia's words of warning as a prophecy of his own undoing.

Finally, and in my opinion, most interesting, is that Herring argues that the same-sex marriage ban should be reviewed with strict scrutiny under the Equal Protection Clause. There are three levels of evaluating whether a law should be found unconstitutional by the 14th amendment: the rational-based review (the easiest test for the law to overcome), heightened or intermediate scrutiny, and the most severe test -- strict scrutiny. I won't go into the fine print of how discriminationatory laws are evaluated against government justifications via these tests, but I will say that certain attributes of individuals have precedents for which level of scrutiny is applied. For example, gender is evaluated on a heightened scrutiny level, while race is evaluated according to strict scrutiny. If a personal characteristic does not have a level of scrutiny precedent, usually the courts will evaluate that discrimination against a rational-basis test. The rational-basis review has been the level of scrutiny used for LGB laws since the dawn of these cases being brought to the court. Recently, courts have been applying heightened scrutiny to these LGB cases, rationalizing that LGB discrimination is a form of gender discrimination, and thus should be judged against the same level of scrutiny as gender. Herring takes same-sex discrimination to the next and final level, appealing that marriage is a fundamental right and therefore we should apply strict scrutiny. This is unusual, but I wouldn't be surprised if it takes hold in other courts sooner than you'd think.

Same-sex marriage support has been progressing at unprecedented and unforeseen rates. Virginia's Marshall-Newman amendment passed with a healthy 57% of voters in support of a gay marriage ban. In the eight years since the amendment passed, recent polls show that the majority of Virginia voters now support revoking the constitutional ban on same-sex marriage. Since the ban is a constitutional amendment, according to Virginia law if this year's General Assembly voted to strike down the ban (it won't -- they already tried and failed), next year's GA would have do vote on the bill again, and THEN it would go to voter referendum. (This is why you don't pass constitutional amendments on issues with evolving opinions.) The earliest Marshall-Newman can be repealed legislatively is in 2016, but is more likely to occur in the late teens of this century or early 2020s due to a current lack of majority support in the General Assembly.

Progress is coming; this is a mantra we've heard for the past few years. But now it's coming even from places  and people you'd never expect. Virginia overwhelming supported a same-sex marriage ban in Marshall-Newman eight years ago, and is now looking to make amends. You wouldn't guess it now, but in 2006, Mark Herring, then a state senator, voted for Marshall-Newman. Now he's leading the charge to be on the right side of history.

The Supreme Court and Same-Sex Marriage Cases: Predictions

Finally, the week has come where we discover whether the justices believe the voting rights act is outdated, if affirmative action is outmoded, and whether sexual orientation can be considered a suspect class under the equal protections clause. This is a big deal. But it's not the same deal the media is selling you.

The Supreme Court isn't going to decide that it's right or wrong for same-sex couples to marry. The legislative and executive branches of government like to make conclusions of grandeur, but generally, the Supreme Court is all about baby steps. We're taught Brown v. Board and Roe v. Wade because these are momentous decisions that shifted our laws, our culture, AND because they are extremely rare. We are taught in Civics 101 that the Supreme Court's job is to evaluate the constitutionality of laws. They don't make laws; they don't execute laws; they determine whether the exact laws presented to them are constitutional. In Hollingsworth v. Perry and United States v. Windsor, the court will be evaluating individualized same-sex marriage statutes AND NOT the morality of same-sex marriage laws as a whole.

Here’s why:

There's a very small chance Hollingsworth v. Perry (Proposition 8) will lead to the forced legalization of same-sex marriage in all 50 states:

·       Because of Justice Kennedy: When the majority of justices feel strongly about a case, they will often write an opinion that may apply more broadly than needed in that particular case. If Justice Kennedy was a liberal justice instead of a right-leaning moderate, I do think that a 50 state same-sex marriage ruling might have a chance. But those aren't the cards we were dealt. With Kennedy as the very likely drafter of the majority opinion, we are likely to see a moderate opinion no matter how he lands.

·       Because it's the most practical decision: This case came from the Ninth Circuit. The way the Supreme Court works is that they evaluate the Ninth Circuit’s ruling and decide whether they agree or disagree with their evaluation and the application of the law in this scenario. That’s their job. They are not deciding whether gay marriage is constitutional, because that’s not how the Ninth Circuit ruled. The Ninth Circuit ruled that it is unconstitutional for states to take away the right for same-sex couples to get married. California is a unique case where same-sex couples had the right to marry for many months, only to have it taken away when Proposition 8 passed by a slim margin. This exact scenario has never occurred in any other state.

The way I see it, the SCOTUS could hypothetically rule on three different levels, based on how broadly they want to apply this case to the rest of the country:

o   Apply the ruling to the entire country. I don't believe this will happen --because it doesn't need to happen. This decision would be broader than the Ninth Circuit’s ruling. The court doesn't want to make laws, and fortunately for them, the Ninth Circuit’s prior decision allows them an escape hatch.

o   Apply the ruling to states that allow civil unions. This is complicated and requires some level of cognitive dissonance. Because California allows civil unions but not same sex marriages, the court may rule that allowing civil unions but not gay marriages is 'separate-but-equal,' and therefore unconstitutional. However, this would not affect states that have no civil unions. Although many have speculated that this is a likely way the decision will go, several of justices appeared to have difficulty digesting a decision that would force the most permissive states to change their laws while states that ban same-sex unions completely have no repercussions. For that reason, I don't think any of the justices on the right or left would prefer such a wonky ruling. However, crazier opinions have been written for the sake of gaining a majority in the SCOTUS.

o   Apply the ruling to only California. As discussed above, California is a unique case where a class of people had the right to get married for a short window of time, and then that right was taken away. I think the safest decision Kennedy could make is to rule that what happening in California, and only in California, is unconstitutional. It allows him to rule on the case in the narrowest of terms and to further his reputation of (mostly) ruling in favor expanding gay rights.

But the justices may not rule on the merits of gay marriage at all.

·       Because of Standing: During the oral argument of Hollingsworth, Justice Roberts forced both the petitioner and the respondent to discuss the case’s standing before moving on to arguing the merits. That’s because if Hollingsworth is found to lack standing, then the SCOTUS won’t be discussing same sex marriage at all in their opinion.

When California voted for Proposition 8, California’s then-attorney general and governor refused to defend the law when it was challenged in court. That meant that a rag-tag organization of average Joes, with Hollingsworth at the helm, came together to defend the slaw themselves. So far the courts have ruled that Hollingsworth and company have standing to defend the law since the government refuses. The Supreme Court may disagree.

What happens if the SCOTUS does rule that Hollingsworth lacks standing is complicated, but what’s clear is if that does happen, the SCOTUS won’t rule at all on the same-sex marriage issue. Either someone else could try their hand at defending Proposition 8 or the ruling by the Ninth Circuit will be remanded and the California Supreme Court’s ruling will be the law of the land, legalizing gay marriage in California alone.

The issue of standing in this case is very important, but less engaging as a discussion on the morality of same sex marriage. For that reason, the uncertain standing of this case isn’t discussed very often, but don’t forget it. When the opinion comes look out for the term DIG: it means “dismissed as improvidently granted.” That’s when you know that the case was remanded and the justices won’t be deciding on same-sex marriage’s merits – today.

There is absolutely no chance United States v. Windsor will lead to the forced legalization of same-sex marriage in all 50 states:

·       Because of the Case: Hollingsworth is complicated, Windsor less so. Windsor is challenging the Defense of Marriage Act (DOMA), a federal law denying federal marital benefits to same-sex couples legally married in states that allow such marriages. The law is completely unrelated to the states’ regulation of same-sex marriages. The forecast for DOMA’s demise is more certain. Justice Kennedy voiced clear disapproval during the oral argument for the federal law that denies benefits the states have deemed permissible. If DOMA is ruled unconstitutional, same-sex couples that are legally married will have all of the same state AND federal benefits as opposite-sex couples.

Here’s a not widely publicized catch. Windsor isn’t ruling on interstate same-sex marriages. If a same-sex couple gets married in Massachusetts and moves to Virginia, that couple won’t maintain the benefits granted to them in Massachusetts unless they continue to live there. A pro-same-sex marriage ruling in Windsor will only apply to those couples that remain in states that legalize and recognize same-sex marriages. 

·       Because of Standing: Windsor, like Hollingsworth, is a case where the people who were in charge with defending the law, the United States solicitor general and justice department, refused to defend it in court. Instead, the House picked up the slack. Because the lack of standing in this case is unprecedented, the Supreme Court will also rule whether the House has a constitutional right to defend the law when the executive branch refuses. Again, the standing issue is less complicated in this case – it’s easy to see why the House defending a law would be considered more valid than a random group of citizens. Because of this, it is unlikely that this case is thrown out for lack of standing.

There may be no ruling at all.

I am confident that the justices will rule on Windsor, but not confident that they will rule on Hollingsworth. What do I mean by that? Here’s Justice Kennedy in arguably the most telling statement during Hollingsworth’s oral argument:

“JUSTICE KENNEDY: But you're -- you're doing so in a -- in a case where the opinion is very narrow. Basically that once the State goes halfway, it has to go all the way or 70 percent of the way, and you're doing so in a case where there's a substantial question on -­ on standing. I just wonder if -- if the case was properly granted.”

Ted Olson, the attorney arguing against Proposition 8 and for same-sex marriage, was directing his argument towards the legalization of gay marriage nationwide. In this statement, Kennedy was reprimanding him for doing so instead of focusing on the Ninth Circuit’s narrower ruling. If the justices don’t feel like the case was properly argued, they could ask to rehear it the following term. When they do so, they can then direct the parties towards the exact legal questions they want addressed in the next hearing.

So tell me how you really feel.

I’m incredibly excited that the court decided to take up two same-sex marriage cases after over forty years of silence of the issue. No, each case’s legal repercussions aren’t quite as make-or-break as they first appear, but that doesn’t mean we should be disappointed when the court doesn’t rule exactly our way. The court can’t choose the circumstances of the cases they decide to hear, but they do choose the cases they think are important to hear in the context of our evolving country. I am positive that after (and because of) Windsor and Hollingsworth, there will be more LGBTQ cases that will make it to the Supreme Court’s docket.

Until then, see you outside the Court at 10am on June 27.

Where No (Wo)Man Has Gone Before: Evaluating Into Darkness

Let me preface this post by saying that my only knowledge of Star Trek is from watching the two newest movies and modest discussions with friends who have watched, read, and analyzed much more. There are likely to be oversights because of this, so if the idea of a novice evaluating your fandom upsets you -- I'd probably stop reading now. Of course, I welcome your commentary. I'm sure everyone who reads this has thoughts they may like to contribute.

If you're looking for a good action film to see this summer, go see Star Trek. It's an entertaining movie, and unlike many in the wave of sci-fi/comic reboots, it mostly* shines brightest while exploring character development and relationships, especially the blossoming relationship between Spock and Kirk. That's my non-spoiler intro. If you haven't seen the movie and don't want to be spoiled, you should stop reading now. There are many great and flawed aspects to Into Darkness, and much better writers than I have surely covered those topics. The rest of this post will elaborate on the exception to my statement above. I won't be discussing the choice to have Khan played by Benedict Cumberbatch. That's another demon which should be explored in its own right.

*Star Trek: Into Darkness portrays women poorly. Uhura, the badass expert linguist, is the shell of a good character. Her fledgling relationship with Spock is explored, but by the end of the movie it's evident that exposition was only used as a means of examining the mindset of Spock, only to further the development between him and Kirk. Fortunately, Into Darkness has another shot of cultivating a woman character, and introduces us to another woman with multiple speaking roles: Dr. Carol Marcus.

From the moment Marcus is introduced it's clear that she appears to be an inevitable love interest for Kirk. I was excited to see what kind of woman would inevitably fall for the misogynistic Kirk, especially since she is immediately depicted as highly educated. But Into Darkness never explores her character. Before Into Darkness gets around to how Marcus can add to the U.S.S. Enterprise's team, she's already half-naked without explanation. We discover halfway through the movie that Marcus is the admiral daughter. This causes her some trouble when her father tries to decimate the U.S.S Enterprise while she's unknowingly on board.

Before I go any further, let me provide more of a primer. Every kind of media is guilty of overusing themes, conventions, and devises. There overused devises are referred to as tropes. Anita Sarkeesian's YouTube Channel, Feminist Frequency, does a great job of exploring how women are often depicted through overwrought tropes. Her 2011 series, Tropes vs. Women, is excellent at exploring six tropes in particular that are overused in film and TV. I highly encourage you to check that series out. As evident by the gigantic trope database maintained by TvTropes, when media is boiled down to its core, all plotlines and people are subjected to tropes. There is nothing new under the sun. However, problems arise when some groups of people are subjected to certain tropes more than others. Again, I recommend checking out Sarkeesian's videos if you'd like to learn more.

In Sarkeesian's newest video series, Tropes vs. Women in Video Games, one quote of hers in particular really caught my attention. After exploring the histroy of the Damsel in Distress trope in great detail, Sarkeesian delves into the motivations behind the overused trope itself.

"At its heart the damsel trope is not really about women at all, she simply becomes the central object of a competition between men. I’ve heard it said that 'In the game of patriarchy women are not the opposing team, they are the ball.'"

Even for the uninitiated, Star Trek has always been a revolutionary series of its time, depicting women and minorities as progressive characters. Does it's newest incarnation really fall victim to objectifying women -- even women of power?

Let's evaluate Uhura's portrayal some more. In the 2009 Star Trek film, Uhura is the love interest of both Kirk and Spock. Perhaps unintentionally, Uhura's depiction evolves little more than a plot device that pits her romantically between the Kirk and Spock. Spock is incredibly intelligent, but we get little to no explanation as to how Uhura falls in love with a man who is emotionally repressed. In this film, Marcus is ultimately just a game piece in the battle between Kirk, Khan, and her father. Marcus has her try at saving the day, attempting to talk the admiral out of blowing up the Enterprise, but her attempt is futile. She ends up taken captive, Damsel in Distress style, forcing Kirk and Khan to take matters into their own hands.

Portraying women characters as high-ranking, intelligent people is great. But it's dangerous to label women as seemingly intelligent people, and then develop them no further. It sends a message to all people that although women can achieve and contribute to great things, we never learn how or why. Uhura and Marcus are tools used as means to the end of someone else's narrative. This is the very definition of objectification.

I know this may sound radical. All films have flaws. Films can only be so long, and the development of some characters is inevitably stifled. People are objectified daily in life; it's impossible to avoid establishing ourselves, our friends, our families, and our neighbors as the heroes in our own narrative. But, as Rachel Rostad elegantly discussed after her brilliant slam poem on J.K. Rowling's depiction of Cho Chang, some groups of people are objectified much more frequently than others, namely: people that aren't straight cis-gender white men.

This isn't an attack on straight cis-gender white men. Nor is this an attack on straight people, cis-gender people, white people, or men. I understand that there are obviously going to be more straight cis-gender white men portrayed as heroes of a narrative, because there are unequivocally more straight cis-gender white men writing, directing, and producing films. I truly believe this oversight is done in good faith: I too would be hesitant to fully-develop characters I didn't feel I fully understood. Instead of developing a character that represents a marginalized group incorrectly; the writers assure only that they're a shadow of a person. Although women, queer people, trans people, and people of color have lived different lives than straight cis-gender white men (in large part because of movies like this), our innate differences don't change the fact that we're all human. From Kirk and Spock I know that that the writers of Star Trek can write humans pretty well when they try. So why can't they try to write about humans that look and feel more like me?

I truly believe films that depict women poorly are harmful for society. Films are not only a reflection of our thoughts, but mirror our interpretations of the societies we reside. When we see women depicted as passive characters, we assume women must be innately passive, which leads women to act passively. Don't believe me? Tell me why so few S&P 500 CEOs and world leaders are women.

This is not a clear cut issue, there were both problematic and promising moments in the characterization of Into Darkness's women characters. Marcus does have a moment in the spotlight when she successfully saves McCoy, refusing to give up while defusing the ticking torpedo. Uhura heroically volunteers to speak alone with the Klingons when she, Kirk, and Spock find themselves surrounded. She also helps save Spock while he battles Khan. These are substantial contributions, but I do believe that these depictions are still problematic. Boiled down, they are still plotlines used to further the heroes' journey. There is little exposition into the motivation behind almost all of Uhura and Marcus's actions or beliefs.

I am optimistic that raising awareness on these inequalities will catalyze a movement that promotes more diversity in the authors, directors, and producers of our life's own narratives, which in turn promotes more diversity in the heroes of those narratives. In order to accomplish these goals, we all need to be outspoken when these inequalities persist. I'm not saying we should stop enjoying the films we love. We need to be okay with critiquing and celebrating films we love most of all. I'm also not saying that Spock and Kirk can't be the heroes of their own adventures. Just that we also produce and promote quality films where characters like Uhura and Marcus are the heroes of their own adventures.

J.J. Abrams gave Sulu, portrayed by John Cho, a moment fronting the limelight, by giving him the captain's chair briefly in the middle of the film. When John Cho was interviewed about that experience, he reflects upon the past and future of Star Trek:

"It was fun to sit in the captain's chair and Sulu, not in our movies but in the previous iterations, does get his own chair (and ship), so I hope that that is the case in ours as well."

No one wants to take away the captain's chair from Kirk. But there's some room to share.

I Built This

The elongated title of this post is I Built This with the help of government --funded-- research and programs, infrastructure, China, my Dell laptop, outsourcing, the farming industry, my teachers, my family, my friends, construction workers, taxes, ExxonMobil, and many, many more. I thought that was a bit too long, so I took the liberty of shortening it.

Next week is the Republican National Convention (RNC), and weather permitting, it will be held in Tampa. The theme of the convention, announced last week, is "We Built This!."

If you haven't been following the election, the purpose of the theme is to further highlight the gaffe President Obama made on July 13th while campaigning in Roanoke. Even if you've already heard what he said, I encourage you to check out this entire clip (here's a video and transcription of his whole speech too):

"There are a lot of wealthy, successful Americans who agree with me -- because they want to give something back. They know they didn’t -- look, if you’ve been successful, you didn’t get there on your own. You didn’t get there on your own. I’m always struck by people who think, well, it must be because I was just so smart. There are a lot of smart people out there. It must be because I worked harder than everybody else. Let me tell you something -- there are a whole bunch of hardworking people out there.

"If you were successful, somebody along the line gave you some help. There was a great teacher somewhere in your life. Somebody helped to create this unbelievable American system that we have that allowed you to thrive. Somebody invested in roads and bridges. If you’ve got a business -- you didn’t build that. Somebody else made that happen. The Internet didn’t get invented on its own. Government research created the Internet so that all the companies could make money off the Internet.

"The point is, is that when we succeed, we succeed because of our individual initiative, but also because we do things together. There are some things, just like fighting fires, we don’t do on our own. I mean, imagine if everybody had their own fire service. That would be a hard way to organize fighting fires.

"So we say to ourselves, ever since the founding of this country, you know what, there are some things we do better together. That’s how we funded the G.I. Bill. That’s how we created the middle class. That’s how we built the Golden Gate Bridge or the Hoover Dam. That’s how we invented the Internet. That’s how we sent a man to the moon. We rise or fall together as one nation and as one people, and that’s the reason I’m running for President -- because I still believe in that idea. You’re not on your own, we’re in this together."

Even if you think this gaffe has been blown out of proportion -- and you do have to acknowledge that it was indeed a gaffe -- you have to recognize that it's now a major theme in this election. If Republican party is using it as the platform for their convention, they obviously think it has traction.

Obviously, the whole situation would have gone differently if Obama phrased his comment, "Somebody invested in roads and bridges... You didn't build that." He really shouldn't have interjected with "if you've got a business." That's where Fox News, conservative bloggers/radio, and the Romney campaign have been taking aim, shortening the attack to the infamous "If you've got a business -- you didn't build that."

However, I think the biggest flaw in Obama's speech is right after, when he said "Somebody else made that happen." Which on its face, is probably a true statement. I would confidently bet, if chosen at random, a business owner didn't directly put in the labor towards building the infrastructure contributing towards their business, nor did they do research that contributed towards the development of the internet. But their taxes did. That should be the crux of Romney's rebuttal, because it's a good one.

Unfortunately, instead there's mostly just blatant misrepresentation of Obama's comments in Romney's ads and speeches. Check out what Obama said right after. "The point is, is that when we succeed, we succeed because of our individual initiative, but also because we do things together." Obama's mistake is that he didn't preface his rant with that statement, or more effectively, pepper that sentiment into his rant. When he went off the cuff, I do believe that some of his true colors shined through. I think it's obvious Obama doesn't think that successful business owners -- successful people -- are paying their fair share in order to take credit for the accomplishments thousands of other nameless individuals contributed to, with either their tax money or their own labor. Maybe that's a stretch, but Obama's personification of 'Government' research and, oh yeah, his proposed tax plan, seem to give that away too. (Related: here's some fantastic charts detailing the differences between Romney and Obama's proposed tax plans.)

Obama wasn't disclosing any new information in his Roanoke speech; he was just more blatant about his beliefs. Yes, he gave a fumbled soundbite to the opposition that's too good not to use, but it also says a lot more than either side is giving credence.  The scope doesn't quite reflect the fundamental difference in policy between the candidates, but it is the fundamental difference in perception between them. Beyond the policy, it's up to you how you want to shape the perception of America. This is what Obama sees. This is how Romney responds.

As an end note, the thing I find most ironic thing about the RNC's "We Built This!" slogan is that the convention is slated to be held in Tampa Bay Times Forum Arena -- 62% of its construction was funded by the government. Maybe they should consider changing their theme to "We ALL Built (Most of) This!" But then again, I don't think that would have the same effect on either side. It's not very catchy -- and it's too cordial.

Patent Prosecution 101: Duty of Disclosure

Some background: A little over a month ago I began working as a biotech paralegal for an Intellectual Property (IP) law firm. Up until this point, my career path was narrowly directed towards microbial research, specifically in synthetic biology. However, I have always had an interest in law. Although I majored in biology and psychology, just for fun I took a Constitutional Law course during undergrad. Nevertheless, up until very recently my legal knowledge base was limited to the information learned in that class, my casual interest in the Supreme Court, and reading the occasional newspaper article.

I figured working as an IP paralegal would be a great combination geared towards my broad interests in science, law, and writing. So far I'm really enjoying it.

Obviously with my credentials I don't claim to be capable of thoroughly teaching anyone about the patent prosecution process. However, I thought it might be cool to share some of what I've learned about IP law while I'm still new, before I pick up on all of the legal terms that will convolute my explanations as incomprehensible to most. I apologize in advance if any of my information is not completely representative of the IP world. Again, I can only present what I've learned on a personalized basis.

I want to talk about duty of disclosure.

As a paralegal, the majority of my workload is spent on projects related to duty of disclosure. It's a similar practice to a researcher citing references utilized on their paper, thesis, or dissertation. In legalese these references are referred to as prior art (because the reference or 'art' related to your patent came prior to your invention, just like the references you cite for your paper come prior to your own publication). Related prior art can be other US patents or patent publications, foreign patents or publications, journal references, textbooks, poster presentations, a relevant email conversation with a coworker, your lab notebook, and so on.

Inventors have a duty to disclose all resources they utilized in the process of writing up their patents, just as they have a duty to disclose those same references in a research paper. Again, like science that means citing journal articles that may have results that completely contradict your own. Unlike science, it's really bad news if you find prior art that utilizes or lays claim to the same invention you do. Currently the law states that if you do not file an application for a patent within a year that your invention was made public (say in a journal article, news article, conference presentation, poster presentation, magazine, news story, etc.) then your invention enters into the public domain. If there is a remarkably similar, if not identical, invention referenced in prior art, an inventor must argue that the prior art is different in some characteristic way to their own invention.

Here is what I find most interesting about duty of disclosure. I can think of no fields other than science and law where you are obligated to disclose all references, even if those references negatively affect your case. In science, this duty is morally obligated: you will not further the discovery of science if you do not provide all of the information. In law, this duty is legally obligated. You have a duty to disclose everything relevant in the prior art about your invention, if you do not do so and are tried in court, your patent can easily be invalidated  later on -- even if the prior art you did not cite might not have had enough grounding to invalidate your patent during prosecution.

When you think about it, the majority of my day job is spent referencing information that will mostly just hurt an invention's case for patentability. It's like if a paramedic's job was to do all they could to help an HIV-positive patient contract the most virulent form of HIV. The doctor's job would be to then take over and try and cure the patient with every antiretroviral treatment available. If the patent examiner (a government worker who decides whether an invention is patentable) believes that an invention is invalid because of prior art, it is the lawyer's job to argue why that prior art is different from their invention, using every relevant argument available.

Interestingly enough, the prior art the lawyer is forced to argue against is one they likely provided themselves. If the lawyer is successful in their arguments, and their patent is allowed, then these arguments make their patent that much stronger against those (other inventors, companies, etc.) that may try to invalidate that patent's claims later on with other prior art. At the end of the day, if the doctor is able to successfully treat a patient with the most virulent form of HIV, you're going to want that person as your doctor.

In my transition from science to law, I find familiarity in the duty of disclosure. Yes, there are surely lawyers who deceive their duty to disclose every day, just as there are scientists who do the same in their articles. Overall, though, there's something comforting in continuing to work in a field where knowledge is laid out on the table for anyone's consumption, ultimately trusting your peers to decide the validity of your claims, the value of your findings.

Football: That Other Sport

I am a big NY Jets fan. Football is by far my favorite sport to watch. In the fall my Saturdays are usually locked for the Hokies and Sundays are spent watching the NFL from the 1pm kickoff until I go to sleep.

Recently, though, it's been the rest-of-the-world's football that's really grasped my attention.

This Thursday the U.S. Women's National soccer Team (USWNT) won gold for their third straight Olympics. They won by beating last year's World Cup winners, Japan, in a sporting battle that solidified their resilience after last year's defeat. They got there by scoring in the third and final minute of extra time in overtime of the semi-finals after coming back from being down three times in a truly historic match against Canada. This tournament isn't a dramatic exception either; last year's World Cup matches against Brazil and Japan also had their fair share of extra time goals and penalty kick wins. Even if it's not their goal, the USWNT is exciting to watch. Based on what I've read and heard, it seems like a lot of the country agrees.

So why is it that the Women's Professional Soccer (WPS) league, the top professional US women's soccer league in the country, collapsed earlier this year? You can't argue it was lack of interest. The league collapsed in-between the two most important tournaments for women's international soccer -- the World Cup and the Olympics. By the way, the WPS was the second time a women's national soccer league collapsed in less than a decade. The first was formed after the hype of the 1999 US Women's World Cup historic win. Obviously there's no lack of excitement in the game -- there's just a lack of interest.

I started watching the USWNT because they're really good: their stamina, skills and strength are unbelievable. They usually dominate the field, and if they don't, they'll fight until they do -- or until they can't anymore. They make it work when you're sure they can't. But they do anyways.

I kept watching the USWNT because they have unprecedented sportsmanship. Yes, they celebrate their accomplishments in style, but they compliment their competitors at the end of the game. If they ruthlessly go for the ball and hurt a player on the other team, they'll help her get back on her feet. They work unbelievably well together, and will praise their teammates accomplishments before they reflect upon their own in post-game interviews. When they do lose, they acknowledge their mistakes and the other team's successes, and drive to work harder in their next match.

I became obsessed with the USWNT because they're so accessible. They don't make millions of dollars while arguing for more, get in 20-person brawls with their teammates, and they aren't handed a starting role the moment they leave jail (mostly because none of them go to jail -- shocking, I know). They hang out with their families, happily sign autographs for fans, post videos on YouTube, and look like they're actually enjoying their sport when they play. I've always been bothered by the hyper-masculinity perpetuated by popular male professional sports, but I never realized how much better watching a sport could be if you actually respected all of the athletes on the field. It's so engaging when you can root for both the team and the players.

A new professional league was announced Thursday morning, right before the women were set to play Japan. The only reason I know is because I stumbled upon the information while writing this post. Now, without any foresight, hours before the gold medal match might have seemed like a decent time to announce the formation of a new league and build excitement. In retrospect, however, to me it seems like a huge publicity error. This news was completely overlooked by the women's win. And really, why release it when it's not much of a story at all? So far all that's been released is the location of half the teams. We don't even know what the league's name will be. No wonder no one really picked up the story, nor was it even relegated to a bottom paragraph in the vast majority of articles I've read about the team and their win. Definitely a bad start to something that's already going to be challenge to succeed.

I guess I'll go back to watching the NFL this fall, hoping that one day I can finally have a balance between watching football with a respectable league and respectable players. What's harder to change? The mentality of a downtrodden organization or the minds of players placed too high on the pedestal?

GOP VP Candidate Rep. Paul Ryan

Mitt Romney announced his VP pick, Rep. Paul Ryan, this morning. To summarize: Romney's putting all of his money on Ryan's policies. It seems like a very bold decision, especially for Romney who is categorically risk-averse. It means that he believes so far he's the losing candidate in this election -- and at least recently, I agree with him. It was becoming vastly apparently that Romney wanted to run solely as the anti-Obama candidate, and according to recent polls, the strategy wasn't working.

Libertarians should be excited about the pick, to quote The Washington Post's Ezra Klein:

"Ryan has told the Congressional Budget Office that his budget will bring all federal spending outside Medicare, Medicaid and Social Security to 3.75 percent of GDP by 2050. That means defense, infrastructure, education, food safety, basic research, and food stamps — to name just a few — will be less than four percent of GDP in 2050. To get a sense for how unrealistic that is, Congress has never permitted defense spending to fall below three percent of GDP, and Romney has pledged that he’ll never let defense spending fall beneath four percent of GDP."

Also, check out this chart of what his proposed budget would do to government spending down the line:

Ron Paul fans -- get excited. I guess it's finally time I read some Ayn Rand to grasp what the buzz is about. Ryan cites her as a huge inspiration.

I may not agree with Ryan's budget proposals, but I do respect the mere fact that he has proposals. If this is the future of the Republican party, I support the transparency. What I'm anxious to see now is how much Romney embraces Ryan's policies in the limelight, and how he casts them to Americans when they realize what they truly mean for their wallets. For that, I guess I'll have to just have to wait and see.