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2. WHICH DATA WILL BE COLLECTED, PROCESSED OR UTILIZED?
When you access our website, our servers automatically collect information of a general nature, especially for the purposes of connection setup, functionality and system security. This includes the type of browser used, the operating system used, the domain name of the Internet service provider, the connection data of the computer used (IP address), the website from which you visit us (referrer URL), the pages you visit on our website and the date and duration of the visit. Conclusions from this data on certain persons are not possible for us due to a pseudonymization.
If you contact us via a contact form, personal data will be collected. Which data are collected in each case can be found in the contact form. The data will be stored for the purpose of processing your request. Mandatory information is indicated by an asterisk (*). All other details are optional. We delete the data we recieved from the contact form after the storage is no longer required, or restrict the processing if there are statutory retention requirements. Legal basis for processing your personal information is Art. 6 para. 1 lit. b) GDPR when it comes to contacting us in the context of a contract. Incidentally, it is our legitimate interest to answer your inquiries, so in this case Art. 6 para. 1 lit. f) GDPR is the legal basis.
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We collect and process personal data if you provide us with this data when executing a contract or opening a customer account. The legal basis is Art. 6 para. 1 lit. b) GDPR. Which data is collected can be taken from the respective input forms. The deletion of your customer account is possible at any time and can be done by sending a message to the contact address of the responsible person. We store and use the data provided by you for contract processing between you and us. After complete processing of the contract or deletion of your customer account, your data will be blocked in consideration of tax and commercial retention periods and deleted after expiry of these periods, unless you have expressly consented to further use of your data or a legally permitted further use of data has been reserved by our site, about which we inform you in this data protection policy.
You can place your order without registering a customer account. Here too, personal data are collected and processed in accordance with Art. 6 para. 1 lit. b GDPR. Which data are collected and processed can be seen from the respective input forms. We store and use the data provided by you within the scope of the guest order for contract processing. After complete processing of the contract your data will be blocked in consideration of tax and commercial retention periods and deleted after expiry of these periods, unless you have expressly consented to further use of your data or a legally permitted further use of data has been reserved by us, about which we inform you within the scope of this data protection policy.
The personal data collected by us will be passed on to the transport company commissioned with the delivery (e.g. DHL-Deutsche Post AG, GLS-General Logistics Systems Germany GmbH & Co. OHG) within the scope of contract processing, insofar as this is necessary for the delivery of the goods. For the purpose of arranging the delivery date for forwarding goods, we will also provide the carrier with your telephone number. The legal basis for the transfer of the data is Art. 6 para. 1 lit. b) and f) GDPR.
From time to time you have the opportunity to take part in competitions on our website. Within the scope of these competitions, personal data (e-mail address, name, address and, if applicable, other data necessary for the competition) may also be collected and stored for the purpose of handling the competition. The personal information you provide to us will only be used for the purposes of the competition (e.g. to determine the prize, notify you of the prize and hand over the prize). Within the scope of the competition, we will inform the participant specifically about data processing on the occasion of the concrete competition. After the end of our competitions the data of the participants will be deleted.
Personal data will be deleted or blocked as soon as the purpose of storage ceases to apply or you request deletion. The data will also be deleted if a storage period prescribed by the aforementioned standard expires, unless there is a need for further storage of the data for the conclusion or fulfilment of a contract or you have given your consent to this.
Cookies are used to make the use of the websites and the preferences of website visitors attractive. For example, this saves your entries for the selection of a language. Cookies are text files that are created on your hard drive to enable the identification of the browser when you visit the website again. You can prevent cookies from being stored on your hard drive by making the appropriate browser settings. Cookies that have already been set can be deleted at any time. For information on how to delete cookies or prevent them from being saved, please refer to the respective browser instructions. If you do not accept cookies, this can lead to an impairment of the use of our Internet offer. The legal basis for the processing of cookies is Art. 6 para. 1 lit. f) GDPR.
We protect our website and other systems by technical and organizational measures against loss, destruction, access, modification or distribution of your data by unauthorized persons. Depending on the browser used, data is transmitted using 128-bit to 256-bit SSL encryption. Despite regular controls and constant improvement of our safety measures, complete protection against all dangers is not possible.
Our website operates in collaboration with the AdWords Remarketing in order to advertise on Google and its third-party bodies. The provider of AdWords Remarketing is Google LLC., with headquarter in 1600 Amphitheatre Parkway, Mountain View, CA 94043, USA (“Google”). Implementation of cookies in one’s browser enables to automatically collect an interest-based data. The data creates a user ID based on the pages that one has previously visited and therefore enables more personalized advertising. The aim of the process is advertising optimization and more customer-adjusted content provision within the meaning of Art. 6 para. 1 lit. f) GDPR. Any further data processing will be allowed only after one’s explicit consent to one’s web browser’s data usage. Google will use the information provided by the browser and one’s Google Account to furthermore personalize the advertising used on visited websites. In this case, when one will log in to one’s Google Account when visiting our website, Google will send the allowed data to Google Analytics in order to further define the audiences visiting our website. One is allowed to disable the settings of cookies by installing a browser plug-in available on the following link:https://www.google.com/settings/ads/onweb/.
The data controller collaborates with Google Adsense, which is an online service providing a third-party advertising intermediation. Google AdSense uses an algorithm that selects advertisements displayed on third-party websites. The interest-based retargeting of advertising is specified by the prior collected information of user’s website activity. The company operating Google AdSense components is Alphabet Inc., with headquarters in 1600 Amphitheatre Pkwy, Mountain View, CA 94043-1351, USA. The aim of Google AdSense components is to integrate the advertising on our website. Google AdSense implements cookies on one’s Internet Browser in order to later carry out an analysis of users’ activities on our website. The functioning of cookies has been explained in detail in the previous points of the policy. Agreement on cookies policy allows the information about one’s activity on our website to be sent to Google AdSense in order to improve our online advertising strategies. As a part of the process, Alphabet Inc. collects some of user’s information, such as the IP address, which is crucial to settle the origins of customers’ visits and therefore the commission agreements. Every person visiting our website has the right to deactivate the cookies on one’s browser through the browser’s settings. Such settings of the browser will prevent Alphabet Inc. from any data collection. In addition to this, cookie that has previously been agreed on may be deleted from the Alphabet Inc. data base at any time by specific browser settings.
This website operates with Google Analytics, which is an internet analysis service provided by Google Inc. (www.google.de). Google Analytics uses the so-called cookies that collect data about one’s activity on the website and therefore allow the analysis of Internet users‘ activities on our website.
The information generated by the cookies is transmitted to and stored by the Google server in the USA. In case of the IP anonymization on user’s website, the IP address will be beforehand shortened by Google following the Member of States of the EU or other responsible Parties within the European Economic Area Agreement .
In exceptional cases the IP address may be sent to the Google server in the USA and shortened there. On behalf of this website’s operator, Google will use the collected information to evaluate the use of the website. The website’s operators will then be provided by Google with the report on related to our website users’ activities that will help us provide the Internet users with more personalized website services.
13.1 WHO ARE OUR SUPPLIERS?
We are currently using Facebook as our social media plug-in. We use the so-called two-click solution. In other words, when you visit our website, no personal data is initially provided to our plug-in providers. On the bottom of our website you can find the logo of the plug-in provider, which gives you an opportunity to move to the provider’s website with only one click. Only when you move to the plug-in provider’s website, the information about your activity is passed to the provider’s data base. The data collected by the plug-in are: the IP address, date and time of access, time zone difference to the Greenwich Mean Time (GMT), requested page, HTTP status code, amount of data transferred, used browser, the operating system and its interface, language and version of the browser. In case of Facebook, the IP address will be immediately anonymized. Any personal data collected by the plug-in providers will be transmitted to their data bases (in case of US providers, the data will be stored in USA). For safety reasons, we recommend you to delete all cookies before clicking on the providers’ plug-ins.
We have no influence on the data collected and data processing operations, nor are we aware of the full extent of data collection, the purposes of processing, the storage periods. We also have no information on the deletion of the data collected by the plug-in provider.
The plug-in providers collect and store data connected with users‘ profiles and their activities on websites for marketing and advertising purposes. Evaluations of Internet users’ activities are carried out, even if the person has not been logged in to any social media platform. Every Internet user has a right to disagree with the data collection. The plug-ins offer Internet users to interact with other users on social media platforms and give us a chance to improve our website and offered services. The plus-ins operate in compliance with Art. 6 Par. 1(f) of GDPR.
The data ransfer takes place regardless of whether you have an account on the social media platform, or not. If you are logged in, the data collected will be assigned to the existing account. For complete safety, we advise you to log out of every social media account regularly in order to avoid assigning your personal profile to any social media plug-ins.
More information on the purpose and use of the data collected will be provided below. There are also further information on your rights and data protection privacy.
Facebook Inc., 1601 S California Ave, Palo Alto, California 94304, USA;http://www.facebook.com/policy.php; more information:http://www.facebook.com/help/186325668085084,http://www.facebook.com/about/privacy/your-info-on-other#applications as well ashttp://www.facebook.com/about/privacy/your-info#everyoneinfo. Facebook operates in accordance with the EU-US-Privacy-Shield,https://www.privacyshield.gov/EU-US-Framework.
Our website also contains AddThis plug-ins that allow you to share an interesting content with other social media users. The legal basis for the use of the plug-ins is Art. 6 para. 1 sentence 1 lit. f) GDPR. The data collected by the plug-in are: the IP address, date and time of access, time zone difference to the Greenwich Mean Time (GMT), requested page, HTTP status code, amount of data transferred, used browser,the operating system and its interface, language and version of the browser. In case of Facebook, the IP address will be immediately anonymized. Any personal data collected by the pug-in providers will be transmitted to their data bases (in case of US providers, the data will be stored in USA). We have no influence on the data collected or processed by the plug-in providers and we are not aware entirely of the purposes or the extent of the data collected. Generally, the data are stored and used for marketing and advertising purposes. You have the right not to agree on the data collection and in order to avoid any further data collection, you should contact the plug-in provider personally. You can also deactivate the cookies on your browser by the use of the link:http://www.addthis.com/privacy/opt-out. For more information on the purpose of data collection please contact the following provider: AddThis LLC, 1595 Spring Hill Road, Sweet 300, Vienna, VA 22182 , USA,www.addthis.com/privacy.
The website is integrated with the web analysis tool econda in accordance to the Art. 1 Par. 1 (f) of the GDPR. Web analysis services provided by econda include collection and analysis of data regarding Internet users’ activities on our website. Econda collects such information as the approximate time spent by the users on the website and its subpages. The main aim of the analysis is to optimize and improve our website and define the efficiency of our advertising strategies.
The entity in charge of econda services is econda GmbH with headquarter in Eisenlohrstr. 43, 76135 Karlsruhe, Germany. Econda uses the cookie technology that has been explained above. Each time you visit our website, your web browser sends information about your activity on the website to econda. The obtained information is used mainly for marketing optimization purposes. As a part of the technical process, econda receives information that will further be used to create a general profile of the website’s users. The profile will be later used to analyze the behavior of the users who have accessed the website. The data will only be collected after an explicit consent of the subject and will be used to improve and optimize the website. The data will in no way identify the subject’s personal information.
Every user of the website may decide not to share any information collected by cookies. As explained above, these changes may be introduced through Internet browser settings at any time. Deactivating cookies will remove already collected information from the econda data base and prevent econda from collecting any further data. Every website user may decide not to agree on the data collection related to the use of the website. To prevent any information processing, click on the linkLink. The information about cookie deactivation will be transferred to the econda data base.
We also collect and process personal data from applicants for the purpose of handling our application process. Processing can also be carried out electronically. This is always the case if the applicant submits application documents to us electronically, i.e. by e-mail or via a web form implemented on our website. If we conclude an employment contract with an applicant, the data transmitted will be stored for the purpose of processing the employment relationship in compliance with the statutory provisions. However, if no employment contract is concluded between us and the applicant, the application documents will be deleted four months after the decision of rejection has been announced, provided that no other legitimate interests of the person responsible stand in the way of deletion. Another legitimate interest in this sense is, for example, a burden of proof in proceedings under the General Act on Equal Treatment. We would like to evaluate all applicants only on the basis of their qualifications and therefore ask that information on racial and ethnic origin, political opinions, religious or ideological beliefs or any trade union membership, genetic data, biometric data to clearly identify a natural person, health data or data on sexual life or sexual orientation in the application should be avoided if possible.
Our website uses software technology from epoq internet services GmbH, Am Rüppurer Schloß 1, 76199 Karlsruhe ("epoq"). With epoq's software technology, it is possible for us to display targeted and individual product recommendations on the start, product detail, shopping cart or category page. Product recommendations are displayed based on a cookie-based analysis of previous and current click and purchase behaviour, but no personal data is stored. In these cases, a cookie is stored on your computer or mobile device to collect pseudonymised data about your interests and thus adapt the advertising individually to the stored information. You will be shown advertisements that most likely correspond to your product and information interests. If the information collected is personal, it is processed in accordance with Art. 6 Para. 1 letter f) GDPR on the basis of our legitimate interest in the insertion of personalised advertising and market research. You can permanently deactivate the setting of cookies for advertising preferences by setting your Internet browser so that cookies can no longer be stored on your computer in the future or cookies that have already been stored are deleted. However, deactivating all cookies may mean that some functions on our Internet pages can no longer be executed.
any available information on the origin of the data if the personal data are not collected from the data subject.
the data subject has objected to processing pursuant to 21 Abs. 1 GDPR (1) pending the verification whether the legitimate grounds of the controller override those of the data subject.
You revoke your consent on which the processing was based pursuant to Art. 6 para. 1 lit. a) or Art. 9 para. 2 lit. a) GDPR, and there is no other legal basis for the processing.
In exercising this right, you also have the right to request that the personal data concerning you be transferred directly from one data controller to another data controller, insofar as this is technically feasible. The freedom and rights of other persons must not be affected by this.
You have the right to object at any time, for reasons arising from your particular situation, to the processing of personal data concerning you under Article 6(1)(e) or (f) GDPR; this also applies to profiling based on these provisions. The data controller no longer processes the personal data concerning you, unless he can prove compelling reasons worthy of protection for the processing, which outweigh your interests, rights and freedoms, or the processing serves to assert, exercise or defend legal claims. If you object to the processing for direct marketing purposes, the personal data concerning you will no longer be processed for these purposes. You have the possibility to exercise your right of objection in connection with the use of Information Society services by means of automated procedures using technical specifications, notwithstanding Directive 2002/58/EC.
However, these decisions may not be based on special categories of personal data pursuant to Art. 9 para. 1 GDPR, unless Art. 9 para. 2 lit. a) or g) GDPR applies and appropriate measures have been taken to protect your rights and freedoms and your legitimate interests.

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Appeal from the United States District Court for the Eastern District of North Carolina, at Greenville. Malcolm J. Howard, Senior District Judge. (4:95-cr-00041-H-5).
Dushawn Levert Gardner, Appellant Pro Se. Steve R. Matheny, Assistant United States Attorney, Raleigh, North Carolina, for Appellee.
Before MOTZ, TRAXLER, and KING, Circuit Judges.
Dushawn Levert Gardner seeks to appeal the district court's order denying his Fed.R.Civ.P. 60(b) motion for reconsideration of the district court's order denying relief on his 28 U.S.C. § 2255 (2006) motion. The order is not appealable unless a circuit justice or judge issues a certificate of appealability. 28 U.S.C. § 2253(c)(1) (2006); Reid v. Angelone, 369 F.3d 363, 369 (4th Cir. 2004). A certificate of appeal-ability will not issue absent "a substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2) (2006). A prisoner satisfies this standard by demonstrating that reasonable jurists would find that any assessment of the constitutional claims by the district court is debatable or wrong and that any dispositive procedural ruling by the district court is likewise debatable. Miller-El v. Cockrell, 537 U.S. 322, 336-38, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003); Slack v. McDaniel, 529 U.S. 473, 484, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000); Rose v. Lee, 252 F.3d 676, 683-84 (4th Cir. 2001). We have independently reviewed the record and conclude that Gardner has not made the requisite showing. Accordingly, we deny a certificate of appealability and dismiss the appeal. We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.


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by Robin Paul Malloy (ed). Burlington, VT: Ashgate, 2008. 230pp. Hardback. $99.95/£55.00. ISBN: 9780754672111.
Reviewed by Andrew P. Morriss, College of Law, University of Illinois, Urbana-Champaign. Email: morriss [at] illinois.edu.
This volume provides eight chapters addressing some of the important issues raised by the controversy over the Supreme Court’s decision in KELO v. CITY OF NEW LONDON. As is inevitable in such a collection, the chapters are uneven and different audiences will find different chapters more or less useful. In addition to the substantive chapters, the book includes the KELO opinions, a table of cases and a consolidated bibliography. The inclusion of the KELO opinions would be useful mostly if the book were used as the basis for a seminar on eminent domain. However, the book’s high price and relatively short length (just 164 pages are devoted to the substantive chapters) make it less likely to be adopted for such purposes than if it were priced less expensively. This is unfortunate, as the book could readily serve as the core readings for such a course.
The first chapter, by Syracuse University law professor Robin Paul Malloy and University of Georgia law professor James Charles Smith, is a brief overview of the issues raised by the use of eminent domain to promote development and how different legal systems attempt to cope with them. The framework developed is then applied to the majority and dissenting opinions in KELO. Like most of the chapters in the book, this one has a strong point of view on the merits in KELO, arguing that the widespread criticism of the majority opinion was unwarranted. Malloy and Smith are important figures in property law, and learning their views on the case is useful. Unfortunately, their point of view is shared by almost all of the book’s authors, providing a less than complete picture of the legal academy’s assessment of KELO and its context. In addition, their account of the overall context of eminent domain’s use for economic development is one that is hotly contested in the academy, and including more material by critics of the process would have made the book a more useful teaching tool. The chapter is also too short, leaving the reader with a desire to hear more about what Malloy and Smith think about the issues they raise.
In the second chapter, University of Florida law professor Michael Allan Wolf compares the media’s responses to KELO and to the two other key post-World War II eminent domain cases, BERMAN v. PARKER and HAWAII HOUSING AUTHORITY v. MIDKIFF. The chapter performs a useful service by collecting media accounts of the three decisions from a wide range of sources. To explain why BERMAN and MIDKIFF produced almost no public controversy or media attention while KELO produced a firestorm, Wolf provides a list of five key differences, [*235] ranging from the influence of the Reagan years on property rights thinking to the rise of conservative talk radio. The chapter is less useful than it could have been, however, because Wolf lets his distaste for conservative points of view on property rights color his analysis. He also fails to give sufficient attention to the role of the Institute for Justice, a Washington, D.C. libertarian public interest law firm that not only represented Susette Kelo but also spearheaded the post-decision campaign for state laws restricting the use of eminent domain. As with the first chapter, Wolf’s essay would have been better if it was balanced by an analysis of the media from an opposing view point. (Readers seeking such an account should read Nadler, Diamond, and Patton (2008), and Somin (2009).
Chapter three, by George Mason University law professor Eric Claeys, examines the natural law maxim that “a man’s home is his castle” in light of the KELO decision, finding that the aphorism is more complex than is often acknowledged, providing protection not just for a homeowner faced with a proposed economic development eminent domain action, but also for a developer, business, or low income tenant resisting middle class efforts to zone them out. He concludes by noting that “the castle metaphor challenges home owners whether they are prepared to take the bitter with the sweet” (p.55). I have long been a fan of Claeys’ work on property rights precisely because he finds such interesting questions lurking beneath the surface, and this chapter is among the most interesting in the book because it challenges the easy reading of the issues posed by eminent domain as solely between the individual homeowner and the state.
One of the puzzles in KELO is how Justice Sandra Day O’Connor moved from author of the majority opinion in MIDKIFF in 1984 to the author of a stinging dissent in KELO in 2005, providing one of the most quoted lines from the KELO opinions that “[n]othing is to prevent the State from replacing any Motel 6 with a Ritz-Carleton, any home with a shopping mall, or any farm with a factory.” In chapter four, Widener law professor Ben Barros examines the Supreme Court’s conference notes from MIDKIFF and BERMAN to determine whether Justice O’Connor’s effort to explain away this seeming inconsistency is successful. He concludes that her account of MIDKIFF is not supported by the conference notes and that the stronger position would have been for her to argue that BERMAN and MIDKIFF were incorrect and should be overruled. This is a fabulous use of the historical material, and this chapter ought to be required reading for any student, professor, or lawyer contemplating the BERMAN-MIDKIFF-KELO trilogy and scratching his or her head over O’Connor’s changing position.
Chapter five, authored by University of Durham law professor Tom Allen, offers a comparative view, describing the legal framework for eminent domain in Britain. The chapter’s account of how the differences in institutions produce totally different public debates is an excellent example of the impact of the law on framing policy questions. Perhaps most crucial is the difference in how local governments raise funds. British localities are not dependent on [*236] local real estate taxes, thus losing an important incentive to use eminent domain to lure new tax payers to their jurisdictions. And the British state exercises considerable control over local governments’ ability to compete for economic development, effectively cartelizing what is a highly competitive marketplace in the United States. The chapter develops these points in a thorough examination of several development projects. Any course examining economic development and eminent domain would benefit from including this chapter among its readings.
In the sixth chapter, Seton Hall law professor Marc Poirer puts KELO into the context of another 2005 Takings Clause case, SAN REMO HOTEL v. CITY AND COUNTY OF SAN FRANCISCO. Poirer, an important voice in property law on the left, sees these two cases as part of the Court’s overall deference on land use issues to “state and local fora and processes” and away from “inflexible federal standards” applied by the federal courts. Poirer mounts a more articulate policy defense of the KELO outcome than does Justice Stevens’ majority opinion. However, Poirer’s reading of the contours of the dispute in KELO is hardly the only possible account of the transaction at issue in that case. In particular, there is considerable evidence of rent-seeking in which a large corporation and local political class used the political process to expropriate property for their own benefit. Indeed, the vagueness of the planning process in KELO, which showed Ms. Kelo’s home being used only for “park support” purposes, raised important questions about the fairness and purpose of the local government’s actions. Here the weakness of the book is not internal to the chapter – Poirer presents an interesting and thoughtful defense of KELO – but that the chapter is not presented within a continuum of interpretations.
Chapter seven, by Seton Hall law professor Rachel Godsil and law student David Simunovich, explores the issue of just compensation for a taking in the context of several proposed reforms designed to elicit truthful reporting of property owners’ self-valuations. These are important issues, and the chapter provides a careful examination of many of the current policy options. It does not discuss the post- KELO state law reforms designed to limit eminent domain abuse by increasing compensation, a curious omission from the book as a whole.
The final chapter, by University of North Carolina law professor Carole Necole Brown, places eminent domain in the context of post-natural disaster development. Unfortunately, the chapter’s valiant attempts to do this within the context of KELO, so as to fit within the book’s overall themes are distracting, as KELO has no direct relevance to the post-natural disaster context. The chapter also examines Michigan’s back-and-forth on state constitutional issues relating to economic development eminent domain in POLETOWN NEIGHBORHOOD COUNCIL v. CITY OF DETROIT and COUNTY OF WAYNE v. HATHCOCK. As with KELO, the fit between the issues in the two Michigan cases and the post-natural disaster context is rough at best, making it difficult to connect the legal issues in the cases to the policy questions raised in [*237] the chapter. The reader is left wishing that Brown had been told to forget KELO and the Michigan opinions and develop her analysis of the post-natural disaster context as a distinct area of Takings jurisprudence.
Overall, this book presents a series of interesting analyses of issues (mostly) arising out of KELO, written by a largely left-leaning group of law professors. While individual chapters would be extremely useful in seminars on takings, community development, or property, the collection as a whole suffers from the lack of multiple view points on issues where there are unrepresented, well-articulated positions that would add valuable context. Moreover, considerable time is devoted to summarizing KELO repeatedly – an initial chapter providing a broad overview of the case could have eliminated considerable repetition in what is already a slender volume. The publisher’s unfortunate pricing decision, particularly for such a slim collection, also hinders its potential to serve as a course text. Despite these complaints, there is considerable value in this too short volume, and anyone working on scholarship on takings and economic development, KELO, or related topics will want to consult it.
Nadler, Janice, Shari Seidman Diamond, and Matthew M. Patton. 2008. “Government Takings of Private Property: Kelo and the Perfect Storm.” In PUBLIC OPINION AND CONSTITUTIONAL CONTROVERSY. Nathaniel Persily, Jack Citrin, and Patrick Egan (eds). New York: Oxford University Press.
Somin, Ilya. 2009 (forthcoming). “The Limits of Backlash: Assessing the Political Response to Kelo.” 17 SUPREME COURT ECONOMIC REVIEW.
COUNTY OF WAYNE v. HATHCOCK, 471 Mich. 445 (2004).
POLETOWN NEIGHBORHOOD COUNCIL v. CITY OF DETROIT, 410 Mich. 616 (1981).
SAN REMO HOTEL v. CITY AND COUNTY OF SAN FRANCISCO, 545 U.S. 323 (2005).
© Copyright 2009 by the author, Andrew P. Morriss.

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UNITED STATES OF AMERICA, Plaintiff, v. DAVID NOSAL, Defendant.
Defendant David Nosal was found guilty of, inter alia, violating the Computer Fraud and Abuse Act ("CFAA"). This Court originally sentenced Mr. Nosal to one year and one day in prison, three years of supervised release, a $60,000 fine, a $600 special assessment, and approximately $828,000 in restitution to Korn/Ferry International ("KFI"), the victim of the crimes. The restitution award had three components: (1) $27,400 represented KFI's costs incurred in attempting to ascertain the nature and scope of Mr. Nosal's misconduct; (2) approximately $247,700 represented the value of KFI's employee time spent participating in and assisting the government's investigation and prosecution; and (3) approximately $595,800 represented the attorney's fees incurred by KFI in aid of the investigation or prosecution of the offense. With respect to (3), the government had asked for a significantly higher amount - approximately $964,900 - but the Court reduced the fee component "for invoices 'not demonstrably reasonably necessary to the government's investigation and prosecution,' for 'staffing inefficiencies,' and for 'time spent on "press" and file/order reviewing charges.'" United States v. Nosal, 844 F.3d 1024, 1046 (9th Cir. 2016).
Mr. Nosal appealed the conviction and sentence to the Ninth Circuit. In December 2016, the Ninth Circuit largely affirmed this Court's rulings but remanded with respect to the restitution award - more specifically, component (3) above related to attorney's fees. On remand, the government reduced its request to approximately $458,000 while Mr. Nosal argued that restitution for fees should be $0 but, at the very least, no more than approximately $55,000. The Court held a hearing but did not decide the issue at that time, instead giving the parties additional guidance and then directing them to meet and confer. The parties have now met and conferred and their dispute has narrowed. The government now asks for an award of approximately $183,000 (covering an eight-year period, from July 2005 to January 2014); Mr. Nosal asks that the award be limited to approximately $60,000. The parties have provided a spreadsheet which shows, inter alia, the attorney time entries, where the government seeks compensation, and where Mr. Nosal objects.
Having considered the Ninth Circuit's remand order, the parties' post-remand briefs, the spreadsheet, the oral argument of counsel, and all other evidence of record, the Court hereby finds that the proper amount for restitutionary attorney's fees is $163,766.18.
Restitution in the instant case is governed by the Mandatory Victim Restitution Act ("MVRA"). See 18 U.S.C. § 3663A. The Act provides in relevant part that a "court shall order, in addition to . . . any other penalty authorized by law, that the defendant make restitution to the victim of the offense." Id. § 3663A(a)(1). Victim is defined as one "directly and proximately harmed as a result of the commission of [the] offense." Id. § 3663A(a)(2). "The order of restitution shall require that [the] defendant . . . reimburse the victim for lost income and necessary child care, transportation, and other expenses incurred during participation in the investigation or prosecution of the offense or attendance at proceedings related to the offense." Id. § 3663A(b)(4). "Any dispute as to the proper amount or type of restitution shall be resolved by the court by the preponderance of the evidence." Id. § 3664(e).
• "[T]he fees must be the direct and foreseeable result of the defendant's conduct." Nosal, 844 F.3d at 1047.
• It must have been "'reasonably necessary for [the victim] to incur attorneys' . . . fees to participate in the investigation or prosecution of the offense.'" Id.
• The fees must be reasonable - e.g., there should be no award for "duplicate effort" or "time that is disproportionate to the task." Id. at 1048.
• The fees must reflect participation in the investigation or prosecution of the offense - thus, the attorneys' work is not a substitute for the work of the prosecutor and it does not duplicate the work of the prosecutor. See id. (regarding the latter, referring to a "shadow prosecutor").
[e]ven after reduction [i.e., by this Court], the total amount of fees awarded is striking, particularly given that the trial ultimately involved only three discrete incidents of criminal behavior. Although resulting in multiple counts, at bottom the events were temporally circumscribed and limited in scope. We note that a highly disproportionate percentage of the fees arose from responding to requests and inquiries related to sentencing, damages, and restitution. The reasonableness of the fees needs to be reexamined to consider (i) whether the sizeable fee related to restitution matters was reasonable; (ii) whether there was unnecessary duplication of tasks between [KFI] staff and its attorneys since the [district] court awarded a substantial sum [almost $250,000] for the time of [KFI] employees; and (iii) whether the outside attorneys were substituting or duplicating the work of the prosecutors, rather than serving in a participatory capacity.
(1) Time spent on responding to government subpoenas.
(2) Time spent following up on issues identified by the USAO or FBI.
(3) Time spent in conferences with Ms. Briski (a KFI employee).
(4) Time spent attending trial.
(5) Time spent on post-trial matters such as loss and restitution.
Mr. Nosal challenges attorney time spent on responding to government subpoenas on multiple grounds: (1) the formality of a subpoena was unnecessary; (2) KFI did not need the assistance of the O'Melveny law firm ("OMM") to respond to the subpoenas; (3) the time spent was excessive; and (4) at least some of the time was not spent on advancing or aiding the investigation/prosecution but rather was spent on protecting KFI's interests.
Most of these arguments have little or no merit. For example, whether the formality of a subpoena was necessary was not a matter within KFI or its attorneys' control. Even if KFI was willing to cooperate with the government, it was the government's decision as to whether a subpoena was necessary, and the government reasonably issued subpoenas if only to establish a formal record of what information was being requested from KFI.
Of course, even if no subpoenas were issued and the government simply made informal requests for information, KFI would still have had to spend time looking for the information requested.
As for the contention that KFI did not need attorney assistance in responding to the government's requests, the question is whether attorney assistance was reasonably necessary. Given that KFI was being asked by the government to assist with a criminal matter, it was reasonably necessary for KFI to hire an attorney. Indeed, the Ninth Circuit has indicated that hiring an attorney to help respond to a government subpoena is reasonably necessary. See United States v. Gordon, 393 F.3d 1044, 1057 (9th Cir. 2014) (holding that "[t]he record demonstrates that Cisco's investigation costs were incurred in response to five grand jury subpoenas and a number of government requests requiring Cisco to analyze vast amounts of documentation and electronic information"; adding that "[defendant] purposefully covered his tracks as he concealed his numerous acts of wrongdoing from Cisco over a period of years" and, "[a]s the victim, Cisco cannot be faulted for making a concerted effort to pick up his trail and identify all the assets he took amid everything he worked on").
Mr. Nosal's assertion that the time spent on responding to subpoenas was excessive fares no better. Mr. Nosal seems to be complaining with respect to two subpoenas that were issued - one issued in or about late 2009 and the other in or about April 2013.
For the 2009 subpoena, it appears that OMM spent time on responding during the period November 2009-January 2010. See Spreadsheet, pp. 17-22. Mr. Nosal claims that the fees incurred during this time were about $34,000, but the Court calculates a slightly smaller amount - around $30,000 (taking into account the fact that not all of the time entries had to do with the subpoena). More important, the Court calculates the hours spent on the subpoena as about 45 hours total. As a facial matter, it is not clear why this number of hours is excessive. Moreover, Mr. Nosal has not provided any evidence indicating that the subpoena was very narrow in scope, which might suggest that the job could have been done in fewer than 45 hours.
For the April 2013 subpoena, see Spreadsheet, pp. 35-36, there is likewise no indication that the time spent in responding was excessive. OMM incurred about $5,000 in fees, representing approximately 7 hours of work.
While the Court does not find most of Mr. Nosal's arguments persuasive, there is one that has some merit. More specifically, Mr. Nosal points out that the predicate for restitution under the MVRA is generally characterized as that which aids or advances the investigation/prosecution - as opposed to, e.g., protecting the victim's self-interest. Compare United States v. Cuti, 778 F.3d 83, 93 (2d Cir. 2014) (stating that "victim expenses that are recoverable as restitution . . . are expenses the victim was required to incur to advance the investigation or prosecution of the offense") (internal quotation marks and emphasis omitted); United States v. Waknine, 543 F.3d 546, 559 (9th Cir. 2008) (stating that, "[o]n remand, the district court may only award restitution of travel expenses and investigation costs, including attorneys' fees, if the government provides sufficiently detailed evidence to demonstrate by a preponderance of the evidence that these costs were incurred by Hadad and Keyulian in aid of Waknine's investigation or prosecution, and that such expenses and costs were reasonably necessary"),with id. (noting that "there are differences between the investigation costs incurred by Cisco in Gordon and the investigation costs incurred by the victims here" in that, "[u]nlike the attorneys' fees in Gordon, which were incurred exclusively from the document review required to track the fraud, the attorneys' fees incurred by Hadad and Keyulian were in part, if not entirely, incurred to protect themselves from prosecution"); see also Carpenter, 2017 U.S. Dist. LEXIS 100969, at *12 (stating that, "[w]hile Bunge had the right to act to protect its own interests, the U.S. Attorney has not shown that Thompson Coburn's efforts were necessary expenses incurred to advance the investigation or prosecution or were not largely duplicative of the U.S. Attorney's efforts"). According to Mr. Nosal, here, the time spent on responding to the subpoenas reflected not just work that aided or advanced the investigation/prosecution but also work that was done to protect KFI's self-interest.
• 10/24/2006: Review and analyze documents in response to issues raised by C. Sadlowski [FBI]; prepare summary of same.
• 01/09/2007: Conference with K. Waldinger [AUSA] and C. Sadlowski [FBI] . . . ; Follow up on issues raised by K. Waldinger and C. Sadlowski including review of documents.
• 03/07/2007: . . . Review/analyze documents in conjunction with requests for information from C. Sadlowski [FBI]; . . . Multiple conferences with C. Sadlowski regarding investigation and additional information needed by FBI from Korn/Ferry.
• 03/08/2007: Review/analyze documents in response to request from C. Sadlowski [FBI]; Review/analyze and revise documents from M. Briski [KFI] for C. Sadlowski.
• 04/02/2007: . . . Review/analyze documents and emails as a follow-up to conference with C. Sadlowski [FBI].
• 07/18/2007: Review/analyze documents to respond to questions raised by C. Sadlowski [FBI].
All of the above entries reflect that OMM spent time doing work in response to issues raised by the USAO or FBI. Mr. Nosal argues that these entries should not count toward the restitutionary award for two main reasons: the entries are vague and thus it is not clear that (1) the time spent was necessary for the investigation/prosecution and/or (2) the time was not substitute prosecutorial work.
In this respect, the time entries are like the subpoena time entries.
While the Court is not entirely unsympathetic to Mr. Nosal's arguments, it rejects them. It is more likely than not that the time spent was necessary given that KFI/OMM was doing work in response to the government's prompting. Thus, even though the precise subject matters of the "issues raised" by the USAO or FBI were not identified in the time entries, they may still fairly be deemed necessary to the investigation since that work was initiated by the government. At the hearing, Mr. Nosal suggested that the Court should give little weight to the fact of government prompting. But the government is in the best position to determine what is needed for the investigation/prosecution. Moreover, contrary to what Mr. Nosal argues, the Ninth Circuit remand order does not support him on this point. In its remand order, the Ninth Circuit simply expressed a concern that "a highly disproportionate percentage of the fees arose from responding to requests and inquiries related to sentencing, damages, and restitution." Nosal, 844 F.3d at 1048. This was merely a concern about the size of the fee, i.e., whether it was excessive in context. See id. (directing this Court to consider "whether the sizeable fee related to restitution matters was reasonable"). This was not a commentary about whether work was necessary for the investigation/prosecution. To the extent Mr. Nosal further argues that it was not reasonably necessary for KFI to incur fees to participate in the investigation/prosecution in this way, the Court does not agree. As stated above, it was reasonably necessary for KFI to seek attorney assistance given that it was being asked by the government to help with a criminal matter.
The Court also notes that, if the prosecutors had worked directly with KFI employees, that would more than likely have added on to the time the KFI employees spent on participation in the investigation/prosecution.
• 10/24/2006: . . . conferences with M. Briski [KFI] regarding same [i.e., in response to issues raised by C. Sadlowski (FBI)].
• 03/05/2008: Conference with M. Briski [KFI] regarding issues raised by K. Waldinger [ASUA].
• 06/24/2008: . . . Conference with M. Briski [KFI] regarding United States attorney's office subpoena.
Mr. Nosal challenges these time entries on two main grounds: (1) OMM was doing substitute prosecutorial work here (i.e., the prosecutor could have worked with Ms. Briski directly) and (2) KFI has already been compensated for time spent by Ms. Briski (i.e., as suggested by the Ninth Circuit's remand order, this was an unnecessary duplication of tasks between KFI staff and its attorneys).
Mr. Nosal argues that all time spent by an OMM attorney (Ms. Bunzel) attending trial should not be included in the restitutionary fee award. In evaluating this challenge, the Court begins with the language of the MVRA. The relevant statute provides: "The order of restitution shall require that [the] defendant . . . reimburse the victim for lost income and necessary child care, transportation, and other expenses incurred during participation in the investigation or prosecution of the offense or attendance at proceedings related to the offense." 18 U.S.C. § 3663A(b)(4) (emphasis added). The italicized language above reflects that a victim has the right to attend trial and be compensated for the time attending trial (i.e., as lost income).
In the spreadsheet, the government indicates that, when a KFI employee attended trial on the company's behalf, it did not ask for any attorney's fees, i.e., even if an OMM attorney was also present attending trial. Rather, the only time the government asked for attorney's fees was where an OMM attorney (Ms. Bunzel) "stood in" as the KFI representative because there was no other KFI employee attending trial that day.
The Court agrees with the government that KFI had the right to have Ms. Bunzel stand in for KFI at trial. Contrary to what Mr. Nosal argues, Ms. Bunzel's presence did not have to be "useful" to the prosecution at the trial. Rather, under the statute, KFI as the victim had the right to attend trial - or rather, given its corporate status, to have a representative attend trial on its behalf.
That being said, it is not clear that the lost income to KFI as a result of attendance at trial should be based on Ms. Bunzel's hourly rate. Indeed, at the hearing, the government recognized this problem and proposed that the lost income to KFI be based on the hourly rate of Mr. Dunn (KFI's general counsel) instead - i.e., Mr. Dunn's hourly rate would be a proxy for the hourly rate if a KFI employee had attended trial instead of Ms. Bunzel. The Court finds this proposal reasonable and therefore adopts it.
The Court acknowledges that Mr. Dunn's hourly rate represents his lost wages; nevertheless, it is an adequate proxy for KFI's lost income.
Mr. Dunn's hourly rate was approximately $444. See United States v. Nosal, No. CR-08-0237 EMC, 2014 U.S. Dist. LEXIS 69358, at *14 (N.D. Cal. May 20, 2014) (reflecting that "Mr. Dunn's 355 hours is worth $157,810" which amounts to an hourly rate of approximately $444). This is significantly less than Ms. Bunzel's hourly rate, which was approximately $760.50. See, e.g., Spreadsheet, p. 36 (time entry dated 4/8/2013) (reflecting $3,650.40 for 4.80 hours of Ms. Bunzel's time).
When the restitution issue was first before this Court in 2013 and 2014, the total attorney's fees that were requested as restitution was $964,929.65. See Nosal, 2014 U.S. Dist. LEXIS 69358, at *15; Docket No. 541 (Spreadsheet, p. 42). Of that total, approximately $171,000 was incurred post-verdict (i.e., from the end of April 2013 through January 2014), representing approximately 290 hours of time. These were the circumstances that led the Ninth Circuit to "note that a highly disproportionate percentage of the fees arose from responding to requests and inquiries related to sentencing, damages, and restitution. The reasonableness of the fees needs to be reexamined to consider (i) whether the sizeable fee related to restitution matters was reasonable." Nosal, 844 F.3d at 1048.
The government has now significantly reduced its request for post-verdict fees. For the period from the end of April 2013 through January 2014, the government seeks as restitution approximately $36,000 in fees, representing about 54 hours of time. The government has largely reduced its request by cutting out time spent on "restitution" and instead asking only for fees spent on "loss." By "loss," the government appears to be referring to the amount of KFI's loss for purposes of calculating the Sentencing Guidelines. See Docket No. 476 (Br. at 1, 15) (making a distinction between "loss" as the term is defined in the Sentencing Guidelines and "restitution" as provided for under the MVRA; arguing that "the loss amount for purposes of calculating the Guidelines in this case is $592,295, which falls within the range set out at U.S.S.G. § 2B1.1(b)(1)(H) and which calls for a 14-point adjustment to the base offense level"); Docket No. 503 (Order at 1) (calculating loss for purposes of the Guidelines as $46,907.88, "thus warranting a six level increase in Defendant's offense level"; noting that loss "includes (1) the costs incurred by [KFI] in responding to defendant's actions and (2) the development costs of the source lists stolen from KFI in furtherance of the conspiracy").
• 3/4/2008: Review/analyze document and emails in preparation for conference call with K. Waldinger [ASUA] and C. Sadlowski [FBI]; draft emails regarding same; and call to C. Sadlowski regarding same . . . ; Conference with K. Waldinger regarding issues related to criminal matter. Here, it is not clear that the conference was taking place at the request of the government, which would indicate "value added."
• 11/16/2009: Conference with K. Waldinger [AUSA] and his assistant regarding requested meetings with Korn/Ferry witness . . . ; Conference with K. Waldinger and C. Sadlowski [FBI] regarding scheduling of witness interviews. Here, this seems like a ministerial task that does not really advance the prosecution (even if the actual meetings or interviews do).
• 02/07/2013: . . . Conference with K. Waldinger [AUSA] and M. Briski [KFI] regarding certain data thefts. Here, it is not clear what "value added" OMM had.
The government's new request for restitutionary fee awards is $183,414.37. The Court makes four deductions as discussed above ($6,000; $5,048.19; $3,600; and $5,000), and thus the total restitutionary fee awarded is $163,766.18.
The Court previously awarded other restitution that the Ninth Circuit upheld on appeal ($27,400 in response costs and $204,825 for the value of KFI's employee's time). Thus, taking into account all components of restitution, including this new fee award, the total restitution awarded KFI is $395,991.18.
The Clerk of the Court is ordered to file an amended judgment, reflecting the new total restitution of $395,991.18.


Article 368 (1) of the Constitution of India grants constituent power to make formal amendments and empowers Parliament to amend the Constitution by way of addition, variation or repeal of any provision according to the procedure laid down therein, which is different from the procedure for ordinary legislation. Article 368 has been amended by the 24th and 42nd Amendments in 1971 and 1976 respectively. The following is the full text of Article 368 of the Constitution, which governs constitutional amendments.
New clauses 368 (1) and 386 (3) were added by the 24th Amendment in 1971, which also added a new clause (4) in article 13 which reads, “Nothing in this article shall apply to any amendment of this Constitution made under article 368.” The provisions in italics were inserted by the 42nd Amendment, but were later declared unconstitutional by the Supreme Court in Minerva Mills v. Union of India in 1980. After the 24th amendment, Article 4 (2) of the constitution is superseded by article 368 (1) which is the only procedure for amending the constitution however marginal may be the nature of the amendment. Supreme Court ruled that the constituent power under article 368 must be exercised by the Parliament in the prescribed manner and cannot be exercised under the legislative powers of the Parliament.
As per the procedure laid out by article 368 for amendment of the Constitution, an amendment can be initiated only by the introduction of a Bill in either House of Parliament. The Bill must then be passed in each House by a majority of the total membership of that House and by a majority of not less than two-thirds of the members of that House present and voting. There is no provision for a joint sitting in case of disagreement between the two Houses. Total membership in this context has been defined to mean the total number of members comprising the House irrespective of any vacancies or absentees on any account vide Explanation to Rule 159 of the Rules of Procedure and Conduct of Business in Lok Sabha. “Abstentions” in any voting are not taken into consideration in declaring the result of any question. A member who votes “abstention” either through the electronic vote recorder or on a voting slip or in any manner, does so only to indicate his presence in the House and his intention to abstain from voting; he does not record his vote within the meaning of the words “present and voting”. The expression, “present and voting” refers to those who vote for “ayes” and for “noes”.
The Bill, passed by the required majority, is then presented to the President who shall give his assent to the Bill. If the amendment seeks to make any change in any of the provisions mentioned in the proviso to article 368, it must be ratified by the Legislatures of not less than one-half of the States. These provisions relate to certain matters concerning the federal structure or of common interest to both the Union and the States viz., the election of the President (articles 54 and 55); the extent of the executive power of the Union and the States (articles 73 and 162); the High Courts for Union territories (article 241); The Union Judiciary and the High Courts in the States (Chapter IV of Part V and Chapter V of Part VI); the distribution of legislative powers between the Union and the States (Chapter I of Part XI and Seventh Schedule); the representation of States in Parliament; and the provision for amendment of the Constitution laid d own in article 368. Ratification is done by a resolution passed by the State Legislatures. There is no specific time limit for the ratification of an amending Bill by the State Legislatures. However, the Resolutions ratifying the proposed amendment must be passed before the amending Bill is presented to the President for his assent.
The question whether fundamental rights can be amended under Article 368 came for consideration of the Supreme Court in Shankari Prasad v. Union of India In that case the Validity of the First Constitutional Amendment which added Article 31-A and 31-B of the Constitution was challenged. It was contended that though it may be open to Parliament to amend the provisions in respect of the fundamental rights, the amendments, would have to be tested in the light of the provisions contained in Art.13(2) of the Constitution. The Supreme Court, with a bench of five judges, unanimously rejected the contention that in so far as the First Amendment took away or abridged the fundamental rights conferred by Part III it should not be upheld in the light of the provisions of article 13(2). Shastri J: delivering the judgment of the court said that although “law” must ordinarily include constitutional law, there is a clear demarcation between ordinary law, which is made in the exercise of legislative power, and constitutional law, which is made in the exercise of constituent power. Dicey defines constitutional law as including “all rules which directly or indirectly affect the distribution or the exercise of the sovereign power in the State.” The terms of Art.368 arc perfectly general and empower Parliament t” amend the Constitution, without any exception whatever.
Notwithstanding the First Amendment, agrarian legislative measures adopted by the States were effectively challenged in the High Courts and two further amendments were passed to save the validity of those measures. The Constitution (Fourth Amendment) Act, 1955, amended article 31-A, while the Constitution (Seventeenth Amendment) Act, 1964, amended article 31-A, again and added 44 Acts to the Ninth schedule.
In Sajjan Singh v. State of Rajasthan: The validity of the Seventeenth Amendment was challenged in this case. The main contention before the five-judge bench of the Supreme Court was that the Seventeenth Amendment limited the jurisdiction of the High Courts and, therefore, required ratification by one-half of the States under the provisions of article 368. The court unanimously disposed of this contention, but members of the court chose to deal with a second submission, that the decision in the Shankari Prasad case should be reconsidered. The Chief Justice (Gajendragadkar C.J.) in delivering the view of the majority (Gajendragadkar C.J., Wanchoo and Raghubar Dayal JJ.) expressed their full concurrence with the decision in the earlier case. The words “amendment of this constitution” in article 368 plainly and unambiguously meant amendment of all the provisions of the Constitution; it would, therefore, be unreasonable to hold that the word “law” in article 13(2) took in Constitution Amendment Acts passed under article 368.
They went on to point out that, even if the powers to amend the fundamental rights were not included in article 368, Parliament could by a suitable amendment assume those powers. The Chief Justice also dealt in his judgment with the wording of article 3lB. That article, he considered, left it open to the Legislatures concerned to repeal or amend Acts that had been included in the Ninth Schedule. But the inevitable consequence would be that an amended provision would not receive the protection of article 31B and that its validity could be examined on its merits.
Hidayatullah and Mudholkar JJ., in separate judgments, gave notice that they would have difficulty in accepting the reasoning in Shankari Prasad’s case in regard to the relationship of articles 13 (2) and 368. Hidayatullah J. said that he would require stronger reasons than those given in that case to make him accept the view that the fundamental rights were not really fundamental, but were intended to be within the power of amendment in common with other parts of the Constitution. The Constitution gives so many assurances in Part III that it would be difficult to think that they were the play things of a special majority.” Mudholkar J. took the view that the word “law” in article 13 (2) included an amendment to the Constitution under article 368.Article 368 does not say that when Parliament makes an amendment to the Constitution it assumes a different capacity, that of a constituent body. The learned Judge recalled that India had a written constitution, which created various organs at the Union and State levels and recognized certain rights as fundamental.
The judgments in Sajjan Singh’s case were to provide the outlines of what was to become, and still is, a national debate on the method by which the Indian Constitution can be amended. As an Indian commentator has pointed out the doubts expressed by Hidayatullah and Mudholkar JJ. in Sajjan Singh’s case about the correctness of the decision in Shankari Prasad’s case were to be confirmed by the majority in the next case to be considered (Golak Nath’s case). Golak Nath’s case was itself to be overruled by a majority in the Keshvananda bharti’s case, this time in favour of Mudholkar J’s view that certain features of the Constitution were basic and unalterable. The minority judges in Keshvananda’s case were to return to the view of the court in Shankari Prasad’s case and the majority in Sajjan Singh’s case.
In Golakhnath v. State of Punjab: The doubts of the minority judges in Sajjan Singh’s case as to the correctness of the decision in Shankari Prasad’s case were raised before a bench of eleven judges of the Supreme Court in this case, in which the validity of the First and Seventeenth Amendments to the Constitution in so far as they affected fundamental rights was again challenged. The Fourth Amendment was also challenged. This time a majority of six judges to five decided that Parliament had no power to amend any of the provisions of Part III, so as to take away or abridge the fundamental rights enshrined therein. The majority were, however, faced with the problem that, if the First, Fourth and Seventeenth Amendments were at a late stage to be invalidated, the impact on social and economic affairs would be chaotic. On the other hand, the court considered that it had a duty to correct errors in the law. It, therefore, adopted a doctrine of prospective overruling under which the three constitutional amendments concerned would continue to be valid, and the decision to the effect that Parliament had no power to amend the provisions of Part III would operate for the future only.
(i) Article 368 with its marginal note “Procedure for amendment of the Constitution” dealt only with the procedure for amendment. Amendment was a legislative process and the power of Parliament to make amendments was contained in article 248 and Entry 97 in List I of the Seventh Schedule (the Union List) which confer residuary legislative powers on the Union Parliament.
(ii) An amendment to the Constitution, whether under the procedural requirements of article 368 or under any other article, is made as part of the normal legislative process. It is, therefore, a “law” for the purpose of article 13(2).
The judgment of three of the dissentients. (Wanchoo, Bhargava and Mitter JJ.) in the Golak Nath” case was delivered by Wanchoo J. The learned observed that Art.368 carried the power to amend all parts of the constitution including the fundamental rights in part III of the constitution. They reaffirmed the correctness of the decisions in cases of Shankri Prasad and Sajjan singh.
A new clause was added as clause (I): “(I) Notwithstanding anything in this Constitution, Parliament may in exercise of its constituent power amend by way of addition, variation or repeal any provision of this Constitution in accordance with the procedure laid down in this article.
Another amendment to the old article 368 (now article 368(2)) made it obligatory rather than discretionary for the President to give his assent to any Bill duly passed under the article.
The Supreme Court recognized BASIC STRUCTURE concept for the first time in the historic Kesavananda Bharati case in 1973. Ever since the Supreme Court has been the interpreter of the Constitution and the arbiter of all amendments made by parliament. In this case validity of the 25th Amendment act was challenged along with the Twenty-fourth and Twenty-ninth Amendments. The court by majority overruled the Golak Nath case which denied parliament the power to amend fundamental rights of the citizens. The majority held that article 368 even before the 24th Amendment contained the power as well as the procedure of amendment. The Supreme Court declared that Article 368 did not enable Parliament to alter the basic structure or framework of the Constitution and parliament could not use its amending powers under Article 368 to ‘damage’, ‘weaken’, ‘destroy’, ‘abrogate’, ‘change’ or ‘alter’ the ‘basic structure’ or framework of the constitution. This decision is not just a landmark in the evolution of constitutional law, but a turning point in constitutional history.
In Kesavananda Bharti v. State of Kerala: It is a landmark of the Supreme Court of India, and is the basis in Indian law for the exercise by the Indian judiciary of the power to judicially review, and strike down, amendments to the Constitution of India passed by the Indian Parliament which conflict with or seek to alter the Constitution’s basic structure. The judgment also defined the extent to which the Indian Parliament could restrict the right to property, in pursuit of land reform and the redistribution of large landholdings to cultivators, overruling previous decisions that suggested that the right to property could not be restricted.
Sikri C. J. held that the fundamental importance of the freedom of the individual has to be preserved for all times to come and that it could not be amended out of existence. According to the learned Chief Justice, fundamental rights conferred by Part III of the Constitution cannot be abrogated, though a reasonable abridgement of those rights could be effected in public interest. There is a limitation on the power of amendment by necessary implication which was apparent from a reading of the preamble and therefore, according to the learned Chief Justice, the expression “amendment of this Constitution”, in Article 368 means any addition or ‘change in any of the provisions of the Constitution within the broad contours of the preamble, made in order to carry out the basic objectives of the Constitution. Accordingly, every provision of the Constitution was open to amendment provided the basic foundation or structure of the Constitution was not damaged or destroyed. Shelat and Grover, JJ. held that the preamble to the Constitution contains the clue to the fundamentals of the Constitution. According to the learned Judges, Parts III and IV of the Constitution which respectively embody the fundamental rights and the directive principles have to be balanced and harmonized. This balance and harmony between two integral parts of the Constitution forms a basic element of the Constitution which cannot be altered. The word ‘amendment’ occurring in Article 368 must therefore be construed in such a manner as to preserve the power of the Parliament to amend the Constitution, but not so as to result in damaging or destroying the structure and identity of the Constitution. There was thus an implied limitation on the amending power which precluded Parliament from abrogating or changing the identity of the Constitution or any of its basic features.
Hegde and Mukherjea, JJ. held that the Constitution of India which is essentially a social rather than a political document is founded on a social philosophy and as such has two main features basic and circumstantial. The basic constituent remained constant; the circumstantial was subject to change. According to the learned Judges, the broad contours of the basic elements and the fundamental features of the Constitution are delineated in the preamble and the Parliament has no power to abrogate or emasculate those basic elements of fundamental features. The building of a welfare State, the learned Judges said, the ultimate goal of every Government .but that does not mean that in order to build a welfare State, human freedoms have to suffer a total destruction. Applying these tests, the learned Judges invalidated Article 31C even in its un-amended form.
Jaganmohan Reddy, J. held that the word ‘amendment’ was used in the sense of permitting a change, in contradistinction to destruction, which the repeal or abrogation brings about. Therefore, the width of the power of amendment could not be enlarged by amending the amending power itself. The learned Judge held mat the essential elements of the basic structure of the Constitution are reflected in its preamble and that some of the important features of the Constitution are justice, freedom of expression and equality of status and opportunity. The word ‘amendment’ could not possibly embrace the right to abrogate the pivotal features and the fundamental freedoms and therefore, that part of the basic structure could not be damaged or destroyed. According to the learned Judge, the provisions of Article 31C, as they stood then, conferring power on Parliament and the State Legislatures to enact laws for giving effect to the principles specified in Clauses (b) and (c) of Article 39, altogether abrogated the right given by Article 14 and were for that reason unconstitutional. In conclusion, the learned Judge held that though the power of amendment was wide, it did not comprehend the power to totally abrogate or emasculate or damage any of the fundamental rights or the essential elements of the basic structure of the Constitution or to destroy the identity of the Constitution. Subject to these limitations, Parliament had the right to amend any and every provision of the Constitution.
Khanna, J. broadly agreed with the aforesaid views of the six learned Judges and held that the word ‘amendment’ postulated that the Constitution must survive without loss of its identity, which meant that the basic structure or framework of the Constitution must survive any amendment of the Constitution. According to the learned Judge, although it was permissible to the Parliament, in exercise of its amending power, to effect changes so as to meet the requirements of changing conditions, it was not permissible to touch the foundation or to alter the basic institutional pattern. Therefore, the words “amendment of the Constitution” in spite of the width of their sweep and in spite of their amplitude, could not have the effect of empowering the Parliament to destroy or abrogate the basic structure or framework of the Constitution.
In Indira Nehru Gandhi v. Raj Narayan: Basic Structure concept reaffirmed in this case. The Supreme Court applied the theory of basic structure and struck down Cl(4) of article 329-A,which was inserted by the 39th Amendment in 1975 on the ground that it was beyond the amending power of the parliament as it destroyed the basic feature of the constitution. The amendment was made to the jurisdiction of all courts including SC, over disputes relating to elections involving the Prime Minister of India.
Equality of status and opportunity of an individual.
Secularism and freedom of conscience and religion.
Government of laws and not of men’ i.e. the rule of law.
2nd Amendment: After the decision of the Supreme Court in Keshvanand Bharti and Indira Nehru Gandhi case the constitution (42nd Amendment) Act, 1976 was passed which added two new clauses, namely, clause (4) and (5) to Art.368 of the Constitution. It declared that there shall be no limitation whatever on the constituent power of parliament to amend by way of addition, variation or repeal of the provisions of the Constitution under this Article. This Amendment would put an end to any controversy as to which is supreme, Parliament or the Supreme Court. Clause (4) asserted the supremacy of the parliament. It was urged that Parliament represents the will of the people and if people desire to amend the Constitution through Parliament there can be no limitation whatever on the exercise of this power. This amendment removed the limitation imposed on the amending power of the Parliament by the ruling of the Supreme Court in Keshvanand Bharti’s case. It was said that the theory of ‘basic structure’ as invented by the Supreme Court is vague and will create difficulties. The amendment was intended to rectify this situation.
The amendment made to Art.31C by the 42nd Amendment is invalid because it damaged the essential features of the Constitution. Clauses (4) and (5) are invalid on the ground that they violate two basic features of the Constitution viz. limited nature of the power to amend and judicial review. The courts cannot be deprived of their power of judicial review. The procedure prescribed by Cl.(2) is mandatory. If the amendment is passed without complying with the procedure it would be invalid. The Judgement of the Supreme Court thus makes it clear that the Constitution is Supreme not the Parliament. Parliament cannot have unlimited amending power so as to damage or destroy the Constitution to which it owes its existence and also derives its power.
In L.Chandra kumar v. Union of India: Article 323-A and 323-B, both dealing with tribunals, were inserted by the 42nd Amendment. Clause 2(d) of Art.323-A and Clause 3(d) of 323-B provided for exclusion of the jurisdiction of the High Court under Art.226 and 227 and the Supreme Court under Art.32.The Supreme Court in this case held these provisions as unconstitutional because they deny judicial review which is basic feature of the Constitution. It held that the power of judicial review vested in the High court under Art.226 and right to move the Supreme Court under Art.32 is an integral and essential feature of the Constitution.
Effect of Keshvanand bharti case-Keshvanand over ruled Golaknath but did not reestablish parliamentary supremacy. It stated that fundamental rights may be amended by the parliament, but not all of them. Those fundamental rights which constitute the basic structure of the Constitution cannot be abridged. Golaknath gave primacy to fundamental rights. Keshvanand recognizes that some other provisions in the Constitution may be equally important. If they form the basic structure they are unamendable. Under Art.368 the parliament cannot rewrite the entire Constitution and bring in a new one.
By invalidating part of Art.31-C keshvanand prevented the state legislature from exercising power to virtually amend the constitution. Art.31-C lays down that if a state legislature makes a law which contains a declaration that it is to giving effect to the policy contained in Art.39(b)and(c) then no court may scrutinize it. Thus a state legislature could make review proof law. Keshvanand denied them such power. Power of judicial review shall remain with the court, legislative declaration cannot destroy it.
Summary of the effect of the various judgments: The effect of the various decisions of the Supreme Court may be thus summarized: Parliament has limited powers to amend the constitution. The Procedure prescribed for the amendment is mandatory. Non compliance with it will result in invalidity of the amendment. Clauses (4) and (5) inserted in Art. 368 by the 42nd Amendment Act are invalid because they take away the right of judicial review. Parliament cannot increase its amending power by amending Art. 368.
Evaluation of the judgments: Golaknath and later Keshavanand were subjected to a lot of criticism. It was said that there are no express limitations to the amending power. The courts are enlarging their powers by inventing implied limitations. It was contended that the doctrine of basic features leads to uncertainty. Nobody can foretell with certainty what the basic features are. The Parliament does not know where it stands—what power it possesses. Without uncontrolled power the Parliament cannot bring about socio-economic reforms.
The answer to these comments is—the Supreme Court has adopted a purposive approach. Most of the amendments that were invalidated were no part of any socio-economic reforms. Some of them had nothing to do with public welfare. The 39th and 42nd Amendments were made to ensure power to one individual and one party. The standard of political morality is low. Within political parties democracy hardly breathes and power is concentrated in the hands of a single individual or a coterie. Majority of the people are apathetic and easily led by attractive slogans. All these situations compelled the Supreme Court to rule in favour of limited powers and protect the freedom of the people. Uncertainty is part of life. Most of the legal concepts e.g. negligence, reasonableness, public interest and natural justice are not susceptible to exact definitions. The 39th and 42nd Amendments have clearly shown that unlimited amending power can be and effective instrument to usher dictatorship. The doctrine of implied powers is a safety device to prevent such occurrence.
The amendment process was incorporated in the Constitution by the Draftsmen of the Constitution to help India adapt itself to the changing circumstances. Society is never stagnant. It is ever- changing. Therefore the amending procedure was made partly flexible so as to make it easy for the Legislature. But the Parliament started thinking that it has unlimited amending power. It assumed itself to be the supreme law when the Constitution is the supreme law of the land. The Parliament started making amendments which were destroying the basic structure of the Indian Constitution. But after the landmark decisions of Keshavanand Bharati and Minerva Mills the Court by its power of judicial review has curtailed the amending power of the Parliament. The amendments made by the Parliament can no more affect the basic structure of the Constitution. But, looking at the ease with amendments can take place depending on the whims and fancies of the ruling government and the POLITICS IN THE POLITICS OF INDIA we cannot say how long the rights of the citizens are safe and unobstructed.
The Constitution can be amended only by Parliament; and only in the manner provided. Although Parliament must preserve the basic framework of the Constitution, there is no other limitation placed upon the amending power, meaning that there is no provision of the Constitution that cannot be amended. In Abdul Rahiman Jamaluddin v. Vithal Arjun the Bombay High Court held that any attempt to amend the Constitution by a Legislature other than Parliament, and in a manner different from that provided for, will be void and inoperative.
The Supreme Court first struck down a constitutional amendment in 1967, ruling in the case of I.C. Golak Nath and Ors. vs. State of Punjab and Anr. An amendment was struck down on the basis that it violated Article 13: “The State shall not make any law which takes away or abridges the rights conferred by [the charter of Fundamental Rights]”. The term “law” in this article was interpreted as including a constitutional amendment. Parliament responded by enacting the twenty-fourth Amendment of the Constitution of India which declared that “nothing in Article 13 shall apply to any amendment of this Constitution”.
The current limitation on amendments comes from Kesavananda Bharati v. The State of Kerala, where the Supreme Court ruled that amendments of the constitution must respect the “basic structure” of the constitution, and certain fundamental features of the constitution cannot be altered by amendment. Parliament attempted to remove this limitation by enacting the Forty-second Amendment, which declared, among other provisions, that “there shall be no limitation whatever on the constituent power of Parliament to amend …this Constitution”. However, this change was itself later declared invalid by the Supreme Court in Minerva Mills v. Union of India.
The issue of whether an entire constitutional amendment is void for want of ratification or only an amended provision required to be ratified under proviso to clause (2) of article 368 was debated before the Supreme Court in Kihota Hollohon v. Zachilhu, in which the constitutional validity of the Tenth Schedule of the Constitution inserted by the 52nd Amendment in 1985 was challenged. The decisions of the Speakers/Chairmen on disqualification, which had been challenged in different High Courts through different petitions, were heard by a five-member Constitution Bench of the Supreme Court. The case, now popularly known as Anti-Defection case, was decided in 1992. The Constitution Bench in its majority judgement upheld the validity of the Tenth Schedule, but 7 of the Schedule invalid because it was not ratified by the required number of the Legislatures of the States as it brought about in terms and effect, a change in articles 136, 226 and 227 of the Constitution. While doing so, the majority treated Paragraph 7 as a severable part from the rest of the Schedule. However, in the dissenting opinion, the minority of the Judges held that the entire Amendment is invalid for want of ratification.
Constitutional amendments have been made to facilitate changes in the territorial extent of the Republic of India due to the incorporation of the former French colony of Pondicherry, the former Portuguese colony of Goa, and a minor exchange of territory with Pakistan. Amendments are also necessary with regard to littoral rights over the exclusive economic zone of 200 mi and the formation of new states and union territories by the reorganization of existing states. Constitutional amendment under article 368 allows peaceful division of the country provided fundamental rights (Article 13) are ensured in all the resultant countries. The constitution (ninth amendment) act, 1960 is an example which has ceded territory to old Pakistan.
Creation of the National Commission for Scheduled Castes.
Creation of the National Commission for Scheduled Tribes.
Creation of mechanisms for Panchayati Raj (local self governance).
Disqualification of members from changing party allegiance.
Restrictions on the size of the cabinet.
Restrictions on imposition of an internal emergency.
Now we can say, there is no hard and fast rule for basic feature of the Constitution. Different judge keep different views regarding to theory of basis structure. But at one point they have similar view that parliament has no power to destroy, alter, or emasculate the ‘basic structure’ or framework of the constitution. If the historical background, the preamble, the entire scheme of the constitution and the relevant provisions thereof including article 368 are kept in mind then there can be no difficulty, in determining what are the basic elements of the basic structure of the constitution. These words apply with greater force to doctrine of the basic structure, because, the federal and democratic structure of the constitution, the separation of powers, the secular character of our state are very much more definite than either negligence or natural justice. So for the protection of welfare state, fundamental rights, Unity and integrity of the nation, Sovereign democratic republic and for Liberty of thought, expression, belief, faith and worship, interpretation of judiciary is mandatory. We can say none is above constitution even parliament and judiciary.
Provision for amendment of the constitution is made with a view to overcome the difficulties which may encounter in future in the working of the Constitution. If no provision made for the amendment of the Constitution, the people would have recourse to extra constitutional method like revolution to change the constitution.
A rigid constitution is a must in a federal system of governance. In case of Indian constitution, it has been argued that it is not rigid enough. That there have been 93 amendments in last 50 years proves this fact. As a comparison, there have been only 27 amendments in the constitution of USA in the past 200 years. In Australia out of 30 amendments proposed by absolutely majority of Australian Parliament only four were accepted and 26 were rejected by the people. In the hindsight, it can be said that the safeguards to prevent the spirit of the constitution were not enough. Politicians have time and again shown that they can modify it easily to serve their vote based politics. This has been done deliberately to ensure that the constitution can be changed as per the needs of the times. However, to prevent excessive changes on the whims of the ruling party, sufficient safeguard shave been put.


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Courts have broad discretion in setting the appropriate fine or imprisonment following a criminal contempt proceeding. See frank v. United states, 395 u.S. 147, 149 (1969); United states v. United mine workers of america, 330 u.S. 258, 303; United states v. Ray, 683 f.2d 1116 (6th Cir. 1982), cert. denied, 459 U.S. 1091 (1983); United states v. Greyhound corp., 508 F.2d 529, 541 (7th Cir. 1974); Moore v. United states, 150 f.2d 323, 325 (10th Cir. 1945), cert. denied, 326 U.S. 740 (1945); Brooks v. United states, 119 f.2d 636, 646 (9th Cir.), cert. denied, 313 U.S. 594 (1941). However, the sentence imposed in a criminal contempt is subject to appellate review and modification. Green v. United states, 356 u.S. 165 (1958); United states v. Bukowski, 435 f.2d 1094 (7th Cir.), cert. denied, 401 U.S. 911 (1971).
When a contemnor is to be summarily held in criminal contempt at the end of trial, the person should be given "an opportunity to speak in his own behalf in the nature of right of allocution." Groppi v. Leslie, 404 u.S. 496, 504 (1972); see Taylor v. Hayes, 418 u.S. 488, 498 (1974); Weiss v. Burr, 484 F.2d 973 (9th Cir. 1973).

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Keywords: Special Education, Environmental Education, Inclusion, Activities of Daily Living.
The purpose of this article is to present activities developed in Natural Sciences discipline, of the 6th year of schooling, with students with special educational needs, with underlying daily life activities related to the consumption of water, aiming to raise awareness of the importance of this resource, as well as the need to rationalize its consumption. Potable water is an increasingly scarce resource, and its use and governance are increasingly sustainable, a purpose that should involve the whole community, which implies including children/young people who can/should also contribute to achieve such goals. Considering the School an essentially formal teaching and learning institution, where knowledge of the water resource, its sustainable management and use are mandatory curricular contents for all students, a set of practical activities based on the daily life activities were elaborated, thus allowing the direct involvement of all students in them, making them citizens with full rights, more knowledgeable and consequently more involved in the community and environment that they integrate.
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MEDEIROS, A. B.; MENDONÇA, M. J. S. L.; SOUSA, G. L. de; OLIVEIRA, I. P. (2011). A Importância da educação ambiental na escola nas séries iniciais. Revista Faculdade Montes Belos, v. 4, n. 1.
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PEREIRA, L. F. (2007). Que infância estamos construindo? Folha de São Paulo, São Paulo, 12 out. 2007. Disponível em: . Acedido em 16 março de 2017.
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