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In 2015, the Texas Court of Criminal Appeals held that petitioner, Bobby James Moore, did not have intellectual disability and consequently was eligible for the death penalty. Ex parte Moore, 470 S. W. 3d 481, 527–528 (Ex parte Moore I). We previously considered the lawfulness of that determination, vacated the appeals court’s decision, and remanded the case for further consideration of the issue. Moore v. Texas, 581 U. S. ___, ___ (2017) (slip op., at 18). The appeals court subsequently reconsidered the matter but reached the same conclusion. Ex parte Moore, 548 S. W. 3d 552, 573 (Tex. Crim. App. 2018) (Ex parte Moore II). We again review its decision, and we reverse its determination.
“Moore had significant mental and social difficulties beginning at an early age. At 13, Moore lacked basic understanding of the days of the week, the months of the year, and the seasons; he could scarcely tell time or comprehend the standards of measure or the basic principle that subtraction is the reverse of addition. At school, because of his limited ability to read and write, Moore could not keep up with lessons. Often, he was separated from the rest of the class and told to draw pictures. Moore’s father, teachers, and peers called him ‘stupid’ for his slow reading and speech. After failing every subject in the ninth grade, Moore dropped out of high school. Cast out of his home, he survived on the streets, eating from trash cans, even after two bouts of food poisoning.” Ibid. (citations omitted).
On the basis of this and other evidence, the trial court found that Moore had intellectual disability and thus was ineligible for the death penalty under Atkins v. Virginia, 536 U. S. 304 (2002). App. to Pet. for Cert. 310a–311a. The Texas Court of Criminal Appeals reversed that determination, Ex parte Moore I, 470 S. W. 3d 481, and we reviewed its decision, Moore, 581 U. S. ___.
At the outset of our opinion, we recognized as valid the three underlying legal criteria that both the trial court and appeals court had applied. Id., at ___–___ (slip op., at 3–4) (citing American Association on Intellectual and Developmental Disabilities, Intellectual Disability: Definition, Classification, and Systems of Supports (11th ed. 2010) (AAIDD–11); American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders (5th ed. 2013) (DSM–5)). To make a finding of intellectual disability, a court must see: (1) deficits in intellectual functioning—primarily a test-related criterion, see DSM–5, at 37; (2) adaptive deficits, “assessed using both clinical evaluation and individualized . . . measures,” ibid.; and (3) the onset of these deficits while the defendant was still a minor, id., at 38. With respect to the first criterion, we wrote that Moore’s intellectual testing indicated his was a borderline case, but that he had demonstrated sufficient intellectual-functioning deficits to require consideration of the second criterion—adaptive functioning. Moore, 581 U. S., at ___–___ (slip op., at 10–12). With respect to the third criterion, we found general agreement that any onset took place when Moore was a minor. Id., at ___, n. 3 (slip op., at 4, n. 3).
But there was significant disagreement between the state courts about whether Moore had the adaptive deficits needed for intellectual disability. “In determining the significance of adaptive deficits, clinicians look to whether an individual’s adaptive performance falls two or more standard deviations below the mean in any of the three adaptive skill sets (conceptual, social, and practical).” Id., at ___ (slip op., at 4) (citing AAIDD–11, at 43). Based on the evidence before it, the trial court found that “Moore’s performance fell roughly two standard deviations below the mean in all three skill categories.” 581 U. S., at ___ (slip op., at 4); see App. to Pet. for Cert. 309a. Reversing that decision, the appeals court held that Moore had “not proven by a preponderance of the evidence” that he possessed the requisite adaptive deficits, and thus was eligible for the death penalty. Ex parte Moore I, 470 S. W. 3d, at 520. We disagreed with the appeals court’s adaptive-functioning analysis, however, and identified at least five errors.
First, the Texas Court of Criminal Appeals “overemphasized Moore’s perceived adaptive strengths.” Moore, 581 U. S., at ___ (slip op., at 12). “But the medical community,” we said, “focuses the adaptive-functioning inquiry on adaptive deficits.” Ibid.
Second, the appeals court “stressed Moore’s improved behavior in prison.” Id., at ___ (slip op., at 13). But “[c]linicians . . . caution against reliance on adaptive strengths developed ‘in a controlled setting,’ as a prison surely is.” Ibid. (quoting DSM–5, at 38).
Third, the appeals court “concluded that Moore’s record of academic failure, . . . childhood abuse[,] and suffering . . . detracted from a determination that his intellectual and adaptive deficits were related.” 581 U. S., at ___ (slip op., at 13). But “in the medical community,” those “traumatic experiences” are considered “ ‘risk factors’ for intellectual disability.” Ibid. (quoting AAIDD–11, at 59–60).
Fourth, the Texas Court of Criminal Appeals required “Moore to show that his adaptive deficits were not related to ‘a personality disorder.’ ” 581 U. S., at ___ (slip op., at 14) (quoting Ex parte Moore I, 470 S. W. 3d, at 488). But clinicians recognize that the “existence of a personality disorder or mental-health issue . . . is ‘not evidence that a person does not also have intellectual disability.’ ” 581 U. S., at ___ (slip op., at 14) (quoting Brief for American Psychological Association et al. as Amici Curiae in Moore v. Texas, O. T. 2016, No. 15–797, p. 19).
Fifth, the appeals court directed state courts, when examining adaptive deficits, to rely upon certain factors set forth in a Texas case called Ex parte Briseno, 135 S. W. 3d 1 (Tex. Crim. App. 2004). Ex parte Moore I, 470 S. W. 3d, at 486, 489. The Briseno factors were: whether “those who knew the person best during the developmental stage” thought of him as “mentally retarded”; whether he could “formulat[e] plans” and “car[ry] them through”; whether his conduct showed “leadership”; whether he showed a “rational and appropriate” “response to external stimuli”; whether he could answer questions “coherently” and “rationally”; whether he could “hide facts or lie effectively”; and whether the commission of his offense required “forethought, planning, and complex execution of purpose.” 135 S. W. 3d, at 8–9.
We criticized the use of these factors both because they had no grounding in prevailing medical practice, and because they invited “lay perceptions of intellectual dis-ability” and “lay stereotypes” to guide assessment of intellectual disability. Moore, 581 U. S., at ___ (slip op., at 15). Emphasizing the Briseno factors over clinical factors, we said, “ ‘creat[es] an unacceptable risk that persons with intellectual disability will be executed.’ ” 581 U. S., at ___ (slip op., at 14) (quoting Hall v. Florida, 572 U. S. 701, 704 (2014)). While our decisions in “Atkins and Hall left to the States ‘the task of developing appropriate ways to enforce’ the restriction on executing the intellectually disabled,” 581 U. S., at ___ (slip op., at 9) (quoting Hall, 572 U. S., at 719), a court’s intellectual disability determination “must be ‘informed by the medical community’s diagnostic framework,’ ” 581 U. S., at ___ (slip op., at 9) (quoting Hall, 572 U. S., at 721).
Three Members of this Court dissented from the major-ity’s treatment of Moore’s intellectual functioning and withaspects of its adaptive-functioning analysis, but all agreed about the impropriety of the Briseno factors. As The Chief Justice wrote in his dissenting opinion, the Briseno factors were “an unacceptable method of enforcing the guarantee of Atkins” and the Texas Court of Criminal Appeals “therefore erred in using them to analyze adaptive deficits.” Moore, 581 U. S., at ___ (opinion of Roberts, C. J.) (slip op., at 1).
For the reasons we have described, the Court set aside the judgment of the appeals court and remanded the case “for further proceedings not inconsistent with this opinion.” Id., at ___ (slip op., at 18).
On remand the Texas Court of Criminal Appeals reconsidered the appeal and reached the same basic conclusion, namely, that Moore had not demonstrated intellectual disability. Ex parte Moore II, 548 S. W. 3d, at 555. The court again noted the three basic criteria: intellectual-functioning deficits, adaptive deficits, and early onset. Id., at 560–562. But this time it focused almost exclusively on the second criterion, adaptive deficits. The court said that, in doing so, it would “abandon reliance on the Briseno evidentiary factors.” Id., at 560. It would instead use “ ‘current medical diagnostic standards’ ” set forth in the American Psychiatric Association’s DSM–5. Id., at 559–560. In applying those standards to the trial court record, it found the State’s expert witness, Dr. Kristi Compton, “ ‘far more credible and reliable’ ” than the other experts considered by the trial court. Id., at 562. (As in our last opinion, we neither second nor second-guess that judgment.) And, as we have said, it reached the same conclusion it had before.
Moore has now filed a petition for certiorari in which he argues that the trial court record demonstrates his intellectual disability. He asks us to reverse the appeals court’s contrary holding. Pet. for Cert. 2. The prosecutor, the district attorney of Harris County, “agrees with the petitioner that he is intellectually disabled and cannot be executed.” Brief in Opposition 9. The American Psychological Association (APA), American Bar Association (ABA), and various individuals have also filed amicus curiae briefs supporting the position of Moore and the prosecutor. Brief for APA et al. as Amici Curiae; Brief for ABA as Amicus Curiae; Brief for Donald B. Ayer et al. as Amici Curiae. The Attorney General of Texas, however, has filed a motion for leave to intervene, and asks us to deny Moore’s petition. Motion for Leave to Intervene as a Respondent.
After reviewing the trial court record and the court of appeals’ opinion, we agree with Moore that the appeals court’s determination is inconsistent with our opinion in Moore. We have found in its opinion too many instances in which, with small variations, it repeats the analysis we previously found wanting, and these same parts are critical to its ultimate conclusion.
For one thing, the court of appeals again relied less upon the adaptive deficits to which the trial court had referred than upon Moore’s apparent adaptive strengths. See Moore, 581 U. S., at ___ (slip op., at 12) (criticizing the appeals court’s “overemphas[is]” upon Moore’s “perceived adaptive strengths”); supra, at 3. The appeals court’s discussion of Moore’s “[c]ommunication [s]kills” does not discuss the evidence relied upon by the trial court. Ex parte Moore II, 548 S. W. 3d, at 563–565. That evidence includes the young Moore’s inability to understand and answer family members, even a failure on occasion to respond to his own name. App. to Pet. for Cert. 289a–290a. Its review of Moore’s “[r]eading and [w]riting” refers to deficits only in observing that “in prison, [Moore] progressed from being illiterate to being able to write at a seventh-grade level.” Ex parte Moore II, 548 S. W. 3d, at 565. But the trial court heard, among other things, evidence that in school Moore was made to draw pictures when other children were reading, and that by sixth grade Moore struggled to read at a second-grade level. App. to Pet. for Cert. 290a, 295a.
Instead, the appeals court emphasized Moore’s capacity to communicate, read, and write based in part on pro se papers Moore filed in court. Ex parte Moore II, 548 S. W. 3d, at 565–566. That evidence is relevant, but it lacks convincing strength without a determination about whether Moore wrote the papers on his own, a finding that the court of appeals declined to make. Rather, the court dismissed the possibility of outside help: Even if other inmates “composed” these papers, it said, Moore’s “ability to copy such documents by hand” was “within the realm of only a few intellectually disabled people.” Id., at 565. Similarly, the court of appeals stressed Moore’s “coherent” testimony in various proceedings, but acknowledged that Moore had “a lawyer to coach him” in all but one. Id., at 564, and n. 95. As for that pro se hearing, the court observed that Moore read letters into the record “without any apparent difficulty.” Ibid.
For another thing, the court of appeals relied heavily upon adaptive improvements made in prison. See Moore, 581 U. S., at ___ (slip op., at 13) (“caution[ing] against reliance on adaptive strengths developed” in “prison”); supra, at 3. It concluded that Moore has command of elementary math, but its examples concern trips to the prison commissary, commissary purchases, and the like. Ex parte Moore II, 548 S. W. 3d, at 566–569. It determined that Moore had shown leadership ability in prison by refusing, on occasion, “to mop up some spilled oat-meal,” shave, get a haircut, or sit down. Id., at 570–571, and n. 149. And as we have said, it stressed correspondence written in prison. Id., at 565. The length and detail of the court’s discussion on these points is difficult to square with our caution against relying on prison-based development.
Further, the court of appeals concluded that Moore failed to show that the “cause of [his] deficient social behavior was related to any deficits in general mental abilities” rather than “emotional problems.” Id., at 570. But in our last review, we said that the court of appeals had “departed from clinical practice” when it required Moore to prove that his “problems in kindergarten” stemmed from his intellectual disability, rather than “ ‘emotional problems.’ ” Moore, 581 U. S., at ___ (slip op., at 14) (quoting Ex parte Moore I, 470 S. W. 3d, at 488, 526)). And we pointed to an amicus brief in which the APA explained that a personality disorder or mental-health issue is “not evidence that a person does not also have intellectual disability.” 581 U. S., at ___ (slip op., at 14) (quoting Brief for APA et al. as Amici Curiae in No. 15–797, at 19).
Finally, despite the court of appeals’ statement that it would “abandon reliance on the Briseno evidentiary factors,” Ex parte Moore II, 548 S. W. 3d, at 560, it seems to have used many of those factors in reaching its conclusion. See supra, at 4 (detailing those factors). Thus, Briseno asked whether the “offense require[d] forethought, planning, and complex execution of purpose.” 135 S. W. 3d, at 9. The court of appeals wrote that Moore’s crime required “a level of planning and forethought.” Ex parte Moore II, 548 S. W. 3d, at 572, 603 (observing that Moore “w[ore] a wig, conceal[ed] the weapon, and fle[d]” after the crime).
Briseno asked whether the defendant could “respond coherently, rationally, and on point to oral and written questions.” 135 S. W. 3d, at 8. The court of appeals found that Moore “responded rationally and coherently to questions.” Ex parte Moore II, 548 S. W. 3d, at 564.
And Briseno asked whether the defendant’s “conduct show[s] leadership or . . . that he is led around by others.” 135 S. W. 3d, at 8. The court of appeals wrote that Moore’s “refus[al] to mop up some spilled oatmeal” (and other such behavior) showed that he “influences others and stands up to authority.” Ex parte Moore II, 548 S. W. 3d, at 570–571.
Of course, clinicians also ask questions to which the court of appeals’ statements might be relevant. See AAIDD–11, at 44 (noting that how a person “follows rules” and “obeys laws” can bear on assessment of her social skills). But the similarity of language and content between Briseno’s factors and the court of appeals’ statements suggests that Briseno continues to “pervasively infec[t] the [the appeals courts’] analysis.” Moore, 581 U. S., at ___ (slip op., at 18).
To be sure, the court of appeals opinion is not identical to the opinion we considered in Moore. There are sentences here and there suggesting other modes of analysis consistent with what we said. But there are also sentences here and there suggesting reliance upon what we earlier called “lay stereotypes of the intellectually disabled.” Id., at ___ (slip op., at 15). Compare Ex parte Moore II, 548 S. W. 3d, at 570–571 (finding evidence that Moore “had a girlfriend” and a job as tending to show he lacks intellectual disability), with AAIDD–11, at 151 (criticizing the “incorrect stereotypes” that persons with intellectual disability “never have friends, jobs, spouses, or children”), and Brief for APA et al. as Amici Curiae 8 (“[I]t is estimated that between nine and forty percent of persons with in-tellectual disability have some form of paid employment”).
We conclude that the appeals court’s opinion, when taken as a whole and when read in the light both of our prior opinion and the trial court record, rests upon analysis too much of which too closely resembles what we previously found improper. And extricating that analysis from the opinion leaves too little that might warrant reaching a different conclusion than did the trial court. We consequently agree with Moore and the prosecutor that, on the basis of the trial court record, Moore has shown he is a person with intellectual disability.
The petition for certiorari is granted. The Attorney General of Texas’ motion to intervene is denied; we have considered that filing as an amicus brief. The judgment of the Texas Court of Criminal Appeals is reversed, and the case is remanded for further proceedings not inconsistent with this opinion.
When this case was before us two years ago, I wrote in dissent that the majority’s articulation of how courts should enforce the requirements of Atkins v. Virginia, 536 U. S. 304 (2002), lacked clarity. Moore v. Texas, 581 U. S. ___, ___–___ (2017) (slip op., at 10–11). It still does. But putting aside the difficulties of applying Moore in other cases, it is easy to see that the Texas Court of Criminal Appeals misapplied it here. On remand, the court re-peated the same errors that this Court previously condemned—if not quite in haec verba, certainly in substance. The court repeated its improper reliance on the factors articulated in Ex parte Briseno, 135 S. W. 3d 1, 8 (Tex. Crim. App. 2004), and again emphasized Moore’s adaptive strengths rather than his deficits. That did not pass muster under this Court’s analysis last time. It still doesn’t. For those reasons, I join the Court’s opinion reversing the judgment below.
Justice Alito, with whom Justice Thomas and Justice Gorsuch join, dissenting.
Two years ago, this Court vacated a judgment of the Texas Court of Criminal Appeals holding that Bobby James Moore was not intellectually disabled and was therefore eligible for the death penalty. Moore v. Texas, 581 U. S. ___ (2017). While the Court divided on the appropriate disposition, both the majority and the dissent agreed that the Court of Criminal Appeals should have assessed Moore’s claim of intellectual disability under contemporary standards rather than applying the outdated evidentiary factors laid out in Ex parte Briseno, 135 S. W. 3d 1, 8 (Tex. Crim. App. 2004). Moore, 581 U. S., at ___ (slip op., at 2); id., at ___ (Roberts, C. J., dissenting) (slip op., at 1). On remand, the Court of Criminal Appeals adopted the leading contemporary clinical standards for assessing intellectual disability, applied those standards to the record, and once again determined that Moore is eligible for the death penalty. Ex parte Moore, 548 S. W. 3d 552, 555 (2018).
Today, the Court reverses that most recent decision, holding that the Court of Criminal Appeals failed to follow our decision in Moore. Such a failure would be understandable given the “lack of guidance [Moore] offers to States seeking to enforce the holding of Atkins.” Moore, 581 U. S., at ___ (Roberts, C. J., dissenting) (slip op., at 10). Indeed, each of the errors that the majority ascribes to the state court’s decision is traceable to Moore’s failure to provide a clear rule. For example, the majority faults the Court of Criminal Appeals for “rel[ying] less upon the adaptive deficits . . . than upon Moore’s apparent adaptive strengths,” ante, at 6–7, and for “rel[ying] heavily upon adaptive improvements made in prison,” ante, at 8. But in Moore, we said only that a court ought not “overemphasiz[e]” adaptive strengths or place too much “stres[s]” on improved behavior in prison. This left “the line between the permissible—consideration, maybe even emphasis—and the forbidden—‘overemphasis’—. . . not only thin, but totally undefined . . . .” Moore, 581 U. S., at ___ (Roberts, C. J., dissenting) (slip op., at 11). The major-ity’s belief that the state court failed to follow Moore on remand merely proves that “[n]either the Court’s articulation of this standard [in Moore] nor its application sheds any light on what it means.” Id., at ___ (Roberts, C. J., dissenting) (slip op., at 10).
Having concluded that the Court of Criminal Appeals failed to apply the standard allegedly set out in Moore, the Court today takes it upon itself to correct these factual findings and reverse the judgment. 1 * This is not our role. “We do not grant a certiorari to review evidence and discuss specific facts.” United States v. Johnston, 268 U. S. 220, 227 (1925); see also Salazar-Limon v. Houston, 581 U. S. ___, ___ (2017) (Alito, J., concurring in denial of certiorari) (slip op., at 2) (“[W]e rarely grant review where the thrust of the claim is that a lower court simply erred in applying a settled rule of law to the facts of a particular case”). If the Court is convinced that the Court of Criminal Appeals made a legal error, it should vacate the judgment below, pronounce the standard that we failed to provide in Moore, and remand for the state court to apply that standard. The Court’s decision, instead, to issue a summary reversal belies our role as “a court of review, not of first view.” Cutter v. Wilkinson, 544 U. S. 709, 718, n. 7 (2005).
The Court’s foray into factfinding is an unsound departure from our usual practice. The error in this litigation was not the state court’s decision on remand but our own failure to provide a coherent rule of decision in Moore. I would deny the petition for a writ of certiorari. I certainly would not summarily reverse and make our own finding of fact without even giving the State the opportunity to brief and argue the question. I therefore respectfully dissent.
1* The Court excuses its usurpation of the factfinding role by contrasting the conclusions of “the trial court,” ante, at 6–7, 10, with the views of “the court of appeals,” ante, at 7–9. But in Texas habeas proceedings, the Texas Court of Criminal Appeals is “the ultimate factfinder” and has authority to accept, alter, or reject the “recommendation” of the habeas court. Ex parte Reed, 271 S. W. 3d 698, 727 (2008).


The organizational law of limited liability companies (LLCs) and partnerships has always fundamentally embraced an idea known as the “pick-your-partner principle,” under which transfers of a member’s or partner’s ownership interest are restricted by statute, and those restrictions may be tightened or loosened by agreement. In recent years the pick-your-partner principle has interacted in complex and not always practical ways with Article 9 of the Uniform Commercial Code (UCC). Since 2001, UCC §§ 9-406 and 9-408 have overridden a broad range of statutory and agreement-based anti-assignment provisions, subject to complex exceptions that have tended to protect the pick-your-partner principle in many significant respects, while also proving analytically very difficult to handle. Recently, however, in an important step forward, Article 9’s overrides of anti-assignment provisions have recently been amended to make them simply inapplicable to LLC and partnership interests.
One hopes that these amendments to Article 9’s overrides (hereinafter the “2018 amendments” because they were approved last year) will soon be enacted by the states, but in the meantime, the current overrides will remain on the books in various jurisdictions with all of their existing complexities. Accordingly, this article focuses not only on the 2018 amendments, but also on an analysis of the overrides as they now stand, as applied to LLC and partnership interests. The amendments themselves are quite simple, but the article discusses them only after analyzing the overrides because the amendments are more easily understood against that background.
Any co-owner of a privately held business organization may have a substantial stake in determining who the other co-owners are. If a second co-owner has the power to transfer its interest to a stranger, then the second co-owner can, in effect, force the first co-owner into a venture with the stranger/transferee without the first co-owner’s consent. The policy and effect of the pick-your-partner principle under LLC and partnership law is to prevent such an outcome.
UCC Article 9, by contrast, has the very different policy orientation of facilitating voluntary transfers of personal property. Article 9’s most familiar application is to transfers of property as security for the repayment of loans, but Article 9 also applies to outright sales of certain types of personal property. Some of these transfers and outright sales are precisely those that the pick-your-partner principle seeks to prevent, and as a result, for personal property consisting of LLC or partnership interests, the interaction of the pick-your-partner principle with Article 9 has been complex and thorny. Some have even called it recondite.
Ownership interests in a business organization, particularly one that is unincorporated, can be formally or informally bifurcated into governance rights and economic (or financial) rights. Governance rights consist of the owner’s right to vote on, consent to, or otherwise make decisions about the organization’s activities, and the right to receive information about the organization. Economic rights consist of the owner’s entitlement to receive monetary distributions from the organization, whether from its profits or from an eventual dissolution and winding up. A complete ownership interest typically comprises both governance rights and economic rights. A good example of purely economic rights is a transferable interest in an LLC or limited partnership. See, e.g., Uniform Limited Liability Company Act (ULLCA) § 102(24) (2013).
The other key type of property for purposes of this article is payment intangibles, which is a subset of general intangibles. The distinction between a general intangible that is also a payment intangible on one hand, and a general intangible that is not a payment intangible on the other, is that the former includes only general intangibles under which the “principal obligation” of the “account debtor” is “a monetary obligation.” § 9-102(a)(62). In this article, the important term “account debtor” may be understood simply as the entity that is obligated on a payment intangible or other general intangible, i.e., the LLC or partnership itself as opposed to its members or partners. To determine whether the “principal obligation” is “monetary,” one must weigh the relative importance of a member’s or partner’s governance and economic rights: if the LLC’s or partnership’s principal obligation in respect of the ownership interest is economic and thus “monetary,” then the ownership interest is a general intangible that is also a payment intangible (or simply “payment intangible” for short). Otherwise, the ownership interest is a general intangible that is not a payment intangible. In general, if a member or partner has governance rights that the LLC or partnership is obligated to respect, the ownership interest is likely a general intangible that is not a payment intangible.
This distinction between payment intangibles and other general intangibles affects Article 9’s scope, which is crucial to understanding the overrides because of course the overrides apply only within that scope. Article 9’s scope includes two principal types of transactions relevant to this article: interests in either payment intangibles or other general intangibles that secure a loan or another obligation (referred to in this article as ordinary security interests), and outright sales of payment intangibles. In fact, outright sales of payment intangibles are statutorily defined in Article 9 as “security interests,” purely as a matter of terminological convenience, because many (though not all) of Article 9’s rules for ordinary security interests also apply directly to sales of payment intangibles. By contrast, Article 9’s scope does not include outright sales of general intangibles that are not payment intangibles, because most of such sales have little enough in common with ordinary security interests that inclusion would not be sensible. (The boundary between an outright sale of property and an ordinary security interest in the property is not always self-evident, but that topic is beyond the scope of this article. See, e.g., § 9-109 cmt. 4.) One final note on Article 9’s scope is that transfers by gift or, generally, transfers by operation of law are not covered.
Bringing these strands together, Article 9 typically does not apply at all to the most common kind of transfer in this area—namely, outright sales of a member’s or partner’s complete ownership interest—because such a transaction is typically the sale of a general intangible that is not a payment intangible. By the same token, Article 9 does not apply to outright sales of a member’s or partner’s governance rights alone. But Article 9 does apply, and hence its overrides discussed below might apply, to ordinary security interests in complete ownership interests; to ordinary security interests in economic rights alone; and to outright sales of economic rights alone.
The fact that Article 9 applies to a particular transaction, though, does not necessarily mean that there is a practical conflict between an Article 9 override and the pick-your-partner principle. Whether a practical conflict exists depends on three elements. First, do the applicable statutes governing the organization directly restrict transfers? Such restrictions are universal or nearly so in the case of governance rights and complete ownership interests (e.g., ULLCA § 407(b)(2) (2013)), but they are nonexistent or nearly so in the case of economic rights (e.g., id. § 502(a)). Second, do the LLC’s or partnership’s own organic documents alter (or perhaps track) the statutory law just mentioned, for example by restricting transfers of economic rights? Organizations may indeed adopt restrictions on the transfer of economic rights, in order to ensure that all owners retain their economic stake in the organization and, as a result, have reasonably well-aligned governance incentives. And finally, if a restriction on transfer is imposed by either of the foregoing sources, does one of the Article 9 overrides invalidate or limit the restriction?
Part of what makes Article 9’s overrides of anti-assignment provisions difficult is that they appear in two separate sections that are phrased quite similarly, but have subtle distinctions, and do not overlap. The first override, in § 9-406, is relatively strong and simple in its effects, but it applies to only a narrow set of transactions. The second override, in § 9-408, applies more broadly and is more complex in its provisions that apply to LLC and partnership interests, but it has only relatively weak effects on the transactions to which it applies. Taking into account the narrowness of the first and the weakness of the second, plus the availability of the opt-in process discussed in Part II.C, the overrides have generally not posed substantial problems for those who seek the protection of the pick-your-partner principle. On the other hand, general conclusions only take one so far in particular transactions.
Article 9’s first override, beginning at § 9-406(d), invalidates any “term in an agreement between an account debtor and an assignor” to the extent that that term “prohibits, restricts, or requires the consent of . . . the account debtor” to “the assignment or transfer of, or the creation, attachment, perfection, or enforcement of a security interest in . . . the payment intangible.” The simplicity of this provision is evident from its shortness, and the strength of this provision is that it overrides restrictions on all aspects of security interests, including “enforcement,” as further discussed below.
The § 9-406 override is narrow, however, in three important ways. First, it applies only to payment intangibles (leaving aside its application to other types of property not relevant to this article), and only to ordinary security interests in them. See § 9-406(e). In other words, the override does not apply to transfers of governance rights, in either an outright sale or an ordinary security interest; and it does not apply to transfers of a complete ownership interest in either an outright sale or an ordinary security interest, assuming that the complete ownership interest is a general intangible that is not a payment intangible. Nor does the override apply to an outright sale of a payment intangible (other than a foreclosure sale or a secured party’s acceptance of the payment intangible in satisfaction of the obligation it secures). See the discussion of § 9-408 in Part II.B. The narrowness of the § 9-406 override is important as a practical matter because when an LLC’s or partnership’s organic documents impose restrictions on transfer, the restrictions sometimes apply by their own terms only to governance rights or complete ownership interests, not to purely economic rights (classified as payment intangibles) in the first place.
Second, the § 9-406 override has no effect on an anti-assignment clause in an agreement among the organization’s members or partners inter se, as opposed to terms in an agreement with the organization itself. This is because the override applies only to terms in an agreement with “an account debtor” and the assignor/transferor, and as noted in Part I, the LLC or partnership itself, rather than the other members or partners, is the account debtor in this context. Moreover, there may be substantial grounds to question whether the override applies even to an anti-assignment clause that is set forth directly in the organization’s operating agreement, partnership agreement or other organic documents, because as a formal matter, an LLC or partnership is usually not a party to these agreements. On the other hand, substance-over-form arguments should be borne in mind on this point.
Third and relatedly, if the term of the agreement imposes a consent requirement, the override applies only if the consent required is that of the LLC or partnership itself, as opposed to one or more members or partners. For example, if an LLC is member-managed, the agreement will almost certainly require the consent of the members, and accordingly, the override will not apply to that requirement.
Section 9-408 is also broader than § 9-406 in two additional ways. First, it applies to a broader range of transactions, namely outright sales of payment intangibles (statutorily included in Article 9’s term “security interest,” as noted in Part I) and ordinary security interests in general intangibles that are not payment intangibles. Outright sales of economic rights, covered here, perhaps are more common than ordinary security interests in them, covered in §9-406; and certainly general intangibles that are not payment intangibles is the most common classification of an LLC or partnership interest.
Second, the statutes that § 9-408 overrides are of broad applicability because they are restrictions on the transfer of general intangibles that are not payment intangibles, i.e., virtually all complete ownership interests, plus all governance rights taken alone. As a practical matter, such statutory restrictions are nearly universal in this area, though a particular organization’s organic documents may sometimes alter the statutory default rules.
On the other hand, just as for § 9-406 above, § 9-408 does not apply to an anti-assignment clause in an agreement among the organization’s members or partners inter se, as opposed to an agreement with the organization itself. Similarly, and again just as for § 9-406, if the term of the agreement imposes a consent requirement, § 9-408 applies only if the consent required is that of the organization itself, as opposed to one or more members or partners. This override of consent requirements, in § 9-408 unlike § 9-406, extends to statutes as well as terms in an agreement, but nonetheless only if the consent required is that of the organization itself as opposed to one or more members or partners—but this is not how the LLC and partnership statutes work. Instead, the statutes place the power to give or withhold consent in the hands of the members or partners themselves.
The feature of this override that makes its effects relatively weak, and thereby substantially accommodates parties seeking the protection of the pick-your-partner principle, is that § 9-408 invalidates restrictions only on the “creation, attachment, or perfection” of security interests. It does not, unlike § 9-406, invalidate restrictions on “enforcement” of security interests. Subsection 9-408(d) amplifies on this point by specifying among other things that, even giving effect to the § 9-408 override, a security interest that is subject to an otherwise enforceable restriction is “not enforceable” against the “account debtor” (i.e., the LLC or partnership itself), and “does not entitle the secured party to enforce the security interest.” In other words, under § 9-408, a security interest (including an outright sale of a payment intangible) may go forward as between the transferor and transferee, but not as between the transferee and the LLC or partnership. The secured party acquires property rights (an ordinary security interest or an ownership interest) to the transferring member’s or partner’s ownership interest, and the value of these rights would be respected, for example in a bankruptcy of the transferor, or as applied to proceeds from a transfer not affected by a restriction. See UCC § 9-408 cmt. 7. But the secured party is nonetheless without power of its own to step into the transferor’s shoes and exercise the transferor’s governance or economic rights.
Summarizing the substance of the two overrides, it is useful to think in terms of four permutations, based on the two classifications of collateral and the two forms of transaction. First, an outright sale of a general intangible that is not a payment intangible is not within the scope of Article 9, so neither override applies. Second, with an ordinary security interest in a general intangible that is not a payment intangible, the relatively weak override in § 9-408 applies, so that the secured party cannot enforce the transferred governance or economic rights against the organization. Third, with an outright sale of a payment intangible, again the relatively weak override in § 9-408 applies, so that the secured party cannot enforce the transferred rights against the organization. And fourth, with an ordinary security interest in a payment intangible, the relatively strong override in § 9-406 applies, so that the secured party can enforce the transferred rights against the organization. The Permanent Editorial Board for the Uniform Commercial Code (P.E.B.) is considering issuing a report that would further detail the application of both overrides to LLC and partnership interests.
Neither of the Article 9 overrides applies to property that is a security as defined in UCC Article 8. This is because securities are classified by Article 9 as “investment property” rather than as general intangibles or, a fortiori, payment intangibles.
The term “security” generally does not include ownership interests in LLCs and partnerships, but it does include them if the “terms” of the ownership interest “expressly provide that it is a security” governed by Article 8. See §§ 8-102(a)(15), 8-103(c). Hence, one established way for transactional lawyers to avoid the overrides altogether is to have the organization “opt in” to Article 8 by adopting appropriate provisions in its organic documents. Related measures include providing for the security to be certificated or uncertificated, and preventing the organization from opting back out of Article 8 without the consent of the parties concerned.
Compared to the complex analysis in Part II, enactment of the 2018 amendments will markedly simplify the law in this area, eliminating the possible conflicts with the pick-your-partner principle that can remain despite the exceptions in §§ 9-406 and 9-408, and without the need for an Article 8 opt-in.
This section does not apply to an ownership interest in a limited liability company, limited partnership, or general partnership, regardless of the name of the interest and whether the interest: (i) pertains to economic rights, governance rights, or both; (ii) arises under: (a) an operating agreement, the applicable limited liability company act, or both; or (b) a partnership agreement, the applicable partnership act, or both; or (iii) is owned by: (a) a member of a company or transferee or assignee of a member; or (b) a partner or a transferee or assignee of a partner; or (iv) comprises contractual, property, other rights, or some combination thereof.
A new comment to § 9-406 provides that the § 9-408 comment applies to § 9-406 as well.
By excluding from the overrides “a security interest” in an ownership interest, the 2018 amendments permit outright sales of payment intangibles to go forward, as well as ordinary security interests in payment intangibles, and ordinary security interests in general intangibles that are not payment intangibles. The overrides remain in effect for general intangibles that are not LLC or partnership interests and for other classifications of personal property that are not relevant to this article.
The 2018 amendments were initially recommended by the P.E.B. in conjunction with representatives from the Joint Editorial Board on Uniform Unincorporated Organization Acts. They were then approved in accordance with the respective procedures of the UCC’s two sponsoring organizations, the American Law Institute and the Uniform Law Commission. As a result, they are now a part of the UCC’s official text.
At the time of this writing, it is too early for the 2018 amendments to have been enacted in any jurisdiction. On the other hand, in recent years a number of states, led by Delaware, have enacted non-uniform provisions having the same thrust. Some of the non-uniform provisions appear in the enacting states’ UCC; others appear in their LLC and partnership organizational statutes; and others appear in both spots, as belt and suspenders and to ensure they will be found.
An important conflict-of-laws question can arise if a transaction involves elements from more than one jurisdiction, one of which has the unamended Article 9 overrides, and another of which has an eventual enactment of the 2018 amendments (or an existing, comparable non-uniform provision). Article 9’s conflicts rule for perfection and priority of security interests in general intangibles does not apply to the treatment of transfer restrictions, because this issue is neither “perfection,” “the effect of perfection or nonperfection,” nor “priority.” See § 9-301(1). Article 1’s main catch-all conflicts rule, which leaves some conflicts questions to the agreement of the parties, would also generally be inappropriate here because transfer restrictions inherently present a three-party question that is not amenable to treatment by two-party agreement. See § 1-301(a). Accordingly, a choice-of-law clause in the security agreement or other agreement between transferor and transferee does not control, as Comment 3 to § 9-401 makes clear. Instead, one would hope that a court would apply the version of the overrides enacted by the jurisdiction in which the entity is organized, as the same Comment assumes. (The “internal affairs” doctrine in business entity law would also be consistent with such an outcome, although of course, restrictions on transfers to nonmembers or nonpartners are not strictly internal affairs issues.) In any case, the bottom line is that real certainty in this area will most promisingly have to come from broad enactment of the 2018 amendments. The members of each state’s Uniform Law Commission delegation can often be of direct help in those enactment efforts.
The 2018 amendments will protect the pick-your-partner principle while also greatly simplifying and clarifying its interactions with Article 9. By the same token, as is often true of simple rules, the 2018 amendments may also sometimes reach more broadly than really needed, for example by preventing simple attachment and perfection, without enforcement, of a security interest in a complete ownership interest. However, those transactions can continue to go forward despite the 2018 amendments by means of, for example, the Article 8 opt-in, or other amendment or waiver of the organization’s organic documents. On balance, the gains in this area from simplicity and clarity should clearly outweigh the losses from the occasional extra burden to an Article 9 transaction.
*Carl S. Bjerre is Kaapcke Professor of Business Law at the University of Oregon School of Law. Daniel S. Kleinberger is Emeritus Professor of Law at Mitchell Hamline School of Law. Edwin E. Smith is a partner at Morgan, Lewis & Bockius LLP. Steven O. Weise is a partner at Proskauer Rose LLP.


On December 27, 2016, U.S. Customs and Border Protection (CBP) amended the regulations regarding the requirement to file a Toxic Substances Control Act (TSCA) certification when importing into the customs territory of the United States chemicals in bulk form or as part of mixtures and articles containing a chemical or mixture. The proposed amendments were intended to clarify the description, scope, and definitions of the requirements for the importation of chemical substances, mixtures and articles containing a chemical substance or mixture, as well as the requirements associated with TSCA-excluded chemicals.
Amendments revise the proposed change in § 12.119 regarding the scope of the regulation. To clarify the regulation based on the public comments, the term “Chemicals not subject to TSCA” in proposed § 12.119(b) is changed in the final rule to “TSCA-excluded chemicals”. In addition, because the proposed revision of the scope in § 12.119(c) was confusing with respect to the application of the regulations to articles in §§ 12.120 through 12.127, CBP is adding the phrase, “if so required by the Administrator by specific rule under TSCA” to § 12.119(c), which mirrors the current language of the regulation prior to the proposed amendment.
The final rule replaces the existing definition of the term “chemical substance in bulk form” in § 12.120(b) with a definition of “TSCA chemical substance in bulk form”, and adds new definitions for the terms “TSCA chemical substance as part of a mixture” in § 12.120(c) and “TSCA-excluded chemicals” in § 12.120(d). These definitions are revised and added to clarify that the certification obligations apply to both chemical substances and mixtures that are subject to TSCA, which require a positive certification, as well as those chemicals and mixtures that are not subject to TSCA, which require a negative certification (unless clearly identified as a TSCA-excluded chemical), and to ensure that terms used in the regulatory text are defined when necessary. “Mixture” is a statutory term in TSCA that does not apply to TSCA-excluded chemicals. TSCA-excluded chemicals require a negative certification whether imported as a single TSCA-excluded chemical mixed with other TSCA-excluded chemicals. Proposed amendment also adds a definition of the term “Administrator” to mean the Administrator of the EPA, and “covered commodity” to include any merchandise that is an article, a TSCA chemical substance in bulk form, TSCA-excluded chemicals (as those terms are defined in § 12.120(a), (b), or (d)), or that is a mixture as defined in TSCA and describe a commodity that is subject to actions under § 12.122, et seq. and § 127.28.


MORAUER & HARTZELL, INC., et al.
John Louis Smith, Jr., Washington, D.C., for petitioner.
James C. Gregg, Washington, D.C., for respondents.
Under § 33(g) of the Longshoremen's and Harbor Workers' Compensation Act, an employer is not obligated to pay compensation to an employee who, without the employer's written approval, settles a claim against a third person for an amount less than the compensation to which the employee is entitled under the Act. 44 Stat. 1441, as amended, 33 U.S.C. § 933(g). Certiorari was granted in this case, 402 U.S. 1008, 91 S.Ct. 2196, 29 L.Ed.2d 430 (1971), on the assumption that it presented the question whether the consent judgment entered by the District Judge awarding petitioner damages against a third person evidenced a 'compromise' subject to § 33(g), or an award of damages 'determined * * * by the independent evaluation of a trial judge,' not subject to § 33(g) under Banks v. Chicago Grain Trimmers Assn., 390 U.S. 459, 467, 88 S.Ct. 1140, 1145, 20 L.Ed.2d 30 (1968). Fuller examination of the case on oral argument discloses that the record does not adequately present that question. The writ of certiorari is therefore dismissed as improvidently granted.
Petitioner McClanahan was employed by respondent when a steel bar struck his head. On August 24, 1964, the Bureau of Employees' Compensation found that the injury had caused temporary total disability and ordered the respondent to compensate McClanahan in the amount of $3,780. While these proceedings were pending, the petitioner instituted a civil action in the District Court against a third party, alleging that its employees had contributed to his injury. Before the civil action came to trial, the judge conducted a pretrial conference, during which he spoke with counsel first together and then individually. During these conversations the judge suggested that he had reviewed the file and that he believed the plaintiff's case was worth about $5,000 (although McClanahan had sued for $9,000). Other sums were discussed but the parties accepted his suggestion. On March 3, 1967, a consent judgment was entered for $5,000, of which petitioner's wife received $3,000 and he received $2,000. Of petitioner's share $800 was retained by his lawyer and the remaining $1,200 of the petitioner's share was transferred to his employer's insurance carrier as partial reimbursement for disability payments previously made under the Board's 1964 order.
Thereafter, on July 26, 1967, the petitioner filed with the Bureau a claim for modification of its 1964 compensation award, alleging that his injuries were more serious than previously realized. The Deputy Commissioner agreed with at least part of his assertions and added $2,328.70 to the prior award.
On appeal, however, the lower courts were persuaded that the employer was immune from further liability because the petitioner had 'compromised' his claim against a third party. The Longshoremen's and Harbor Workers' Compensation Act provides that an employer is liable only for the excess of a worker's injury over any amount a worker may recover from a third party. Thus, an employer is benefited when an injured employee obtains a larger judgment from a third party. To protect employers from ill-advised compromises by employees § 33(g) generally relieves an employer of further liability if, without his written approval, his injured servant settles with another possible defendant. Thus, in the instant case, because the respondent had not subscribed to the consent judgment, the lower courts held that it had been spared further payments to McClanahan.
We granted certiorari to consider whether the lower courts' holdings conflict with our decision in Banks v. Chicago Grain Trimmers Assn., 390 U.S. 459, 88 S.Ct. 1140, 20 L.Ed.2d 30 (1968), that an employee's acceptance of a judicially ordered remittitur in lieu of a new trial was not a 'compromise' within the meaning of § 33(g). 402 U.S. 1008, 91 S.Ct. 2196, 29 L.Ed.2d 430 (1971). Banks involved a similar chain of events except that Banks, unlike McClanahan, went to trial and a jury awarded him $30,000, which the judge thought was excessive. The court accordingly said it would order a new trial unless the parties agreed to a remittitur which would reduce the total judgment to.$19,000. Banks accepted without obtaining his employer's consent. We held that his acquiescence had not constituted a 'compromise' because it had been induced by the 'independent evaluation of a trial judge' and the danger of Banks' accepting too little had not been present. 390 U.S., at 466, 467, 88 S.Ct. 1140, 1145.
Similarly, no risk of unwise compromise faced McClanahan's employer. Pretrial conferences are the last stop before the final stage in the trial litigation process. Preceded by pleadings and discovery, the conference previews the expected trial scenario, weeds out illusory and frivolous issues, and exposes the substance of conflicting claims. Because pretrial judges review the evidence to be presented in light of the clarified issues, they are in a position to assess the outcome. Thus, one widely applauded function of the pretrial conference has been its encouragement of settlements in personal-injury cases. While some dispute continues as to the degree of persuasion a judge should exercise in obtaining a settlement, critics have not complained that pretrial conference settlements have been unreasonable or unfair. See F. James, Civil Procedure 228 (1965); Wright, The Pre-trial Conference, 28 F.R.D. 141, 145—147 (1960); Brennan, Introduction to the Problem of the Protracted Case, 23 F.R.D. 376, 378—379 (1958); Clark, Objectives of Pre-Trial Procedure, 17 Ohio St.L.J. 163, 167 (1956). Thus, McClanahan's trial judge below surveyed the evidence which was to be presented at trial and after discussion with both adversaries suggested that the expected value of McClanahan's case was about $5,000. That assessment was made by one experienced in understanding how juries are likely to view a claim. Absent circumstances not shown here, we should presume that such evaluations are reasonable and do not prejudice employers' interests.
In Banks—unlike here—the judge had seen a full jury trial's worth of evidence. But in both situations there were critical assessments of the expected values of plaintiffs' future prospects. In Banks the employee might well have adduced different, stronger evidence at a second trial, or, the remittitur order may have been vacated on appeal. In settling on a suggested remittitur of $11,000 the court may have extrapolated from hindsight but it had no more, perhaps even less, information concerning Banks' eventual success than had McClanahan's pretrial judge concerning his prospects. The important similarity between these cases is that an independent and informed forecast was made of events yet to unfold.
Moreover, we have construed § 33(g) so as to confine this defense to those situations where an employer can demonstrate actual prejudice from unilateral settlements by the employee. In Chapman v. Hoage, 296 U.S. 526, 56 S.Ct. 333, 80 L.Ed. 370 (1936), our first opinion discussing § 33(g), the employer claimed prejudice because his employee had unilaterally discontinued a lawsuit against a third party. The trial judge had made no assessment of its prospects. The worker had simply failed to prosecute his case. This Court ultimately determined that the lawsuit had been worthless and that absent a showing of actual prejudice the employer was not entitled to a windfall 'compromise' defense as a result of its dismissal.
The purpose of the Longshoremen's and Harbor Workers' Compensation Act was to guarantee a minimum level of compensation to covered employees. The record clearly reveals that McClanahan has not yet received that statutory minimum.
We should not depart from our holding in Banks. Where a plaintiff cannot rely on the judgment and experience of a federal district judge, he has no choice but to refuse any disposition of the case short of a full trial and numerous appeals. In these days of crowded court dockets, the effect of the rule adopted by the Court of Appeals will be to discourage consent judgments in cases of this kind and force all such litigation through the trial process, further overwhelming already overburdened judges. Finally, there is something most inequitable in holding that a person-injury plaintiff who relies on the good faith and judgment of a federal judge should thereafter be penalized and deprived of compensation for his injury because of his reliance. I would reverse the decision below to enforce the congressional mandate contained in the Longshoremen's and Harbor Workers' Compensation Act as we did in our decision in Banks.
Banks v. Chicago Grain Trimmers Assn., Inc., 390 U.S. 459, 466, 88 S.Ct. 1140, 1145, 20 L.Ed.2d 30 (1968).
In Klump, the third party and the plaintiff-employee waived a jury, the latter testified briefly, the former conceded liability, and when both agreed that damages ranged between $4,000 and $4,500, the trial judge entered a judgment for $4,300. Before the compensation board the employer later argued unsuccessfully that this judgment had constituted a compromise. Klump v. Erie County Highway Department, 275 App.Div. 1017, 91 N.Y.S.2d 689, leave to appeal denied, 300 N.Y. 761, 90 N.E.2d 69. The opinion of the state workman's compensation board is reported at State of New York Workman's Compensation Board, Special Bulletin No. 229, p. 192 (1949).


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When an applicant for a patent is compelled by the rejection of his application at the Patent Office, to narrow his claim by the introduction of a new element, he cannot, after the issue of the patent, broaden his claim by dropping the element which he was compelled to include in order to secure the patent.
The patent granted to Helen M. MacDonald, September 29, 1874, for an improvement in dress protectors, must be construed to include a fluted or plaited band or border as one of the essential elements of the invention, and is not infringed by the manufacture or sale of skirt protectors which have neither plaited nor fluted bands or borders.
This was a suit in equity to restrain an alleged infringement of letters patent.
This was a suit to restrain the infringement of letters patent for an "improvement in dress protectors," granted to Helen M. Macdonald, the intestate of the defendant in error, dated September 29, 1874, upon an application filed May 10, 1873.
"My invention relates to protectors for the lower edge of dresses and other garments, and consists of a band or strip of fluted or plaited fabric, either waterproof itself or covered or bound with any waterproof material."
"In the drawing Fig. 1 represents a view of a detached portion of the dress protector, and Fig. 2 represents the protector as applied to the bottom of a dress skirt. "
"A is the plaited or fluted band, which is waterproof or bound with waterproof material, and a is a heading to which it may be secured for better attachment to the garment."
"Heretofore skirt protectors have been made of a plaited or fluted strip of 'wiggan' or other fabric stiffened with starch, which, upon becoming wet, gets limp, loses its shape, and absorbs the dirt, besides being objectionable on account of the harsh scraping noise it makes upon the pavement."
"By my improvement these objections are overcome. The waterproof protector preserves the lower edge of the dress from all moisture on the ground, retains its rigidity and proper shape, giving a graceful hang to the skirt, and can easily be cleaned."
Both the figures referred to in the specification represented skirt protectors made with plaited or fluted bands.
"As a new article of manufacture, a skirt facing or protector, having a fluted or plaited border, bound with or composed of enameled cloth or waterproof material, substantially as and for the purpose set forth."
On November 9, 1874, the patentee filed in the Patent Office a disclaimer by which she struck out from her claim the words "facing or," leaving the claim to cover only a skirt protector.
The answer of the defendants denied infringement, and denied that Macdonald was the first and original inventor of the improvement described in her patent.
Upon final hearing the circuit court found the issues were for the plaintiff, and entered a decree in her favor against the defendants for profits and damages, and restrained the latter from selling to be used protectors embracing said patented improvement, or any substantial part thereof. From this decree the defendants appealed. After the appeal, Macdonald died, and Carrigan, who had been appointed her administrator, was made appellee in her stead.
"I use a strip of India rubber that is made with longitudinal ribs, of sufficient size to withstand the wear to which it is subjected, and between these ribs there is a groove that makes the strip light and flexible, and the web of rubber between the ribs receives a line of stitching, by which the protector strip is united to a strip of rubber cloth, muslin, or other suitable material that is to be attached to the inside of the dress at or near the lower edge."
The skirt protectors made under this patent are not made with a fluted or plaited band or border. The defendants insist that by reason of this fact they are essentially different from the improvement described in the Macdonald patent, and therefore do not infringe that patent. On the other hand, the plaintiff insists that the fluted or plaited border mentioned in the Macdonald patent is a matter of descriptive form merely, and not an essential part of the invention covered by the patent, and that the use of skirt protectors without a fluted or plaited border, but in other respects substantially like the protectors described in the Macdonald patent, is an infringement of that patent. Upon this issue we think the defendants are right.
"My invention consists of a strip of enameled muslin from two to four inches wide, which may be covered with any dress material, such as silk, cashmere, alpaca, armure, or tamise cloth; it is then formed in pleats, and bound across the top (like samples), said pleats being held in place by one row of machine stitching through the center. It is then ready to be sewed in the dress skirt. "
"My invention protects the dress from being cut or damaged by contact with earth or brick or concrete pavements and sidewalks, said invention being impervious to moisture; it also protects the skirt from being soiled or damaged by mud or dampness of street crossings, sidewalks, etc."
"It also forms a very neat trimming, and improves the hanging of the skirt."
"My invention consists in protecting the lower edge of dresses and other garments by affixing thereto a portion of waterproofed material, or in waterproofing the material itself, and I claim as my invention the use of waterproofed material, in whatsoever form it now exists or may hereafter exist, for the purpose of protecting the lower edge of all garments from wear and soiling, either from friction or moisture, and refer to the enclosed samples as substantially representing my invention."
In this specification all reference to plaits or plaiting is omitted.
The application with the substituted specification was rejected by the Patent Office on August 9, 1873, and the applicant was referred to the patent issued to James A. McKee, January 10, 1865, which covered neither a plaited nor fluted band or border as one of its elements. Upon reexamination, her application was, on September 9th, again rejected.
"My invention consists in protecting the lower edge of dresses and other garments by affixing thereto a portion of waterproofed or enameled material, or in waterproofing the material itself, and I claim as a new article of manufacture a skirt facing or protector, having a plaited or fluted border bound with or composed of enameled cloth or other waterproof material, substantially as and for the purpose set forth."
among others, of M. Herbert Chase, and that "the subject matter involved in the interference" was "a skirt protector having a fluted or plaited border." The skirt protector of Chase referred to in the notice of interference was a plaited strip of India rubber. Macdonald prevailed over Chase in the matter of the interference between their two applications, and received the patent for her invention, which is the patent involved in this suit.
This patent, it will be observed, covers a skirt protector merely, without including any means or method for attaching it to the dress, the purchaser being left to fasten the protector to the dress in her own way.
It is shown by the evidence in the record that for several years prior to the earliest date assigned by Macdonald for the discovery of the device, in fact as far back as 1857, strips of enameled cloth without fluting or plaiting had been sewed on the bottom of the skirts of ladies' dresses, so as to project below the lower edges, with a view of protecting the inside surface and lower edge.
This fact and the file wrapper and contents of which we have stated the substance make it clear that the claim and specification of the Macdonald patent must be construed to include, as their language requires, a fluted or plaited band or border as one of the essential elements of the invention. Without this element, the patent would not have been issued. The Patent Office decided, and it is clear, that without it the invention had been anticipated. Where an applicant for a patent to cover a new combination is compelled by the rejection of his application by the Patent Office to narrow his claim by the introduction of a new element, he cannot after the issue of the patent broaden his claim by dropping the element which he was compelled to include in order to secure his patent. Leggett v. Avery, 101 U. S. 256; Goodyear Dental Vulcanite Co. v. Davis, 102 U. S. 222, 102 U. S. 228; Fay v. Cordesman, 109 U. S. 408; Mahn v. Harwood, 112 U. S. 354, 112 U. S. 359; Cartridge Co. v. Cartridge Co., 112 U. S. 624, 112 U. S. 644; Sargent v. Hall Safe & Lock Co., 114 U. S. 63.
claims of the patents sued on in this case are claims for combinations. In such claims, if the patentee specifies any element as entering into the combination, either directly by the language of the claim, or by such a reference to the descriptive part of the specification as carries such element into the claim, he makes such element material to the combination, and the court cannot declare it to be immaterial. It is his province to make his own claim and his privilege to restrict it. If it be a claim to a combination, and be restricted to specified elements, all must be regarded as material, leaving open only the question whether an omitted part is supplied by an equivalent device or instrumentality."
"In patents for combinations of mechanism, limitations and provisos imposed by the inventor, especially such as were introduced into an application after it had been persistently rejected, must be strictly construed against the inventor and in favor of the public, and looked upon as in the nature of disclaimers."
These authorities are in point and decisive of the present case.
If an applicant, in order to get his patent, accepts one with a narrower claim than that contained in his original application, he is bound by it. If dissatisfied with the decision rejecting his application, he should pursue his remedy by appeal. Under the circumstances of this case the inventor could not even get a reissue based on the broader claim which she had abandoned. Leggett v. Avery, ubi supra. Much less can she, in a suit brought to restrain its infringement, enlarge her patent by argument so as to cover elements not falling within its terms, and which she had explicitly abandoned.
As the skirt protectors sold by the defendants have neither plaited nor fluted bands or borders, we are of opinion, in accordance with the views expressed, that they do not infringe the patent of the plaintiff.
The decree of the circuit court must therefore be reversed, and the cause remanded, with directions to dismiss the bill.

matches: v. v. v. v. v. v. v.


§ 35.2024 Records of authority and responsibilities for radiation protection programs.
§ 35.2026 Records of radiation protection program changes.
§ 35.2040 Records of written directives.
§ 35.2060 Records of calibrations of instruments used to measure the activity of unsealed byproduct material.
§ 35.2061 Records of radiation survey instrument calibrations.
§ 35.2063 Records of dosages of unsealed byproduct material for medical use.
§ 35.2067 Records of leaks tests and inventory of sealed sources and brachytherapy sources.
§ 35.2070 Records of surveys for ambient radiation exposure rate.
§ 35.2075 Records of the release of individuals containing unsealed byproduct material or implants containing byproduct material.
§ 35.2080 Records of mobile medical services.
§ 35.2092 Records of decay-in-storage.
§ 35.2204 Records of molybdenum-99, strontium-82, and strontium-85 concentrations.
§ 35.2310 Records of safety instruction.
§ 35.2404 Records of surveys after source implant and removal.
§ 35.2406 Records of brachytherapy source accountability.
§ 35.2432 Records of calibration measurements of brachytherapy sources.
§ 35.2433 Records of decay of strontium-90 sources for ophthalmic treatments.
§ 35.2605 Records of installation, maintenance, adjustment, and repair of remote afterloader units, teletherapy units, and gamma stereotactic radiosurgery units.
§ 35.2610 Records of safety procedures.
§ 35.2630 Records of dosimetry equipment used with remote afterloader units, teletherapy units, and gamma stereotactic radiosurgery units.
§ 35.2632 Records of teletherapy, remote afterloader, and gamma stereotactic radiosurgery full calibrations.
§ 35.2642 Records of periodic spot-checks for teletherapy units.
§ 35.2643 Records of periodic spot-checks for remote afterloader units.
§ 35.2645 Records of periodic spot-checks for gamma stereotactic radiosurgery units.
§ 35.2647 Records of additional technical requirements for mobile remote afterloader units.
§ 35.2652 Records of surveys of therapeutic treatment units.
§ 35.2655 Records of 5-year inspection for teletherapy and gamma stereotactic radiosurgery units.


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In 1 Corinthians 3 v. 9 the word says that we are the Father's building. He is building your life in Him, whether you realize it or not!! If your number one prayer is for the Father to conform you into the image of Yahshua(Jesus), then this attitude gives Him the right to be the Architect of your life. Once we get saved we need to search the Epistles (Romans to Revelation) and allow His Holy Spirit to illuminate scriptures to our spirits to build us up into the image of Jesus. We then need to speak them into our lives.
In Acts 19 there is a story about seven sons of Sceva who attempt to cast out demons from someone in the Name of Jesus who Paul preached.(v. 13-17) The demons said that "we know Jesus and we know Paul but who are you"? Paul had to really achieve something in God for the demons to know his name and for him to be mentioned in the same sentence as Jesus!
Let’s read some of the scriptures in Paul’s epistles to allow God to build up our lives. In Romans 1 v 1, Paul said that he is the servant of Jesus. In order for God to build your life then you really have to have the attitude that God is the Boss! We are here on earth to serve Him and the people that He wants us to reach. He also says in the same verse that we are separated unto God’s Gospel. We can’t flow with the world but have to be in the world but not of the world. The world is going to pass away and the lusts thereof, but he that does the will of God shall abide forever. (1 John 2 v. 17) We have to distance ourselves from the world’s opinions and fads. Most of the people in the world are getting ready to serve the Antichrist, being prepared for his revealing by the spirit of antichrist. We can’t follow the traditions of the world that are contrary to the word of God. We can’t accept church doctrine unless it can be traced back to the word of God by at least two scriptures. We need to examine what we have been taught in church to see if it can be traced back to the word of God!
Back to Romans Chapter 1: In v. 17 the word says that the Just shall live by faith. In order for God to build you up spiritually you have to walk by faith and not by sight! You can’t make decisions based only on the circumstances that are facing you, but you need to walk by faith and not by sight. You have to see that all things were created by Jesus and for Jesus and by Him all things consist. (Colossians 1 v. 16-17) You can’t allow the circumstances to control you and your actions, but wait on God to move after you done all that you can do, by faith.
In Romans 2 v. 7, God instructs us to patiently continue in well doing. Just because God has asked to do something for Him and you don’t see the fruit of it, just keep doing what the Architect says. He is building you up for His greater use and giving you increased capacity for His blessings. He doesn’t want to bless you where your character won’t enable you to keep His blessings! In Chapter 4 v. 20, Paul mentions that Abraham did not stagger at the promises of God but held on to them strongly by faith. He was fully persuaded that what God had promised He was also able to perform! (v. 21) Again you can’t believe the lies that the devil is trying to dictate to you by the circumstances in front of you but you need to defy the circumstances and realize that God never lies.
Also, don’t be taken back by attacks and tribulation as Paul says in Chapter 5 v. 3-5 that tribulation works patience which leads to experience which leads to hope! This hope will not come back void and the Holy Spirit will never leave you ashamed about the promise that God made to you. The Architect is building us up into a strong tower of Faith!
In Chapter 6, Paul mentions in v. 11 to 13 that in order for God to build us up we need to be dead to sin, not let sin reign in our bodies and not to yield the members of our bodies as instruments of unrighteousness to sin but yield ourselves to God. Nothing can interfere with God building us up into the image of Jesus as powerful as sin taking control in our lives. Paul said in Chapter 7 that sin is warring in his members and the things that he wants to do, he doesn’t do them but the things that he doesn’t want to do, these things he does.(v. 15) He said only through Jesus can he get the victory over sin(v. 25). He said the same thing in chapter 8 v. 13 when he says that only through the Spirit of God can the deeds of our bodies that are contrary to His word be mortified! God the Architect can only build us up into the image of Jesus when we allow Him to decrease us in the flesh!
Paul says in v. 31 that if God be for us who can successfully come against us. We need to rely more on God than others. If God tells you to stand on His word for something that nobody else agrees will happen, guess what? You have to maybe stand alone with God! When this happens, God builds us up in our appreciation of who He is and weakens our dependency on others who may not agree but also may come against us!
When we do these things we are allowing the Architect to build us up into strong spiritual towers for Him and there is no telling what blessings and anointing He can give us. Our Christ like character can now maintain the new level that He brings us to.

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HYATT FRANCHISING, L.L.C., Plaintiff–Appellee, v. SHEN ZHEN NEW WORLD I, LLC, and Shen Zhen New World Investment (USA) Inc., Defendants–Appellants.
Before Easterbrook, Rovner, and Hamilton, Circuit Judges. Norman M. Leon, Attorney, DLA PIPER US LLP, Chicago, IL, for Petitioner–Appellee. Bruce M. Cohen, Jonah Daniel King, Attorneys, COHEN & LORD, P.C., Los Angeles, CA, for Respondents–Appellants.
In September 2012 Hyatt and Shen Zhen New World I entered into an agreement providing that Shen Zhen would renovate a hotel in Los Angeles and operate it using Hyatt's business methods and trademarks. Two years later Hyatt declared that Shen Zhen had not kept its promises. An arbitrator concluded that Shen Zhen owes Hyatt about $7.7 million in damages plus about $1.3 million in attorneys' fees and costs. Hyatt filed this suit under the diversity jurisdiction and asked a district court to enforce the award. The court did just that. 2017 WL 1397553 (N.D. Ill. Apr. 19, 2017). Shen Zhen appeals.
Shen Zhen's principal arguments concern the arbitrator's rulings with respect to Lynn Cadwalader, who represented it during the negotiations that led to the contract with Hyatt. Shen Zhen asked the arbitrator to issue a subpoena that would have required Cadwalader to give a deposition; the arbitrator said no. The arbitrator stated that Cadwalader lacked any information bearing on the parties' contractual dispute, which arose two years after she had stopped working for Shen Zhen. The arbitrator also declined to disqualify Hyatt's law firm, DLA Piper, which Cadwalader joined in July 2015, about three years after the contract was signed. Cadwalader had not represented Shen Zhen since October 2012. The arbitrator concluded that DLA Piper's ethics screen ensured that no confidential information would reach the lawyers representing Hyatt in 2015 and 2016.
Shen Zhen maintains that it is entitled to relief under 9 U.S.C. § 10(a)(3), which provides that a judge may set aside an arbitrator's award “where the arbitrators were guilty of misconduct in refusing to postpone the hearing, upon sufficient cause shown, or in refusing to hear evidence pertinent and material to the controversy; or of any other misbehavior by which the rights of any party have been prejudiced”. Like the district court, we do not see how either branch of Shen Zhen's argument comes within this language.
The statutory phrase “refusing to hear evidence” concerns the conduct of the hearing, not the conduct of discovery. Indeed, nothing in the Federal Arbitration Act requires an arbitrator to allow any discovery. Avoiding the expense of discovery under the Federal Rules of Civil Procedure and their state-law equivalents is among the principal reasons why people agree to arbitrate. That Hyatt's attorneys' fees in the arbitration exceeded $1 million shows that plenty of discovery occurred; an argument that the arbitrator had to allow more rings hollow.
Whether Cadwalader furnished good advice when negotiating the contract might be relevant in a malpractice action against her but does not bear on Hyatt's contention that Shen Zhen broke its promises. The contract has an integration clause that forecloses resort to the negotiating history as an interpretive tool. Shen Zhen tells us that Cadwalader might have helped bolster its contention that the contract is unconscionable, but in a commercial transaction between sophisticated parties the defense of unconscionability, if available at all, is an objective one that depends on the agreement's terms, not on what either side's lawyer may say about the negotiations. See, e.g., Pinnacle Museum Tower Association v. Pinnacle Market Development (US), LLC, 55 Cal. 4th 223, 246–47, 145 Cal.Rptr.3d 514, 282 P.3d 1217 (2012).
As for the motion to disqualify DLA Piper: a decision by an arbitrator on that subject may or may not be mistaken, either as a matter of fact (is DLA Piper's ethics screen as good as the arbitrator thought?) or as a matter of law (state rules could require disqualification no matter how good the ethics screen), but § 10(a)(3) does not provide for substantive review of an arbitrator's decisions. It provides for judicial intervention when an arbitrator commits “misbehavior”, but an error differs in kind from misbehavior. Perhaps Shen Zhen believes that Cadwalader or other lawyers at DLA Piper have engaged in misbehavior, and if so it can complain to the state bar, but the arbitrator is free of any plausible charge of misbehavior—and only misbehavior by the arbitrator comes within the residual clause of § 10(a)(3).
For a fallback argument, Shen Zhen contends that the award disregards federal and state franchise law and therefore should be set aside under 9 U.S.C. § 10(a)(4), which covers situations in which “the arbitrators exceeded their powers, or so imperfectly executed them that a mutual, final, and definite award upon the subject matter submitted was not made.” Yet § 10(a)(4) does not make legal errors a ground on which a judge may refuse to enforce an award. See, e.g., George Watts & Son, Inc. v. Tiffany & Co., 248 F.3d 577 (7th Cir. 2001); Affymax, Inc. v. Ortho-McNeil-Janssen Pharmaceuticals, Inc., 660 F.3d 281 (7th Cir. 2011). Just as an arbitrator is entitled to interpret the parties' contract without judicial review, so an arbitrator is entitled to interpret the law applied to that contract. An agreement to arbitrate is an agreement to move resolution of the parties' disputes out of the judicial system. An arbitrator is not like a magistrate judge, whose recommendations are subject to plenary judicial review.
Watts and Affymax hold that an arbitrator acts as the parties' joint agent and may do anything the parties themselves may do. Watts, 248 F.3d at 580; Affymax, 660 F.3d at 284. If they may reach a compromise over some legal issue without being accused of “violating the law,” then the arbitrator may do so on their behalf. That was the situation in Watts, another franchise case in which the arbitral loser accused the arbitrator of misapplying state franchise law.
One party in Watts contended that state law entitled it to an award of attorneys' fees, although the arbitrator had ordered each side to bear its own fees. We replied that, because the parties could have settled their dispute and agreed to cover their own fees and costs, an arbitrator likewise had that power. Arbitrators “exceed[ ] their powers” under § 10(a)(4) if they order the parties to violate the rights of persons who have not agreed to arbitrate—if, for example, an arbitrator purports to allow businesses to fix prices, to the detriment of consumers. But when an arbitrator does only what the parties themselves could have done by mutual consent, § 10(a)(4) does not intervene.
None of Shen Zhen's arguments concerns the rights of third parties. Consider, for example, its contention that Hyatt violated one of the FTC's franchise-disclosure rules, 16 C.F.R. § 436.9(g), by not furnishing changes in the draft agreement at least seven days in advance of signing. Shen Zhen concedes that it possessed the final version more than seven days in advance but maintains that Hyatt did not do enough to flag changes for attention. Suppose that Shen Zhen and Hyatt disagreed about that subject and, after negotiations, concluded that Hyatt was entitled to enforce the agreement. (A concession on damages could have produced such an agreement, even if Shen Zhen was unconvinced on the legal point.) No one else could have complained. Watts and Affymax hold that the arbitrator may do what the parties could have done. That's exactly what this arbitrator did when concluding that Hyatt had satisfied § 436.9(g). Other provisions of federal and California law that Shen Zhen invokes need not be discussed separately.
Shen Zhen cannot make headway by relabeling its “violation of law” arguments as “violation of public policy.” Law reflects public policy, to be sure, but the sort of “public policy” that judges may use to annul an award is policy designed to protect the public against the parties to the arbitration. To repeat an example from Watts, 248 F.3d at 580–81: in a contest between a truck driver and an employer, an arbitrator could not conclude that a driver whose license has been revoked can continue to drive a truck.
The parties cannot use arbitration to get around rules designed for the protection of people who have not agreed to arbitrate. That's the point of decisions such as W.R. Grace & Co. v. Rubber Workers Union, 461 U.S. 757, 766, 103 S.Ct. 2177, 76 L.Ed.2d 298 (1983). But when the parties are free under the law to agree on some outcome, the arbitrator's decision as their agent does not violate public policy. That's the holding of Eastern Associated Coal Corp. v. United Mine Workers, 531 U.S. 57, 121 S.Ct. 462, 148 L.Ed.2d 354 (2000), which concluded that an arbitrator was entitled to reinstate a driver who had twice tested positive for marijuana. It was lawful for such a person to continue driving, so it was permissible, the Court held, for an arbitrator to reinstate that worker to a driver's job even though the use of marijuana was unlawful and contrary to public policy.
More than 25 years ago, this court held that commercial parties that have agreed to final resolution by an arbitrator, yet go right on litigating, must pay their adversaries' attorneys' fees. See Continental Can Co. v. Chicago Truck Drivers Pension Fund, 921 F.2d 126, 128 (7th Cir. 1990). The American Rule requires each side to bear its legal fees in an initial round, but an entity that insists on multiplying the litigation must make the other side whole for rounds after the first. Cf. 28 U.S.C. § 1927. Section 14.4 of the contract between Hyatt and Shen Zhen includes a fee-shifting clause, so it is unnecessary to make a separate fee-shifting order under Continental Can, but if the parties cannot agree on how much Shen Zhen owes for pointlessly extending this dispute through the district court and the court of appeals, Hyatt should apply for an appropriate order.


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The Hague Judge Kuniko Ozaki wants to leave her position as a full-time judge of the International Criminal Court (ICC) in The Hague to become the ambassador of Japan in Estonia in April.
Her departure from fulltime engagement at the ICC comes before she and two of her colleagues deliver judgment in the The Prosecutor v Bosco Ntaganda case. Judge Ozaki has been sitting alongside Judge Robert Fremr (Presiding) and Judge Chang-ho Chung since they were assigned to the case in July 2014. No date has been publicly announced for the delivery of the judgment.
Ozaki wants to continue on the bench for free as a part-time judge when she takes up her new paid job as ambassador in Estonia. A majority of the court’s judges gave her leave to do so during a plenary meeting on March 19, 2019, with three judges dissenting. The dissenting judges expressed the fear that the appearance of judicial independence could be affected and that the matter could lead to a disqualification request or be raised as a ground of appeal by one of the parties, which would mean loss of time and money for the court.
In her memorandum to her colleagues, Judge Ozaki threatens to quit as judge of the ICC altogether if her request to serve part-time is not granted.
The internal memorandum issued by the Presidency after the plenary makes clear that the judges considered only whether Judge Ozaki’s appointment as ambassador would violate Art. 40(2) of the Rome Statute, which provides that “[j]udges shall not engage in any activity which is likely to interfere with their judicial functions or to affect confidence in their independence.” Knowledgeable readers might wonder why the judges did not also consider Art. 40(3), which provides that “[j]udges required to serve on a full-time basis at the seat of the Court shall not engage in any other occupation of a professional nature.” If Art. 40(3) applied, Judge Ozaki clearly could not remain an ICC judge while serving as an ambassador.
Ah, but here’s the clever part. Judge Ozaki did not simply ask the Presidency to let her take up the ambassadorship — a request that would have violated Art. 40(3). Nor did she even ask the Presidency to let her go part-time in order to accept the position, which might not have run afoul of the letter of Art. 40(3), but would likely have met with more resistance from her colleagues, given that it would have represented an obvious end-run around the provision. Instead, on 7 January 2019, Judge Ozaki asked to stop being a full-time judge as of February 11 “citing personal reasons and without mention of any future activities or occupation.” The Presidency granted that request. Then, on February 18 — one week after her status changed to part-time — she informed the Presidency that she had been appointed ambassador to Estonia. At that point, because she was no longer a full-time judge, Art. 40(3) did not apply to her. Problem solved!
Though I don’t agree — see below — I understand why the majority held their noses and approved Judge Ozaki’s dual appointment. If she followed through on her threat to resign if they did not, the Court would have to start Ntaganda’s trial over: Art. 74(1) of the Rome Statute states unequivocally that “[a]ll the judges of the Trial Chamber shall be present at each stage of the trial and throughout their deliberations.” The only exception is where “one or more alternate judges [were] present at each stage of the trial” — which was not the case in Ntaganda.
And then, of course, there is Judge Ozaki’s threat to resign unless she got her way. That was simply overt blackmail, taking advantage of the fact that she knew her colleagues would not want to restart a trial that began more than three years ago.
I find it baffling that neither the majority nor the minority even reference the Code of Judicial Ethics — especially the majority, who specifically noted that the Rome Statute does not contain an equivalent to Art. 16(1) of the ICJ Statute, which provides that “[n]o member of the Court may exercise any political or administrative function.” The only difference between the Code of Judicial Ethics and the ICJ Statute is that the former is not legally binding. But that is a thin reed indeed, given that Art. 11 of the Code makes clear that its provisions “serve as guidelines on the essential ethical standards required of judges in the performance of their duties.” How can a judge be seen as conscientious within the meaning of Art. 45 if she is willing to so openly flout a central restriction of the Code?
I realise how damaging it would be to the ICC if it had to retry Ntaganda, especially in light of recent events in Bemba and Gbagbo. I am genuinely sympathetic to the position the majority found themselves in. But the Court cannot permit one of its judges to threaten her way into being permitted to accept a professional position that the Code of Judicial Ethics specifically prohibits. The all-too-public spat between the judges over who would preside over the Gbagbo appeal is bad enough. This is simply a bridge too far.
Judge Ozaki must resign. Or the Assembly of States Parties must initiate proceedings under Art. 46 of the Rome Statute to remove her from office.
Without any previous judicial experience let alone not even a lawyer, how did she become an international judge in the first place?
Japan pays more than 25% of the Court’s budget. It could have nominated an animatronic bear and still won a judicial election.

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