One of the most important developments over the past few years is the Supreme Court’s decision in Alice v. CLS Bank – a decision that articulated a distinction between patent-eligible inventions, and patent-ineligible abstract ideas. The Alice decision has enabled many companies, including small businesses, to defend themselves from baseless patent infringement lawsuits based on patents on abstract ideas.
Last year, the Patent Office requested public comments and held a pair of roundtables, all focused on the public’s views regarding § 101. This week, they published a report summarizing those comments. There’s a lot in there, but I wanted to discuss a few important points highlighted in the report. The PTO presents multiple viewpoints, but the truth is this: computer-related industries, as a whole, are in favor of the Alice decision. And the evidence shows that they should be.
The Patent Office report correctly notes that the two industries that have seen the most impact from recent Supreme Court decisions on § 101 are life sciences (Myriad and Mayo) and computer-related industries (Alice). Summarizing the viewpoints expressed by the public, it states that the life sciences are united in favor of changing § 101, while computer-related industries are divided.
This is half right. The life sciences industry is essentially united. But so are computer-related industries. They’re united in favor of § 101 and Alice.
Intel? Google? Oracle? Amazon? Microsoft? Groups representing startups (Engine), the software industry (SIIA), high-tech and Internet companies (CCIA and IA), and the video game industry (ESA)? The PTO notes that they all supported the current state of § 101 and provided a long list of reasons why. Alice has helped startups and small businesses defend themselves from spurious patent lawsuits. It has provided a tool to reduce the cost of patent litigation. And it’s provided a sensible tool to weed out poor quality and overbroad patents that try to claim ideas, rather than solutions.
There is one major exception—IBM. IBM is most likely the single largest patent-holder in the U.S., but it’s seen 5 straight years of declining revenue and growth. (A fact which, in and of itself, should make you question whether the number of patents granted is actually indicative of innovation.) About the only place where IBM is growing is in the yearly “number of patents granted” figure; given that, IBM’s desire to prevent invalidation of the patent portfolio that’s become its crown jewels makes sense.
The PTO calls computer-related industries divided primarily because of the comments from IBM (and a couple small computer companies). But by the PTO’s standard, the life sciences industry has divided views also—after all, several life sciences companies took the time to file amicus briefs    in Myriad arguing against gene patentability. Not to mention the amicus brief from the Nobel Prize-winning discoverer of DNA, James Watson, or the public statement of Nobel Prize winner John Sulston explaining how gene patents can chill research and innovation.
When it comes to the industries that most rely on software, from large companies to small companies, there’s agreement that Alice is a good decision, and that subsequent developments from the Federal Circuit go in the right direction.
Despite fear-mongering from the anti-innovation lobby, the PTO’s report notes that investment trends have shown that Alice has been good for the software industry in terms of new startup formation, R&D spending, and investment. In the years since Alice, we’ve seen startups like Slack, Docker, and Cloudera launch and/or grow to be hugely successful.
In the 12 months immediately prior to the Alice decision, software company R&D spending was around 16.5 percent, while in the 12 months immediately after Alice, R&D spending increased to 27 percent.
In addition, there doesn’t appear to be any evidence that Alice’s impact on obtaining a patent harms startup formation and funding. The PTO quoted academics such as Robin Feldman (UC-Hastings), who confirmed that investors increasingly place less weight on patent activity when funding new startups, and Mark Lemley (Stanford), who confirmed that he has seen no evidence of a decrease in venture capital funding in the software field after Alice.
The PTO also cited to comments from associations of patent lawyers such as AIPLA and ABA-IPL that expressed concern that the Alice decision might impact innovation in the U.S. But their comments were just that—concerns, lacking any evidence of a real impact.
There were also comments that Alice had devalued patent portfolios. Financialization of everything aside, to the extent there’s been a devaluation in patent portfolio values, that devaluation seems to represent a return to an accurate value. Patent portfolio prices were a bubble, propped up by a legal structure that made it hard to combat a patent infringement lawsuit and hard to actually invalidate an invalid patent. Alice, inter partes review, and other recent trends in patent law have popped that bubble and returned patent portfolio valuation to a value closer to the actual value of those patents. Any devaluation, in other words, is a feature, not a bug.
The last point I’d draw out is one that the PTO doesn’t—probably because, for obvious reasons, they focus on patents. Life sciences companies don’t rely exclusively on patents, and they don’t exclusively deal with the PTO. They also benefit from FDA-managed exclusivity provisions.
The primary exclusivity the FDA offers is this: if you come up with a new drug and the FDA approves it, then (whether or not you have a patent—in fact, even if it couldn’t be patented) you get 5 years in which no one else can make or sell that drug. It’s sort of like a patent, but only for drugs, and your term runs from when the FDA approves your drug, not from when you file the application. And it isn’t based on new ideas; it’s based on a drug being approved by the FDA for the first time.
In other words, if I proved tomorrow that a cocktail of ibuprofen and acetaminophen, mixed together, cured cancer, I could get 5 years of exclusivity, even though that mixture is old and obvious.
This means that, even if Mayo and Myriad (the life sciences equivalent cases to Alice) won’t allow a drug-maker to get a patent, they still have an exclusive right to manufacture and sell the drug after it’s approved. Essentially, the FDA gives pharmaceutical companies a chance to make back what they spent on research, development, and clinical trials, completely aside from any patents they might have received.
Now, there’s one sizable area of life sciences where this isn’t true. The FDA doesn’t provide exclusivity for every FDA-approved subject. One area lacking exclusivity is diagnostic methods—techniques for diagnosing illnesses. Much of the life sciences community has focused on diagnostic methods as the reason they think § 101 needs to change.
But protecting diagnostic methods doesn’t require changing § 101. Changing § 101 would endanger the advances we’ve already seen in computer-related industries. Given these dangers, other avenues, ones that are more narrowly targeted, are worth considering. One conceivable approach, and one we already use elsewhere in life sciences, would be to provide FDA-managed exclusivity for diagnostic methods, similar to the drug exclusivity described above. And this isn’t the only approach. If we think Mayo and Myriad have affected diagnostic methods so significantly that it merits a legislative response, that doesn’t necessarily demand we rewrite the foundation stone of patent law. There are alternatives. Shouldn’t those be considered first?


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Mr. William V. Allen, of Madison, Neb., and Mr. W. C. Bibb, of Louisa, Va., for petitioner.
On March 12, 1908, the petitioner, Friederichsen, contracted in writing to exchange land which he owned in Nebraska for land in Virginia owned by the respondent, Mary C. Gilmore, who in the transaction acted through her agent, Edward Renard, the decedent of the respondent G. H. Renard. We shall refer to the parties as they were in the courts below, Friederichsen as plaintiff, and Gilmore and Renard as defendants.
On September 22, 1908, Friederichsen filed a bill in equity in the United States District Court for the District of Nebraska, praying for a decree canceling the contract and the deed made pursuant thereto and for damages sustained, on the ground of fraud practiced upon him.
Defendants answered denying the fraud charged, and on August 20, 1912, a master, theretofore appointed in the case, reported that Friederichsen at the time of the exchange 'was below the average in mental ability'; that he had been induced to enter into the contract by the fraudulent representations of Renard, as alleged; and that he had sustained damage in the sum of $5,880. But the master also reported that Friederichsen, after taking possession of the Virginia lands, after filing his bill in the case, and after having had time to discover the condition [247 U.S. 207, 209] and value of the land, had cut down a considerable amount of timber growing thereon.
Complying with this order, on September 25, 1913, the plaintiff filed an 'amended petition' on the law side of the court, and, upon the same facts stated in the original bill in equity, prayed for a judgment for damages. The defendants filed answers the same in substance as those filed in the equity suit, but adding the defense that the cause of action stated in the amended petition was barred by the Nebraska four-year statute of limitations.
When the case came on for trial, and after it was stipulated by counsel for the defendants that the plaintiff had introduced sufficient evidence to entitle him to recover a verdict, unless barred by the statute of limitations, it was ruled 'that the cause of action stated in the plaintiff's amended petition was barred by the statute of limitations of the state of Nebraska and that the filing of the amended petition did not relate back to the commencement of the action in such a way as to prevent the bar of the statute,' and a verdict was directed for the defendants. The judgment entered on this verdict affirmed by the Circuit Court of Appeals for the Eighth Circuit, is now before us for review on writ of certiorari.
Thus the case presents for decision the single question, whether the filing of the 'amended petition' on the law [247 U.S. 207, 210] side of the court on September 25, 1913, was the commencement of a new action more than four years after the fraud was discovered (which must have been prior to the filing of the bill in equity on September 22, 1908), which was therefore barred, or whether the proceeding at law was but pursuing toward a conclusion, in another form, the same cause of action stated in the original bill, so that the suspension of the statute of limitations continued, which began with the date of the service of the subpoena in chancery.
It is argued by the respondents that in the bill in equity the petitioner disaffirmed, while in the amended petition he affirmed, the contract of exchange; that the latter, for this reason, states a new and different cause of action from the former, and that, against this new cause of action, the running of the statute of limitations was not arrested until the amended petition was filed, and that then it had become barred.
But the allegations of fraud in the two papers are the same in substance, and practically the same in form, the only substantial difference between them being that the prayer for relief in the bill is for mutual return of lands, with incidental damages, while in the amended petition, it is for damages alone. The cause of action is the wrong done, not the measure of compensation for it, or the character of the relief sought, and, considered as a matter of substance, the change in the statement of that wrong in the amended petition cannot in any just sense be considered a new or different cause of action.
It is settled upon reason and authority that the conversion of a suit in equity into an action at law or vice versa is not alone sufficient to constitute the beginning of a new action and that with respect to the statute of limitations it is a mere incident in the progress of the original case.
It was so held by the Supreme Court of Nebraska long [247 U.S. 207, 211] prior to the origin of the controversy we have here, when an action in ejectment was converted into a suit to redeem (McKeighan v. Hopkins, 19 Neb. 33, 26 N. W. 614), and again, in Butler v. Smith, 84 Neb. 78, 120 N. W. 1106, 28 L. R. A. (N. S.) 436, in a similar case in 1909, the question was held not to be an open one.
In Smith v. Butler, 176 Mass. 38, 57 N. E. 322, followed with approval in 1917 in Reynolds v. M., K. & T. R. R. Co. (Mass.) 117 N. E. 913, the Supreme Judicial Court of Massachusetts declared that it had been the settled practice in that commonwealth for a period of over fifty years to allow actions at law to be amended into suits in equity, in place of putting the plaintiff to a new suit, and to 'allow those amendments on the ground that if a new suit were brought, it would be barred by the statute.' It will suffice to add that in Schurmeier v. Connecticut Mutual Life Ins. Co., 171 Fed. 1, 96 C. C. A. 107, the Circuit Court of Appeals, a judgment of which we are here reviewing, held that the amendment of a law action into one in equity for the express purpose of meeting an anticipated defense of the statute of limitations, did not change the cause of action and that the amendment related to the time of the commencement of the action.
There remains to be considered the ground on which the lower courts chiefly rested their judgment, viz.: That, in disaffirming the contract by his suit in equity, the petitioner elected to pursue one of two inconsistent remedies open to him, until the period o the statute of limitations had expired, and that he therefore cannot escape that bar when afterwards, by amendment of his pleadings, he seeks to affirm the contract and recover damages.
No matter what may be thought of the merit of the doctrine of election of remedies, it is a long observed and deeply entrenched rule of procedure. But, for obvious reasons, it has never been a favorite of equity and it has been specifically decided by this court that the two forms of relief pursued, before and after the amendment of the [247 U.S. 207, 212] pleadings in this case, are not so inconsistent but that both may be prayed for in one bill in equity and either granted, as the evidence and the equities of the case may require. Thus, in Hardin v. Boyd, 113 U.S. 756 , 5 Sup. Ct. 771, in a suit to annul a land contract for fraud the trial court permitted an amendment to the bill, adding a prayer in the alternative for a decree affirming the contract, granting a lien for the unpaid purchase money and for foreclosure. The decree in the case was entered on the alternative prayer.
Thus in express terms was it decided that a properly framed prayer would have allowed the petitioner the relief in equity which he sought before the amendment or, in the alternative, that for which he now prays, and to this it must be added, that the order which converted his suit in equity into an action at law was made in the exercise [247 U.S. 207, 213] of a chancellor's discretion under warrant of an equity rule.
At best this doctrine of election of remedies is a harsh, and now largely obsolete rule, the scope of which should not be extended, as it must be in order to reach the case at bar, for here the 'amended petition' was not filed by petitioner's counsel of their own motion, but on the order of the court, entered in its discretion, to promote the ends of justice.
Thus, we are brought to the conclusion that since the two remedies asserted by the petitioner were alternative remedies, and since the order made, requiring the conversion of the suit in equity into one at law, was entered by the court sitting in chancery, for us to affirm the judgment of the Circuit Court of Appeals that the petitioner, in obeying the order of the trial court, made a fatal choice of an inconsistent remedy, would be to subordinate substance to form of procedure, with the result of defeating a claim which the respondents stipulated had been sufficiently established to justify a verdict against them. This we cannot consent to do.
The questions of procedure being thus cleared away, there is little further difficulty with the case. As we have seen the 'amended petition' was not filed in a new case but was simply a step forward in progress toward settlement of the original controversy; the allegations of fact are precisely the same in substance, and almost the same in form, as they were in the original bill and therefore looki g to substance and realities, they cannot be regarded as stating a new cause of action. The case falls clearly within the scope of the principle of the decisions of this court in Texas & Pacific Ry. Co. v. Cox, 145 U.S. 593 -604, 12 Sup. Ct. 905; Atlantic & Pacific R. R. Co. v. Laird, 164 U.S. 393, 401 , 17 S. Sup. Ct. 120; M., K. & T. Ry. Co. v. Wulf, 226 U.S. 570 , 33 Sup. Ct. 135, Ann. Cas. 1914B, 134; Seaboard Air Line Ry. v. Renn, 241 U.S. 290 , 36 Sup. Ct. 567; Washington Ry. & El. Co. v. Scala, Adm'x, 244 U.S. 630, 640 , 37 S. Sup. Ct. 654. [247 U.S. 207, 214] The decision in Union Pacific Ry. Co. v. Wyler, 158 U.S. 285 , 15 Sup. Ct. 877, is so clearly distinguished in the Wulf Case, supra, from the principle of tnese decisions that additional comment would be superfluous.
It results that the judgments of the Circuit Court of Appeals and of the District Court must be reversed and the cause remanded to the latter for further proceedings in conformity with this opinion.

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There are three elements to any personal injury case.
Element #1: Liability: How did the accident happen and who’s to blame? The concept of liability is straight forward in many cases. A drunk driver runs a stop sign resulting in catastrophic motor vehicle accident. Establishing liability against the drunk driver is easy to establish. The driver was drunk and on top of that, they ran a stop sign. The drunk driver is at fault of the car accident. Liability is established. Sometimes liability isn’t so clear and an engineer or another expert will need to be retained to look in to this issue. This expert will be able to tell us whether or not we have a case and whether or not we can place blame on another party of the event giving rise to the litigation.
Element #2: Damages/Injuries: What are the injuries from the car accident. Is it a simple bruise which goes away in a week, or are the injuries severe, like a brain injury along with multiple orthopedic injuries. Understanding this concept is somewhat straight forward as well for many accident victims because it’s easy to visualize and more tangible than other legal concepts. If Superman were involved in a car accident, chances are he wouldn’t have sustained any injuries or damages. Hence: he wouldn’t have much of a personal injury case if Superman weren’t injured. Sorry Superman.
Element #3: Causation: : There must be some form of connection between the Bad Guy Defendant’s conduct and the Accident Victim’s injuries. This term is sometimes called “remoteness of damage” or “proximate cause“. Either way, this third element is the most difficult for accident victims to understand.
Sometimes causation is easy to prove. Suzy broker her leg in a car accident. Suzy is seeking compensation for her broken leg from the car accident. Thomas slipped and fell and bumped his head. Thomas is seeking compensation for his head injury from the slip and fall accident.
But sometimes causation is not so simple/clear. Johnny was in a car accident and hurt his knee. Now Johnny complains of headaches, fatigue and shortness of breath. Alice was bit by a dog and sustained abrasions to her legs. Now Alice is deeply depressed and can’t sleep. Marvcus lived in a mouldy apartment building. Now Marvcus has a bad cough. Marvcus has since moved out of the apartment building but still has a bad cough and can’t sleep properly.
The focus of this edition of the Toronto Injury Blog Post will examine the concept of Causation, along with the pitfalls many of us encounter along the way. It’s dedicated to a fellow colleague of mine based out of Toronto who gave sage advice to me in my youth and was a mentor of sort in assisting me in getting in to law school, so where we go.
NO OTHER TOPIC IN THE LAW OF TORTS HAS OCASSIONED SO MUCH CONTROVERSY AND CONFUSION AS THE LAW OF CAUSATION.
One source of the confusion is a factual question whether the relation between the Defendant’s breach of duty or negligence and the Plaintiff’s injury is one of cause and effect pursuant to scientific or objective standards. If such a casual relationship does NOT exist, that puts the Plaintiff’s case to an END. No policy can be strong enough to warrant the imposition of liability for loss to which a Defendant did not cause, or contribute to.
It isn’t enough for a Plaintiff or a lawyer to say that the Defendant’s conduct or breach of duty caused the injury. This does not accord with scientific or objective standards. We need hard evidence. We need some form of proof.
How do we prove that scientific or objective standards were or were not met in Court? With experts. Lots and lots of experts.
If causation is an issue in ANY personal injury case, you will need an expert to breach that causation bridge and show the insurer, judge and jury that the Defendant’s conduct or breach of duty did in fact CAUSE the harm to the Plaintiff. Without expert evidence, the case won’t be a strong one. Be prepared to spend the money if there is a causation issue.
The second element which causes confusion for causation involves the question whether or to what extent the Defendant should have to answer for consequences which his/her conduct or breach of duty has or hasn’t produced. There must be some reasonable connection between the harm threatened, and the harm done.
This concept can tie in to liability, but it can also tie back in to causation as well. We frequently see this in medical malpractice or mold cases.
How much of the medical malpractice or mold exposure can be tied back to the doctor or owner of the moldy building? How did the doctor’s behaviour or breach of duty cause or contribute to the injuries. All the doctor was doing was performing their job as a doctor. Nothing more, nothing less.
What we commonly see applied in determining causation in Canadian Courts is a “robust and pragmatic approach” to fact finding in relation to causation set out in Snell v. Farrell, 1990 CanLII 70 (SCC),  2 S.C.R. 311,  S.C.J. No. 73, at p. 330 S.C.R., and concluded [at para. 73] that “the plaintiff has established, on a balance of probabilities, that the defendants’ negligence materially contributed to the injury“.
Causation is established where the plaintiff proves to the civil standard on a balance of probabilities that the defendant caused or contributed to the injury: Snell v. Farrell, 1990 CanLII 70 (SCC),  2 S.C.R. 311; McGhee v. National Coal Board,  3 All E.R. 1008 (H.L.).
The general, but not conclusive, test for causation is the “but for” test, which requires the plaintiff to show that the injury would not have occurred but for the negligence of the defendant: Horsley v. MacLaren, 1971 CanLII 24 (SCC),  S.C.R. 441.
The “but for” test is unworkable in some circumstances, so the courts have recognized that causation is established where the defendant’s negligence “materially contributed” to the occurrence of the injury: Myers v. Peel County Board of Education, 1981 CanLII 27 (SCC),  2 S.C.R. 21, Bonnington Castings, Ltd. v. Wardlaw,  1 All E.R. 615 (H.L.); McGhee v. National Coal Board, supra. . . .
Another great case to read is Mustapha v. Culligan Water of Canada. It’s a case out of Windsor, ON which went all the way up to the Ontario Court of Appeal in Toronto; and then to the Supreme Court of Canada in Ottawa. In this case, a man found a fly in his bottle of Culligan Springs water and suffered nervous shock. The problem with the Plaintiff’s case was the concept of foreseeability (which also falls under causation). This is a great case to read for the Supreme Court of Canada’s analysis on this issue.
In order to establish causation, a Judge must ask herself as per Athey v. Leonati, whether “the plaintiff has established, on a balance of probabilities, that the defendants’ negligence materially contributed to the injury“. In answering this question, the trial must adopt the “robust and pragmatic approach” to fact finding in relation to causation permitted by Snell v. Farrell.
As a rule of thumb, I tell clients to apply the “but for” test to the fact pattern. “But for” the actions/breach of duty/negligence of John Doe, the injuries to Jane Doe would/would not have occurred.
As noted above, the “but for” test does not always apply. It all depends on the facts.
Think of causation as a bridge between liability and damages. In a successful injury case, there has to be a firm bridge which links liability and damages. If the bridge isn’t stable, or does not exist, the case will fail.
As in life, BUILDING BRIDGES doesn’t come cheap. They cost a lot of money. The same applies to establishing causation where it’s an issue in a law suit. Finding a expert to bridge that gap isn’t wasy, and doesn’t come cheap. Bridges can also be destroyed. A tactful and experienced lawyer will know how to crack away at the foundation of that bridge to destroy an accident victim’s case. Attacking their credentials, methodology, even the source documents they were provided in formulating their opinion/hypothesis are all great tools to refute expert testimony. Having an expert of their own is an even stronger tactic.
The image depicted in this Toronto Injury Lawyer Blog post is that of the Ambassador Bridge in Windsor. Fitting it would be the image of a bridge with all of this talk about causation. Below the bridge, you’ll see a large SPICE BOAT. I’ve included the image of the spice boat for my colleagues in Windsor ON who hear their whistles along the Detroit River every half hour of so.

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Main Walk, from Leigh to Penshurst: 13½ km (8.4 miles). Three hours 15 minutes walking time. For the whole excursion including trains, sights and meals, allow at least 8 hours.
Circular Walk, from Leigh: 18 km (11.2 miles). Four hours 25 minutes walking time.
Alternative Walk, from Penshurst to Leigh: 15½ km (9.6 miles). Three hours 45 minutes walking time.
Alternative Circular Walk, from Penshurst: 12½ km (7.8 miles). Three hours walking time.
Explorer 147. Leigh Station (map reference TQ546462) and Penshurst Station (in Chiddingstone Causeway, TQ519467) are both in Kent, 4 km and 7 km W of Tonbridge respectively.
3 out of 10 (4 for the Circular Walk).
This is a group of walks to and from adjacent stations on the Redhill–Tonbridge line, all centred around the hamlet of Hoath Corner and its traditional rural pub: “all dogs very welcome…children must be kept on a lead!”. The link routes to and from Leigh station have been taken from the Leigh to Tunbridge Wells walk (1–15) and the Hever to Leigh walk (1–19), but the other sections are in less familiar Wealden territory.
The Main Walk options start from Leigh station and head west through parkland to the attractive village of Penshurst. After crossing the River Eden there is a gentle climb from Salmans Manor to the lunch pub in Hoath Corner. The Alternative Walk options start from Penshurst station (almost 3 km north of its village, in Chiddingstone Causeway) and head south through low-lying farmland in the Eden valley to join the other route at Salmans Manor.
From Hoath Corner all routes head north to another tiny settlement at Hill Hoath, where there is a choice of endings. You can either continue through the picturesque village of Chiddingstone and return from Penshurst station, or take a longer route looping back through Penshurst village to Leigh station.
Both Penshurst and Chiddingstone have interesting historic houses which you could visit, and all the routes go through at least one of these villages. Penshurst Place is a well-preserved medieval manor house with an attractive formal garden, the home of the Sidney family since the 16thC. It is open weekends from mid-February to March, and daily from April to October; admission (2018) is £11.50, or £9.50 for the gardens only. Chiddingstone Castle is a castellated manor house rebuilt in the 19thC, containing an unusual collection of art and curiosities left behind by its late owner, Denys Eyre Bower. It is open Sun–Wed from April to October; admission (2018) is £9.50.
In addition to the routes outlined above you could simply omit the outer loops on those walk options which feature a crossover design, making two very Short Walks. Either of these would be a good choice if you wanted to spend time visiting Penshurst Place.
The fairly short Alternative Circular Walk (which does not go through Penshurst itself!) has been included here for completeness. A new Penshurst Circular walk (#300) contains some more satisfying circular routes from this station, the longer versions of which take in Bough Beech reservoir to the north of the railway line.
Leigh and Penshurst are adjacent stations on a branch line with an hourly service between Tonbridge and Redhill (through trains from London were withdrawn in 2018). It is usually quicker to travel from Charing Cross and change at Tonbridge (taking about 1 hour); travelling from Victoria or London Bridge and changing at Redhill can be 10–15 minutes longer. Tickets are valid on both routes. The suggested ticket is a return to Penshurst if you travel via Tonbridge and a return to Leigh (Kent) if you travel via Redhill, but in practice it is unlikely to matter as the fare from London is the same.
If you want to finish the walk in Penshurst village, Metrobus 231 & 233 go via Penshurst station to Edenbridge in one direction and Tunbridge Wells in the other (Mon–Sat).
If driving, there is no car park at Leigh station but roadside parking is available. There is a small private car park on the south side of Penshurst station where a sign says the charge is £3 per day.
Take the train nearest to 10:00 from Charing Cross to Leigh for one of the Main Walks, or nearest to 10:30 to Penshurst for the Alternative Walks, changing at Tonbridge in both cases.
The intended lunch pub for all but the two Short Walks is the attractive Rock Inn (01892-870296) in the hamlet of Hoath Corner (after 7½ km if starting from Leigh; 6¼ km from Penshurst). This out-of-the-way rural pub has some outside seating at the front and a small back garden. It is closed Mondays and as with any small pub it is a good idea to call beforehand to check it is open (and serving food).
On the walk routes which go through Penshurst you could get a pub lunch at the up-market Leicester Arms Hotel (01892-871617) or a light meal at the Porcupine Pantry (see below). However, this village is better placed on the two Short Walks and comes relatively early or late on the other walk options.
On the walk routes finishing at Penshurst station you could stop for a late pub lunch in Chiddingstone at the Castle Inn (01892-870371), which reopened in April 2017 after being closed for nearly a year.
On the walk routes finishing at Leigh station there are two options for tea in Penshurst. In the centre of the village the Fir Tree House (01892-870382) tearoom has a large garden and is open from 2.30-6pm, but is closed on Mondays (except Bank Holidays, when it is closed the following Tuesday; it might also be closed on other weekdays in winter). A good alternative is the Porcupine Pantry (01892-870307), just outside the main entrance to Penshurst Place and open to non-visitors; it has indoor and outdoor seating and is open daily to 6pm.
On the walk routes finishing at Penshurst station there are two good tea places in Chiddingstone. The Tulip Tree (01892-871504) in Burghesh Court, behind the Chiddingstone Stores, is a popular tearoom which is open daily to 5pm. On days when it is open you are spoilt for choice as you can visit the equally good Chiddingstone Castle Tea Room (01892-872746) and explore the grounds without necessarily paying to visit the house.
There are conveniently-placed pubs near both stations, but in Leigh the Fleur-de-lis (01732-832235) is sometimes closed in mid-afternoon. In Chiddingstone Causeway the Little Brown Jug (01892-870318) is normally open all day and serves tea and coffee as well as normal pub fare.
If you doing one of the Alternative Walks from Penshurst station, start at §3.
Head south from the station along the road and turn right onto a footpath. Follow this through the Penshurst Place Estate, veering left after 1½ km to go downhill, past the lake and through Penshurst Park. Pass to the right of Penshurst Place and go through the churchyard to the B2176. Turn right onto the road to enter the village.
This section is the same as the start of Walk 1–15.
From either platform at Leigh station, take the path down to the road. Turn left and walk along it for 250m, taking care as there is no pavement. At Paul's Hill House turn right up a rough track which soon enters the Penshurst Place Estate. Where it comes to an open field, follow a grassy path across it to the far left-hand corner.
Continue in the same direction along a broad tree-lined avenue for 1 km, ignoring a footpath off to the right after 100m and another to the left after 500m. Eventually, where another footpath joins from the right, turn left downhill along another tree-lined avenue towards a lake, with Penshurst Place beyond.
After going through a gate, the right of way continues ahead for 150m and then turns half-right at a footpath signpost, but most walkers bear right onto a clear grassy path cutting off this corner. Go through a gate by the lifeless trunk of the veteran Sidney Oak1 (with a plaque recording that it expired in 2016) and continue alongside a fence, with the lake and a line of clipped yew trees on the other side.
Follow the grassy path up to a kissing gate in the next fence. Go through this and head S across the parkland towards the right-hand side of Penshurst Place. After passing a cricket pitch on your left, cross a driveway flanked by two metal kissing gates. Continue towards the corner of Penshurst Place's hedge-topped stone wall and keep ahead with the wall on your left-hand side.
At the end of the wall, go through another kissing gate and follow a path through the churchyard of St John the Baptist church2 (which is worth visiting; its entrance is on the south side). Leave the churchyard through an archway3 and go past the picturesque houses in Leicester Square4 to the B2176. Turn right onto the road to enter the village, soon coming to the Leicester Arms Hotel (a possible early lunch stop) on your left.
If you are doing a Short Walk, go to §11.
Head south-west out of the village on the B2188. At the school, turn right into a lane and follow this to the Warren. Keep ahead along a footpath which crosses the River Eden and continues to Salmans Manor.
Continue past the pub and keep left at the road junction in the centre of the village. Go along the B2188 for 200m, passing some attractive old buildings5. Immediately after passing the primary school, turn right into a lane (The Warren). Stay on this lane for 600m, eventually passing a row of cottages.
Where the lane ends, keep ahead down the right-hand edge of a large field. In the bottom corner go through a metal gate and veer right across the grass to a footbridge over the River Eden6. Cross this and continue on an enclosed path.
In 200m go through a metal kissing gate and turn right along a narrow fenced path. This takes you around two edges of a large field, with two more kissing gates along the way. After the second of these, do not continue on the broad grassy track ahead (with a tall hedge on its left), but turn right to head NW on another wide track.
The track soon comes to a tarmac lane by the buildings of Salmans Manor. Turn left briefly onto the lane, but instead of following it round to the right go through a fieldgate (or a wooden side gate) to continue in the same direction on a tree-lined track.
A short detour up the lane would give you a fine view of a large mill pond opposite a particularly attractive oast-house conversion.
Leave the station on its southern side and take a footpath initially heading west, then turn left onto one leading to Vexour Bridge. Cross the River Eden and continue on the footpath going past Vexour and Chantlers. Turn left onto a lane and follow it through Wellers Town.
If you arrived on a train heading towards Tonbridge, cross the tracks by the footbridge to the westbound platform. Leave the station on its southern side and bear right through a small parking area towards a wooden fieldgate. Cross a stile to its left and go along a grassy track, with a tall hedge on your right. Continue in the same direction across the next field.
On the far side turn left along the field edge. In 150m turn right through a metal fieldgate, as indicated by a footpath marker. Go along the left-hand edge of a small field and cross a stile beside another fieldgate into a much larger field. Continue briefly along its left-hand edge, but in 100m go over a stile on your left to head S along the edge of another field, with a line of trees on your right. In 200m go through a gap and keep ahead, now with a wire fence on your right.
At the end of this field go over a stile into another field. If you continue in the same direction you will come to a wide bridge over a stream in a gap in the trees, but a slightly shorter (and potentially less muddy) route is to head for the field corner to its right, where there is a footbridge over the stream. Either way, head SW for 300m across the next field (turning half-right if you crossed the wider bridge), aiming to pass just to the right of a projecting group of trees.
On the far side go over a stile and turn left onto a lane to cross the River Eden6 on the attractive Vexour Bridge. On the other side keep ahead onto a tarmac driveway where the lane swings right, as indicated by a footpath signpost. In 100m turn right by another signpost onto a short path going up through a belt of trees into the corner of a large field. Keep left and go along its edge, still climbing and passing the buildings of Vexour on your left.
In 150m keep ahead at a footpath signpost by a large oak tree (the path from the right is one of the return routes from Chiddingstone). In a further 150m, however, turn right (with no signpost) on a grassy strip towards the right-hand edge of some trees surrounding a few houses. On reaching these turn left to go alongside them for 60m, then turn right and make your way past the houses onto a long straight driveway. Follow this out to a lane and turn left onto it.
You now have 600m of road walking, eventually going through Wellers Town. About 75m after passing the last house in this hamlet, turn left off the lane at a footpath sign, going over a stile to the right of a metal fieldgate into a field. Across the hollow to the right you can see what looks like a long low building but is actually a trompe-l'oeil: the back of a large barn at Wat Stock has been painted to resemble a manor house.
If you are doing a Short Walk, go to §13.
Turn left off the lane onto a footpath leading to Wat Stock. Continue on a bridleway heading south-east and then south to Salmans Manor.
Go across the grass, aiming a little to the left of the building and passing some isolated trees in the field. As you go down the slope you will see a footbridge over a ditch in the line of trees at the bottom. Cross this bridge and go through a metal kissing gate into a field.
Make your way straight up the field towards the left-hand end of the building. Go through a metal fieldgate and turn right onto a farm track, passing the derelict barn. At the far end of the barn turn left onto a tarmac lane, passing some cottages. The lane goes through a small wood, veering right and left past a large pond, then continues between hedges. At the entrance to Abbotsmerry Barn follow it round to the right and down a long slope.
At the bottom you come to the buildings of Salmans Manor, with a large mill pond opposite a particularly attractive oast-house conversion. Shortly afterwards, where the lane curves left, turn right through a fieldgate (or a wooden side gate) onto a tree-lined track.
Leave Salmans Manor on a footpath heading west, climbing gradually through fields, woods and the edge of Harden Vineyard. Soon after the path joins a track by Oakenden Farm, turn right and take the path through Puckden Wood to Hoath Corner.
Go along the track for 100m, with glimpses of the mill pond on your right. Just before a metal fieldgate leading into a large field, turn left through a kissing gate and climb a short flight of steps. This leads through another kissing gate into the field where you continue up its left-hand edge.
In 150m turn left through a wooden kissing gate into a small enclosure, leaving it by a metal kissing gate in the opposite corner. Bear right and go across a small fenced-in field to another gate. Go through this and continue along the field edge, passing Harden Vineyard on your left. At the end of the vineyard go over a stile and through some trees to a path T-junction. Turn right and follow the path round to the left.
In 100m you come to the edge of the wood and go over a stile into a more open area. Follow the enclosed tree-lined path gently uphill between two large fields. At the top cross a stile onto a path through a belt of trees, joining a driveway by the entrance to a house “Skipreed”.
The final part of this section needs some care. About 100m along this drive, opposite a house “Oakenden”, turn right up a few steps in the earth bank. Go over a stile and along the left-hand edge of a field (with a distant view of Penshurst Place away to your right). At the end of the hedge, go over a stile on the left into the corner of another field.
Follow the right-hand of two grassy paths across this field (moving slightly away from its left-hand edge). On the far side go over another stile and downhill through Puckden Wood. At the bottom of the slope, the path curves right and then veers left to leave the wood. Climb a broad grassy path between fences and continue along a short driveway past some houses to a road junction in the hamlet of Hoath Corner. Follow the road round to the right to find the suggested lunch stop, the Rock Inn, on the right-hand side.
From Hoath Corner, take the lane heading west for a short distance and turn right onto a footpath which goes via Trugger's Gill to Stock Wood. Turn right at a path junction and follow this footpath through woods and fields to reach Hill Hoath.
From the pub, return to the road junction and fork right onto the narrow lane heading W, signposted to Markbeech. In 150m, turn right at a footpath sign to go down a path between fences. After crossing a stream the path continues along the right-hand edge of some rough grassland, heading NW.
Just before the far corner follow the path into the trees and down through a small wooded glen, then back up into the corner of a large field. Keep right, initially alongside a projecting piece of woodland. Where these trees end, bear slightly right across the field to find a path leading into a large wood on the far side.
The woodland path comes to a T-junction with footpath markers where you turn right onto a potentially very muddy path. After it bends left you go past a sign welcoming walkers to Stock Wood. Keep to the right of a horse jump and continue on a path between hedges, now with fields on both sides.
At a path crossing near another horse jump, go through a metal kissing gate on the right and continue on a well-trodden grassy path for about 500m, heading NNE. At the end of the field go through another kissing gate, down a short slope to a gap in the hedge ahead and turn right onto an earth track. This leads into a short lane going through the hamlet of Hill Hoath, where you pass some houses (including a renovated half-timbered cottage) and reach a three-way road junction.
If you are doing a version of the walk finishing at Leigh station, go to §10.
Take the lane heading north to the entrance to Chiddingstone Castle. If the castle grounds are open you could go through them to the village, otherwise continue along the road and turn right at the crossroads to reach the village.
At the junction keep left to head N on this quiet country lane. In 300m you pass a corner of the grounds of Chiddingstone Castle on your right (with a locked gate), then in a further 400m come to its main driveway. The route through the grounds in §7b is not a public right of way but you could take this if they are open (there is an Honesty Box for donations).
Continue along the lane to a crossroads and turn right. In 250m this road bends right and crosses a stone bridge, with a view of the castle beyond the lake. In 150m there is a pedestrian entrance to the castle on the right (the exit for the alternative route) and the road turns sharply left.
Turn sharp right off the lane to go up the castle's driveway, which curves gently round to its main entrance. To go directly to its Tea Room without visiting the house and its collections, continue past the entrance and go all the way round the back of the house to find the gift shop and tearoom in the far corner.
Afterwards, return to the front of the house and turn right. Continue across an arm of the lake on a footbridge and follow the path as it curves round and leaves the grounds through a gate in the castle walls, emerging on a bend in the road.
At the bend in the road the Castle Inn is on the right, the first building on Chiddingstone's picturesque village street7. Opposite St Mary's church8 the Tulip Tree tearoom is up a short driveway behind the Chiddingstone Stores.
If you are doing an Alternative Walk, go to §9 (to avoid retracing 1 km of your outward route from Penshurst station).
Continue along the village street. After passing the primary school, follow the directions below if you want to see the Chiding Stone.
Turn right onto a signposted path to the Chiding Stone9, where there is an information panel. Return the same way.
After the path to the Chiding Stone ignore public footpaths off to both sides and stay on the lane, climbing gently with good views of the Greensand Hills on your left. In 400m fork right in front of Triangle Oast (with Larkin's Farm10 on your left). Almost immediately turn left at a footpath signpost onto a path heading E across the brow of Hampkins Hill, with fine views on both sides.
At the far end of the field, turn left along its edge. In the corner veer right down a narrow path through a belt of trees and turn left onto a tarmac driveway. At the bottom rejoin the minor road you left at Triangle Oast, crossing over the River Eden on the attractive Vexour Bridge.
On the other side bear right off the road, going over a stile to the left of a metal fieldgate. Take the right-hand of two faint grassy paths to head NE across a large field, going past a loop of the river. The path heads towards a metal fieldgate where there is a wide bridge over a stream in the trees, but the correct (and potentially less muddy) route is to aim about 30m to its left where there is a footbridge over the stream.
Either way, head roughly N across the next field (turning half-left after crossing the footbridge, or straight ahead from the wider bridge) towards a gap in the trees on the far side, 125m away. Go over a stile into the right-hand field and continue in much the same direction for 400m along the left-hand edge of two fields, at first with a wire fence and then a line of trees on your left. At the end of the second field go over a stile into a large field and turn right to head E along its edge.
In the field corner go over a stile to the right of a metal fieldgate and continue up to another. Go through this gate and turn left along the edge of another large field. About 100m before the railway embankment which you can see up ahead, turn right by a footpath marker post to go straight across this field, heading E again. On the far side go through a metal fieldgate to continue along a grassy track on the left-hand edge of a field.
At the end go over a stile beside a wooden fieldgate and through a small parking area to reach Penshurst station. Platform 1 on this side is for trains to Redhill. For some refreshment before the journey back, or to take a train to Tonbridge, cross the footbridge to Platform 2. The Little Brown Jug is on the other side of the B2027, directly opposite the station.
Turn left off the lane outside the village onto a footpath heading north to a footbridge over the River Eden. Fork right off the main path onto a footpath leading to a house (Chested). Go out along its driveway and turn left briefly onto a minor road, then turn right onto a footpath heading east across fields to Beckett's Farm. Go across its driveway onto another footpath heading east and then north-east across fields to the station.
50m after the path to the Chiding Stone, turn left off the lane onto a signposted footpath, the driveway to a house “Coachmans”. At the end of the drive bear right as indicated in front of a wooden fieldgate onto a fenced path skirting around the house. On the far side follow the path gently downhill alongside a wood. Keep ahead where another footpath joins from the left and follow the path up to and across the River Eden on a new wooden footbridge.
After crossing the river go through a metal gate on the right into the corner of a field. Turn left and go along the field edge parallel to the path you were on, veering slightly away from it at the end to go through a gap into the bottom of a sloping field. Follow a faint grassy path up to its top right-hand corner and go through a gap into another field. Make your way over to its right-hand side and continue along the field edge, heading N.
In the next corner go through an old metal gate (or over a stile) and bear right across a field which slopes downhill, aiming just to the right of a house which comes into view. Go over a stile at the bottom and turn right to follow the house's driveway out to a minor road. Turn left onto the road, then in 60m turn right onto a signposted footpath, heading E along a strip of grassland.
At the end of the hedge on your left bear left towards the field corner. Go through a metal fieldgate in this potentially muddy area and veer right up a slope to continue along the right-hand edge of a field, heading E again towards the buildings of Beckett's Farm. Go over a stile in the field corner and veer left briefly onto the driveway leading away from the farm, then immediately go over a stile on the right into a large field.
Follow the Eden Valley Walk south-east via Wat Stock, eventually crossing the River Eden into Penshurst. Turn right on the B2176 to enter the village.
At the junction turn right, now on the Eden Valley Walk11 (EVW). After passing some more houses keep left where the lane opens out, ignoring another footpath ahead past some stables. Head E along a farm track and take a surfaced path to the left of some new buildings. Continue on a grassy path and fork right where this splits, onto a clear straight path heading SE.
In 300m, soon after a narrow path joins from the left, go through a kissing gate into a wood. Continue along the attractive woodland path for 400m, climbing gently at first. At the far end go over a stile to emerge on a minor road. Cross the road and continue on a bridleway just off to the right, going through a metal fieldgate to head diagonally across a field on a grassy path. On the far side leave it through another gate and turn left onto a lane.
At a fieldgate on the left after 100m there is a view of the painted barn at Wat Stock (the trompe-l'oeil seen earlier on the Alternative Walk).
The lane bends to the left round a large pond. In a further 50m keep ahead on an unsurfaced track past some derelict farm buildings, briefly reversing the outward route of the Alternative Walk.
You now follow this potentially muddy track (the old coach road) all the way down to Penshurst, with occasional views over the Eden Valley on your left and a huge array of polytunnels behind the line of trees on your right. After a long descent the driveway from Salmans Farms joins from the right and you cross the River Eden. In a further 500m you reach the B2176, with Penshurst Place visible in the grounds ahead. Turn right onto the road to enter the village.
In 150m you come to the Fir Tree House tearoom on your right, the first of several possible tea places. The walk route continues round to the left at the road junction in the centre of the village, where the Leicester Arms Hotel is on your right (the Porcupine Pantry is 600m further on, in the next section).
If you are doing an Alternative Walk, go to §14.
Head east out of the village and go along the access road to Penshurst Place, signposted as the Eden Valley Walk (EVW). Continue on a private road towards Well Place Farm, which you skirt by taking a footpath up a field to its left. Head north-east along a track to Killick's Bank. Turn right onto a footpath going down to the River Medway and continue alongside it to a road. Cross the river on Ensfield Bridge.
The remainder of the walk is essentially the same as Walk 1–19.
Head E out of the village on the B2176, briefly reversing the outward route of the Main Walk and passing the picturesque houses in Leicester Square4. Where the road turns right keep ahead through a stone and brick archway, now on Cycle Route 12 as well as the Eden Valley Walk.
As you go along the driveway to Penshurst Place you get a glimpse of its formal gardens through a locked gate in the high brick wall on your left. At the end of the wall the Porcupine Pantry is 200m off to the left, behind the large car park; if you are not visiting the tearoom or the manor house simply keep ahead on the tarmac drive (shown as a private road to Well Place, but still a public footpath).
In 400m, shortly before the road starts to ascend, turn left through a squeeze gate into a field, leaving CR 12. Go along the field edge parallel to the road, then through another squeeze gate. Follow a broad grassy path diagonally up the next field, heading NE (with a fine view of Penshurst Place over your left shoulder). At the top of the field there is a fieldgate leading out to a track.
Go through a squeeze gate to the right of this fieldgate and head NE along a track. In 80m keep ahead where it joins a concrete lane, rejoining CR 12 for the next 600m to Killick's Bank. After passing an isolated house there veer right across a lane junction and go through a squeeze gate (or over a nearby stile) into a field.
Follow a faint grassy path downhill, heading E. At the bottom of the field cross a wooden bridge over a backwater and go across the grass to the River Medway. Turn left and walk along the riverbank to Ensfield Bridge. Turn right onto the road to cross over the river, rejoining CR 12 again.
Continue on the EVW for a further 700m, then cross back over the river and take the footpath heading north towards Leigh. Go around the village green and turn left onto the B2027. At the Fleur-de-lis pub turn left into Lower Green for the station.
On the other side of the bridge turn left and follow the cycle route for about 400m. Where it bends left down a slope the suggested route is to go through a wooden squeeze gate in the fence and continue in much the same direction for 250m, near the left-hand edge of a field.
If instead you choose to remain on the cycle route, turn left at a path crossing after a further 300m and resume the directions at [•] below.
On the suggested route you eventually go over a stile and a ditch into another large field. Bear left across the field corner towards a nearby gate and go through it onto a short path through some trees to the cycle route you left earlier. Keep ahead at this path crossing (leaving the EVW, which continues towards Tonbridge on the long straight path off to the right).
[•] Cross a bridge over a backwater and fork left on the main path, which soon comes to a substantial bridge over the main river. Cross this and go straight across a large field, heading NW. On the far side go through a wide gap in the hedge and continue along the left-hand side of the next field, aiming for a broad track which you can see going over an embankment up ahead. Leave the field through a kissing gate to join this track, which takes you through a tunnel under the railway.
Stay on the track for 100m, up a slope. Where it swings round to the left, go out onto a residential street (Green View Avenue) to continue in the same direction. This leads to Leigh's village green, with St Mary's church visible on a knoll on the far side. Turn left and make your way around two sides of the green to the B2027.
Turn left and go along this main road for 250m, passing some attractive almshouses, the Village Stores, a restored water pump and several other interesting buildings. At the Fleur-de-lis pub turn left down a side road (Lower Green), in 225m coming to a bridge under the railway.
There are two tarmac paths (one on each side) leading up to Leigh station, but note that there is no footbridge linking the two platforms. Platform 1 is for trains to Redhill and Platform 2 for trains to Tonbridge. Check the timetable displayed here before deciding which platform to head for.
Turn left off the lane onto a footpath heading towards Wat Stock, but in the hollow turn left to join the Eden Valley Walk further along. Follow this bridleway eastwards, eventually crossing the River Eden into Penshurst. Turn right onto the B2176 to enter the village.
Turn left along the bottom of the field. In the corner go through a belt of trees via a couple of stiles and turn half-right to go gently uphill across a field. In the middle of the far side two more stiles and a footbridge take you into another field where you follow a faint grassy path up the side of the slope, past a projecting group of trees to the top edge of the field. Go over a stile in the trees and turn left onto a broad track, joining the Eden Valley Walk11 (EVW).
In 150m you pass the Fir Tree House tearoom on your right (which is usually closed at lunchtime). Keep left at the road junction in the centre of the village to come to the suggested lunch stop on your right, the Leicester Arms Hotel.
Head east out of the village and go along the access road to Penshurst Place, signposted as the Eden Valley Walk (EVW). Continue on a private road towards Well Place Farm, which you skirt by taking a footpath up a field to its left. Leave the EVW and head north for almost 1 km, then turn right and go along a tree-lined avenue and across a field to a minor road. Turn left and follow the road down to the station.
Do not go out onto the track but instead bear left in front of the fieldgate, leaving the main branch of the EVW. Follow a grassy path along the right-hand edge of several large fields (interrupted by a short stretch through a wood) for almost 1 km. At the end of the last field bear right onto a broad grassy path heading NE.
The final 1½ km is the same as the start of Walk 1–15 (in reverse).
Continue in this direction for just over 1 km: initially along a tree-lined avenue, then across an open field and finally down a rough track to a road. Turn left and go down the road, taking care as there is no pavement. In 250m you come to a bridge under the railway.
If you want some refreshment before the journey back the Fleur-de-lis pub is 225m further along the road, where it meets the B2027.
The source of the River Eden is in the Titsey estate, 2 km north-east of Oxted on the slopes of the North Downs. It flows into the River Medway near Penshurst.
The buildings at Larkin's Farm include Larkin's Brewery, which was established in 1986 and moved to the family's farm a few years later. Chiddingstone Cider is also produced here.


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President Trump just nominated Judge Neil Gorsuch of the Tenth Circuit to fill Justice Scalia's vacant seat on the Supreme Court.
Check out Marc Thiessen's piece in WaPo, arguing that Senate Republicans should use the nuclear option--destroy the filibuster--for President Trump's Supreme Court nominee.
Here's the NYT report on this unprecedented move.
The White House released a statement that said Yates "betrayed the Department of Justice by refusing to enforce a legal order designed to protect the citizens of the United States. . . . Ms. Yates is an Obama Administration appointee who is weak on borders and very weak on illegal immigration."
The White House has maintained that the EO was cleared ("as to form and legality") by the Office of Legal Counsel at DOJ. So far, OLC hasn't posted anything.
Muslim Advocacy Group CAIR Files Complaint Challenging Presidential "Muslim Ban"
In a complaint filed today in Sarsour v. Trump, attorneys with CAIR, the Council on American-Islamic Relations, have challenged the constitutionality of President Trump's late Friday EO, Protecting the Nation From Foreign Terrorist Entry Into the United States, now available on the whitehouse.gov site here. Recall that the EO was fairly quickly subject to a partial stay by a federal judge and encountered "judicial resistance" as Jonathan Hafetz over at Balkinization observes. There are now several cases pending; a very helpful updated post with litigation documents from Qunita Juresic is over at Lawfare here. In addition to litigation, the EO has sparked nationwide protests, as well as criticism from other Republicans and 16 State Attorney Generals.
fulfillment of President Trump’s longstanding promise and boasted intent to enact a federal policy that overtly discriminates against Muslims and officially broadcasts a message that the federal government disfavors the religion of Islam, preferring all other religions instead.
The complaint has three constitutional claims, as well as a a fourth count alleging violations of the Administrative Procedure Act.
Front and center are the First Amendment Religion Clauses claims. The first count is labeled an Establishment Clause violation, but also argues that Islam is being singled out for disfavored treatment as "uniquely threatening and dangerous." A discussion of the Establishment Clause arguments from David Cole, Legal Director of the ACLU, is over at Just Security here. In the second count, the claim is a violation of the Free Exercise Clause as it relates to the John and Jane Doe plaintiffs who are residents but non-citizens originating from the Muslim-majority countries at issue in the EO. Interestingly, there is not a statutory Religious Freedom Restoration Act (RFRA) claim; there would seem to a good argument that RFRA's "persons" includes noncitizens as well as corporations as the Court held in Hobby Lobby.[Update: In Ruiz-Diaz v. United States, the Ninth Circuit applied RFRA to non-citizen in the United States on five-year religious worker visas, ultimately concluding RFRA was not violated].
In addition to the First Amendment counts, the complaint includes a Fifth Amendment Equal Protection claim on behalf of the John and Jane Doe plaintiffs, contending that by preventing the non-citizen lawful resident Muslims originating from these specific Muslim-majority nations "from engaging in international travel and returning home in the United States" and from "applying for immigration benefits" under the federal statute and international human rights law including political asylum, the EO is unconstitutional. We've previously discussed the Equal Protection issues involved in the EO here.
The EO is certainly going to attract additional judicial challenges, as well as legislative ones.
President Trump issued an Executive Order today requiring agencies to dump two regs for every new reg they issue.
The two-for-one standard seems a little, er, blunt. But, if implemented, it will undoubtedly reduce total federal regulations, helping to fulfill a campaign promise.
In his most recent EO, President Trump wrote that "it is important that for every one new regulation issued, at least two prior regulations be identified for elimination, and that the cost of planned regulations be prudently managed and controlled through a budgeting process." The EO requires that "any new incremental costs associated with new regulations shall, to the extent permitted by law, be offset by the elimination of existing costs associated with at least two prior regulations."
The EO also requires that "the total incremental cost of all new regulations, including repealed regulations, to be finalized this year shall be no greater than zero, unless otherwise required by law or consistent with advice provided in writing by the Director of the Office of Management and Budget."
Politico reports that Senator Jeff Merkley (D-Or.) plans to filibuster any Trump Supreme Court nominee who is not Merrick Garland.
Said Merkley: "This is a stolen seat. This is the first time a Senate majority has stolen a seat. We will use every lever in our power to stop this."
Is turnabout fair play for the Republicans' refusal to give Garland a hearing? Or is a Democratic filibuster (because Republicans refused to give Garland a hearing) different than a Republican refusal to give a hearing at all?
Check out Adam Liptak's piece on the likely impact (and not) of President Trump's Supreme Court pick on abortion, unions, and affirmative action, among others.
President Trump said he'll announce his pick on Tuesday at 8 p.m.
President Trump issued an EO this weekend reorganizing the National Security Council and for the first time adding a member of the President's political team to the Principals Committee. The changes have been all over the news (even if lost behind President Trump's EO on immigration); here's one of the better reports, from Kelly Magsamen at The Atlantic.
For the first time in history, a president's chief political strategist will be invited to attend any meeting of the National Security Council and will be a regular member of the highly-influential Principals Committee (PC). Now, politics finding its way into a president's national-security decision-making is nothing new. But it rarely (if ever) gets a seat in the White House Situation Room--for good reason. To place a purely political operative on the NSC--alongside actual Cabinet members with national-security responsibilities or expertise--is an unprecedented move with profound implications for how national-security policies are developed and executed. To be clear, that concern is not confined to Steve Bannon. This would be the case no matter who it was.
Under the EO, the Director of National Intelligence and the chairman of the Joint Chiefs of Staff are off the Principals Committee. Instead, they "shall attend where issues pertaining to their responsibilities and expertise are to be discussed."
Federal Judge Grants Stay of Presidential "Muslim Ban"
President Trump issued an Executive Order (EO) late Friday afternoon entitled "Protecting the Nation From Foreign Terrorist Entry Into the United States.” (The text is not yet on Whitehouse.gov; it is reproduced in the New York Times here].
After the Executive Order, the ACLU filed a complaint in Darweesh v. Trump; the Judge has granted a stay in a 3 page Order stating that the plaintiffs have a likelihood of success on the Due Process and Equal Protection issues. Our analysis of the Equal Protection issues is here.
The President's EO sparked protests, including at JFK airport, where the plaintiffs had landed.
Is it constitutional, specifically on the basis of equal protection?
Distinctions between citizens solely because of their ancestry are, by their very, nature odious to a free people whose institutions are founded upon the doctrine of equality. For that reason, legislative classification or discrimination based on race alone has often been held to be a denial of equal protection.
The support for this principle in Hirabayashi was Yick Wo v. Hopkins (1886), which involved state action that affected Chinese nationals in California, excluded from citizenship by federal law. In Yick Wo, the Court was clear that "any person" in the text of the Fourteenth Amendment was "universal in their application to all persons" without regard to any differences of nationality.
But Yick Wo does not mean that equal protection or other constitutional rights apply globally. The question of what "subject to the jurisdiction" of the state or federal government as applied to noncitizens means is a vexing one. For example, in Boumediene v. Bush (2008) involving the habeas corpus rights of noncitizens detained in Guantanamo Bay, Cuba, the Court rehearsed the "extraterritorality cases" and ultimately concluded that the Suspension Clause (generally prohibiting the suspension of habeas corpus), in Article One, Section 9, clause 2, applied to noncitizens detained at Guantanamo Bay. Unlike the "enemy combatants" in Boumediene, however, the "noncitizens" subject to the President's Executive Order (EO) often have substantial links to the United States. Although the language of the EO lacks clarity on the question, a government spokesperson today has stated that the EO applies to permanent legal residents, often known as "green card" holders. Thus, all "aliens" are not the same. Instead, there is a sliding scale of rights, greatest in a naturalized citizen and least in a non-resident non-citizen without any immigration status, but in between there are numerous other categories including those who are permanent legal residents, including those who have "rights" that are "more extensive and secure" because the person has made "preliminary declaration of intention to become a citizen," Johnson v. Eisentrager (1950). Moreover, the question of territoriality is also cloudy. As the EO went into effect, some people were landing in the United States, and thus "in" the country, and for "permanent residents" who may have been traveling briefly abroad and have no other home, their domicile may be in the United States.
Assuming the Equal Protection Clause applies, the EO on its face makes classifications based on national origin and religious identity. The national origin classification is clear and by reference, the EO applies to 7 nations: Iraq, Syria, Iran, Libya, Somalia, Sudan and Yemen. These nations are Muslim-majority nations, and a provision of the EO regarding refugee status directs priority to "refugee claims made by individuals on the basis of religious-based persecution, provided that the religion of the individual is a minority religion in the individual’s country of nationality. "
Generally, classifications based on national origin, as well as religious identity, would receive strict scrutiny, as derived from the famous footnote four of United States v. Carolene Products Company, although religious identities are more rarely litigated under Equal Protection (one example is here), given the robust First Amendment protections.
When the federal power over immigration is involved, it may be argued that the otherwise applicable level of scrutiny is less appropriate, or even if it does apply, its application includes greater deference to the national government. But in cases such as Nyguen v. INS (2001), involving a Fifth Amendment equal protection challenge to a federal gender classification with differing rules for unwed mothers and for unwed fathers in their ability to confer derivative citizenship, the Court carefully considered the usual level of scrutiny. And in a similar recently-argued case, Lynch v. Morales-Santana, there was little indication that simplistic deference to the national government was appropriate; the Second Circuit had held that the gender differential violated equal protection.
If strict scrutiny applied to this national origin and religious classifications, it would require a compelling government interest with the means chosen being narrowly tailored. National security is oft-considered a compelling interest, and the EO repeatedly cites "September 11." Yet, even accepting that this would be compelling, there are serious problems proving the narrowly tailored prong. If one accepts the "September 11" rationale, the link to an event more than 15 years ago is tenuous. Additionally, even if there was such a link, there is no overlap in the nationality of those involved in the September 11 attacks and those targeted in the EO.
Not only is there a mismatch between the nationalities of September 11 attackers and the nationalities of those targeted in the EO, there is the odd coincidence that President Trump has no business connections in the nations targeted while having such business interests in the nations excluded. This might lead to an argument that stated national security interest is not the President's genuine interest, similar to the Court's rejection of the "racial purity" interest in Loving v. Virginia and its conclusion that the "real" interest was White Supremacy. There could be an argument that the President's "real" interest in the EO is one of personal profit, an interest that coincides with the recently filed Emoluments Clause challenge. Or there might be an argument that the President's "real" interest relates to Russia, an interest that would coincide with ongoing investigations into the Trump-Putin connections. Finally, there is an argument that the targeting of Muslims is based on animus and the bare desire to harm a politically unpopular group, an interest that the Court has repeatedly found to not even satisfy the lowest level of scrutiny requiring a mere legitimate interest, in cases such as Moreno v. USDA (1973).
There are certainly other issues in addition to equal protection; the just-filed ACLU complaint's first claims rest on procedural due process, although there is also an equal protection claim. [Update here].
Nevertheless, equality arguments will loom large in the "Muslim ban" challenges.
Check out Daniel Hemel, Jonathan Masur, and Eric Posner's (all U. Chicago) piece in the NYT, arguing that Justice Scalia's opinion in Michigan v. EPA could block President Trump from building his wall.
Here's why. Scalia wrote in Michigan that the EPA's authority to issue "appropriate and necessary" regulations meant that it had to do a cost-benefit analysis on proposed rules. President Trump apparently intends to rely on the Secure Fence Act of 2006 as authority to build his wall. But that Act authorizes Homeland Security to take actions to secure the border only if they're "necessary and appropriate."
Hemel, Masur, and Posner argue that Scalia's opinion that "appropriate" includes a cost-benefit analysis should apply to President Trump's wall, too. And if so, they say it'll be very hard, even impossible, to justify it.
Check out Prof. Eric Segall's (Georgia State) piece in the LA Times, arguing that CREW has standing to sue President Trump for an Emoluments Clause violation. We posted on the case here.
Segall says that CREW's harm is greater than the plaintiffs' harms in other cases, where the Court granted standing. Citing Fisher and Massachusetts v. EPA, Segall writes that "[t]here are many examples of plaintiffs in high-profile and important cases having their cases heard despite injuries just as or even more abstract and tenuous than the ones put forward by CREW."
Former Congressperson and presidential candidate Newt Gingrich has reportedly stated that the famous celebrity Madonna "ought to be arrested" for her speech at the Women's March in Washington D.C. including a reference to thinking about violence.
Madonna's statements are a far cry from satisfying the classic formulation in Brandenburg v. Ohio (1969) requiring that to be constitutional under the First Amendment, the criminalizing advocacy of violence can only occur if the advocacy is directed to inciting or producing imminent lawless action, and also is likely to incite or produce such lawless action. The less well known case of Hess v. Indiana (1973), is also pertinent because the Court found that the statements during a protest about 'taking the street' was not imminent and was directed at some indefinite future time.
Here, Madonna stated that she "had thought" about the violent act of "blowing up the White House," and then continued, "but I know, that this won't change anything." It's even difficult to meet the threshold of "advocacy" in this case, given that she isn't advocating or suggesting any action. Moreover, even if there were some advocacy, it wasn't directed at inciting others to act. And even if there was incitement, there was no likelihood that the crowd would act lawlessly.
The crowd did respond, however, when Madonna asked them to sing (and dance) along to one of Madonna's signature songs, "Express Yourself."
For ConLawProfs thinking of class illustration, this might be useful. However, although Bradenburg-type questions can be popular (if also somewhat problematical) on exams, this seems far too easy.
Here's CREW's complaint against President Trump for violations of the Emoluments Clause. (We wrote on this yesterday, too.) CREW filed this morning in the Southern District of New York.
In short, CREW argues that the Trump corporation's business with other countries means that it takes money from them, and because President Trump hasn't divested, "[w]hen Trump the president sits down to negotiate trade deals with these countries, the American people will have no way of knowing whether he will also be thinking about the profits of Trump the businessman."
Defendant's violations of the Foreign Emoluments Clause have required CREW to divert and expend its valuable resources specifically to counteract those violations, impairing CREW's ability to accomplish its mission. CREW has had to counteract Defendant's violations because they are particularly harmful to CREW due to its status as a nonpartisan, nonprofit organization with the resources, board of directors, in-house legal team, and mission that it has.
There is a direct conflict between Defendant's violations of the Foreign Emoluments Clause and CREW's mission of protecting the rights of citizens to be informed about the activities of government officials, ensuring the integrity of government officials, protecting our political system against corruption, and reducing the influence of money in politics. Defendant's violations create a tremendous risk of foreign governments using money to improperly influence the President, create questions about the President's motives in making foreign-policy decisions, and will likely lead to numerous conflicts and violations that the public will have insufficient information to judge.
The suit, which will not seek any monetary damages, will ask a federal court in New York to order Mr. Trump to stop taking payments from foreign government entities. Such payments, it says, include those from patrons at Trump hotels and golf courses, as well as loans for his office buildings from certain banks controlled by foreign governments, and leases with tenants like the Abu Dhabi tourism office, a government enterprise.
The plaintiff in the case is Citizens for Responsibility and Ethics in Washington, CREW.
We've posted on the Emoluments Clause and President Trump here and here (with links to others). Prof. Andy Grewel's (Iowa) paper, recently posted, referenced in the piece, and arguing that payment to a Trump hotel wouldn't violate the Emoluments Clause, is here.

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