Category Archives: Law

Whether you are a lawyer or just interested in the law, chances are you have heard of Humphrey’s Executor. It seems that the case is always mentioned whenever pundits debate President Trump’s power to fire members of federal agencies.

Supporters of Rebecca Kelly Slaughter, formerly a member of the Federal Trade Commission, cite the Humphrey’s Executor decision to contest Trump’s right to terminate her. In that 1935 case, the Supreme Court ruled 9-0 that an FTC commissioner can be fired only “for cause,” which under the FTC Act is defined as “inefficiency, neglect of duty, or malfeasance.” Disagreement over policy, according to the Court’s holding, is not a sufficient basis for termination.

Trump’s supporters contend that the FTC, like all federal agencies, is part of the executive branch of the federal government. All members of that agency must be answerable to the President since he is the head of the executive branch. Otherwise, the federal agencies would constitute an unconstitutional fourth branch of government. They urge the Supreme Court to overrule Humphrey’s Executor.

But just who was this fellow Humphrey?

No sooner had the Supreme Court released its decision in Students for Fair Admissions v. Harvard, than Harvard, the losing party, released a statement of its own by President-elect Claudine Gay. The statement was apparently prepared in advance, in anticipation of a judicial defeat. Gay, while expressing Harvard’s intention to comply with the Court’s decision, struck a pose of defiance: “We will comply with the Court’s decision, but it will not change our values.”

She did not say what those values were.

She added that the decision “has … strengthened our resolve to continue opening doors.”

She did not mention the fact in opening its doors to some, Harvard has been closing them to others; namely Asian Americans.

Harvard’s post-decision statement represented a missed opportunity. This was the moment for Harvard to own up to its discrimination against Asian Americans and to apologize.

An apology would not have required Harvard to repudiate its admissions policies, far less to admit guilt. Harvard could have still insisted that its actions, in its view, were legal and moral, and that the law would ultimately vindicate it. It could have asserted that any harm done to Asian Americans was the unfortunate but unavoidable cost of remedying greater harms.

An apology would merely have required Harvard to acknowledge that in addressing what it sees as a long history of oppression of blacks by whites, Harvard has been hampering and harming Asian Americans.

Copyright and Artificial Intelligence (AI) may be on a collision course. The capacity to comb through vast troves of data to generate arguably novel stories, poems, artwork, music, and other expressive works, gives rise to an array of tough legal issues.

Are the generated works truly original and therefore subject to copyright? If so, who owns the copyright? And what scope of protection does such a copyright confer?

Answering these questions poses formidable challenges. But it’s important to put this in perspective. We’ve been here before. Copyright and technology have collided again and again over the ages. In fact, there were collisions before there were copyright statutes. In each case, solutions were found, and copyright emerged intact or even stronger.

Last week, the California Supreme Court decided to let stand a lower appellate court decision holding that bumble bees are “fish” under the state Endangered Species Act. Chief Justice Tani Cantil-Sakauye, anticipated (quite correctly!) that her ruling would puzzle the public. She wrote:

…[O]ur decision not to order review will be misconstrued by some as an affirmative determination by this court that under the law, bumble bees are fish. A better-informed observer might ask: How can the court pass up this opportunity to review the Court of Appeal’s interpretation of the Fish and Game Code, which seems so contrary to common knowledge that bumble bees are not a type of fish? Doesn’t this clear disconnect necessarily amount to “an important question of law” … warranting this court’s intervention, because the Legislature could not possibly have intended such a result?

Were things always that simple.

Well, as a matter of fact, some things are always that simple. It is, and always has been, a simple fact that bumble bees are not fish. Pretending that the law provides otherwise – even while acknowledging that “the Legislature could not possibly have intended such a result” – is worse than judicial error. It is a self-inflicted wound on the credibility of that beleaguered branch of government. Polls show that in recent years the public has already been losing confidence in our judicial system. Little wonder.

How did this happen?