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Heirs of the Late Justice JOSE B. L. REYES represented by ADORACION D. REYES and Heirs of EDMUNDO A. REYES, namely, MA. TERESA P. REYES and CARLOS P. REYES, Petitioners, v. COURT OF APPEALS AND METRO MANILA BUILDERS, INC., Respondents.
The factual background of the case dates back to November 30, 1976. Brothers Justice Jose Benedicto Luna Reyes (also known as Justice J. B. L. Reyes) and Dr. Edmundo A. Reyes were co-owners of a parcel of land located at Taft Avenue, Pasay City, near Buendia, with a land area of more than one hectare, covered by two Transfer Certificates of Title8 . On November 30, 1976, the brothers entered into a 25-year lease contract 9 with Metro Manila Builders, Inc. (MMB, Inc.) at a very low rate of rental (P15,000.00 to P30,000.00 a month) in consideration of the fact that the lessee would cover all present and future improvements in the property with insurance against certain risks and maintain the premises in good, sanitary and tenantable condition at all times.
Failing to do so, on February 3, 1997, petitioners filed with the Metropolitan Trial Court, Pasay City, Branch 45 a complaint for unlawful detainer 10 based on breach of the contract of lease.
On November 26, 1997, MTC Branch 45, Pasay City, 16 granted the motion for execution that petitioners filed. Consequently, on December 1, 1997, the trial court issued the corresponding writ of execution. 17 However, on December 8, 1997, the Court of Appeals issued a temporary restraining order 18 against the execution of the ejectment.
Simultaneously with the withdrawal of the first CA case, 21 on February 17, 1998, private respondent also filed a petition for annulment of the ejectment decision before the Regional Trial Court, Pasay City, Branch 231 (RTC 231) 22 on the ground that the MTC had no jurisdiction over the ejectment case. MMB, Inc. prayed for a temporary restraining order and/or preliminary injunction against the execution of the ejectment decision. The court, however, did not issue a temporary restraining order (TRO) against MTC Branch 45, Pasay City.
6.1	What gave petitioner away is its silence on why it failed, nay refused to raise the issue of jurisdiction in its petition before the appellate court. Jurisdiction it is elementary may be raised anytime even before the first time on appeal. (Gov’t. v. American Surety Company 11 PHIL 203; Vda. De Roxas v. Rafferty, 37 PHIL 957; People v. Que Po Lay, 94 PHIL 64003.
On May 20, 1998, respondent MMB, Inc. filed with the Court of Appeals 38 another case seeking to set aside the order of the RTC Pasay, Branch 231, dismissing the action and praying that a temporary restraining order be issued against the MTC-45 Pasay City enjoining the writ of execution issued in Civil Case No. 113-97, to desist from proceeding with CA-G. R. SP No. 47158, to declare the order of respondent judge in Civil Case No. 98-0366 as null and void for being issued in grave abuse of discretion, without or in excess of its jurisdiction, and to declare the TRO/injunction permanent.
On July 2, 1998, respondents filed with the Regional Trial Court, Branch 110, Pasay City a petition seeking a temporary restraining order to enjoin MTC Branch 45, Pasay City, 43 and the sheriff 44 from enforcing the writ of execution issued on December 1, 1997.
"Accordingly, this Court hereby RESOLVES to grant the instant petition.
"1.	A writ of Execution Pending Appeal of the Decision of this Court dated August 21, 1998 is hereby issued.
"2.	Private respondents and their counsel are hereby adjudged guilty of indirect contempt of this Honorable Court and are hereby sentenced to pay a fine of P30,000.00. Private respondents and counsel are also directed to make a complete restoration to petitioner of the subject property.
3.	In immediately executing its resolution dated September 18, 1998, transferring possession of the property from petitioners to respondent MMB, Inc. by a special sheriff.
4.	In declaring petitioners guilty of indirect contempt of court, and sentencing them to pay a fine of P30,000.00.
The crux of the case is whether there was a need for judicial rescission of the contract of lease before respondent MMB, Inc. may be compelled to move out of the leased premises.
We find the petitions impressed with merit.
"Section 18, paragraph 4 (a) In the event of default or breach of any of the condition of this contract . . . .
(b)	. . . the LESSOR may, in his absolute discretion declare the contract cancelled and terminated and require the TENANT to vacate the leased premises . . .
3.	Par. 11 of the contract requiring defendant to secure LESSOR’s prior written consent before it may assign or transfer any of its rights under the contacts.
The basic issue having been disposed of, we need not resolve the other issues petitioners raised.
Costs against respondent MMB, Inc.
Let a copy of this decision be furnished to the Presiding Justice, Court of Appeals, Manila, for dissemination to the Associate Justices, Court of Appeals, for their information and guidance.
Davide, Jr., C.J., Melo, Puno, Kapunan, Mendoza, Panganiban, Quisumbing, Purisima, Buena, Gonzaga-Reyes, Ynares-Santiago and De Leon, Jr., JJ., concur.
Vitug, J., took no part; close relationship with some parties.
1.	In CA-G. R. SP No. 47158 and SP No. 47720, promulgated on August 21, 1998, Demetria, J., ponente, Barcelona and Barrios, JJ., concurring. G. R. Nos. 135180-81 Rollo, pp. 10-17.
2.	In Civil Case No. 113-97, Decision, dated May 9, 1997.
3.	In Civil Case No. 98-0366, Orders dated March 23 and April 14, 1998.
4.	In the same cases CA-G. R. SP No. 47158 and SP No. 47720.
5.	CA G.R. SP No. 47158 and SP No. 47720, Resolution, September 18, 1998. G. R. Nos. 135425-26, Rollo, pp. 35-38.
6.	Writ of Execution, dated September 21, 1998, Ibid., Rollo, pp. 39-40.
7.	Enforced by Mr. Efren Revamonte, designated Special Sheriff by the Court of Appeals, Mailing Section, Rollo, p. 39.
8.	G. R. Nos. 135180-81, Petition, Annexes "A" and "B", Rollo, pp. 103-105.
9.	Ibid., Annex "C", pp. 106-120.
10.	Docketed as Civil Case No. 113-97; G. R. Nos. 135180-81, Petition, Annex "B" Rollo, pp. 95-137.
11.	G. R. Nos. 135180-81. Petition, par. 9.1. Annex "E." Rollo, pp. 354-356.
12.	G. R Nos. 135180-81, MTC Decision, Civil Case No. 113-97, Judge Manuel G. Garcia (MTC Branch 45, Pasay City), Petition, Annex "C", Rollo, pp. 138-145.
13.	Petition, par. 9.3, Rollo, p. 26.
14.	Docketed as Civil Case No. 97-0976; Petition, par. 9.4, Rollo, p. 26.
15.	Docketed as CA-G. R SP No. 45853 (First CA Case). Petition, CA Rollo, pp. 8-43.
16.	Presided over by Judge Zenaida G. Laguilles.
17.	G.R Nos. 135180-81, Rollo, pp. 562-563.
18.	G.R. Nos. 135180-81, CA Resolution, Rollo, pp. 181-182.
19.	CA-G. R SP No. 45853, filed on February 16, 1998. CA Rollo, Vol. 2, pp. 228.
20.	CA-G. R SP No. 45853, CA Rollo, Vol. 1, p. 251.
21.	CA-G. R SP No. 45853.
22.	Docketed as Civil Case No. 98-0366, presided over by Judge Cesar Z. Ylagan; G. R Nos. 135180-81, Petition, Annex "H", Rollo, pp. 185-250.
23.	Ibid., Petition, Annex, Rollo, pp. 251-265.
24.	Ibid., Petition, Annex, Rollo, pp. 266-282.
25.	Docketed as CA-G. R. SP No. 47158 (second CA Case).
26.	Petition, CA-G. R. No. SP 47158, CA Rollo, pp. 2-19, at p. 10.
27.	G.R. Nos. 135180-81, Petition, Annex "K-1", Rollo, pp. 357-358.
28.	B.P. No. 129, Section 11.
29.	Revised Internal Rules of the Court of Appeals, Rule 6, Section 2 (c) (2).
30.	Cf. Rule 58, Section 2, 1997 Rules of Civil Procedure, as amended; Rule 3, Section 9 (b), Revised Internal Rules of the Court of Appeals, as amended.
31.	G.R. Nos. 135180-81, Petition, Annex "M", Rollo, pp. 362-363.
32.	Which we hold to be void, supra.
33.	G.R. Nos. 135180-81, Petition, pars. 13 et seq. pp. 31-32.
34.	G.R Nos. 135180-81, Petition, par. 13.1, Rollo, p. 32.
35.	CA-G. R. SP No. 47158.
36.	Filed on May 19, 1998, docketed as Civil Case No. Q-98-34382; Petition, Annex "S" (Annex "C"), Rollo, pp. 571-578.
37.	G.R Nos. 135180-81, Petition, par. 13.6, Rollo, p. 33.
38.	Docketed as CA-G. R. SP No. 47720 (third CA case). G. R. Nos. 135180-81 Petition, Annex "O" Rollo, pp. 368-379.
39.	CA-G. R SP No. 47158.
40.	CA-G. R. SP No. 47720.
42.	G.R. Nos. 135425-26, Petition, Annex "K", Rollo, pp. 148-150.
43.	Now presided over by Judge Zenaida G. Laguilles.
44.	Docketed as Civil Case No. 98-1171.
45.	G.R. Nos. 135425-26, decision, CA-G. R. SP No. 47158 and SP No. 47720, promulgated on August 21, 1998, Petition, Annex "B." Rollo, pp. 42-49.
46.	G.R. Nos. 135425-26, Petition, Annex "C", Rollo, pp. 50-52.
47.	Ibid., Annex "C-1", Rollo, p. 53.
48.	Ibid., Annex "D", Rollo, pp. 54-56.
49.	Ibid., Annex "E", Rollo, pp. 57-59.
50.	CA-G. R. SP No. 47158 and SP No. 47720, CA Rollo, pp. 506-507.
52.	G. R. Nos. 135425-26, Petition, par. 3.5, Rollo, p. 9.
54.	G. R. Nos. 135180-81, Petition for Review, Rollo, pp. 19- 76.
55.	G. R. Nos. 135425-26, Petition, Annex "G", Rollo, pp. 62-72.
56.	Petition, Annex "A-l" Resolution, Rollo, pp. 35-38.
57.	Mr. Efren Revamonte, designated by the Court of Appeals, mailing section, Rollo, p. 39.
58.	CA-G. R. SP No. 47158 and SP No. 47720, CA Rollo, pp. 569-571.
59.	G.R. Nos. 135425-26, Petition for Certiorari, Rollo, pp. 3-33.
60.	People’s Industrial and Commercial Corp. v. Court of Appeals, 281 SCRA 206, 216  citing Manila Bay Club Corp. v. Court of Appeals, 315 Phil. 805, 826 ; Heirs of Juan San Andres v. Rodriguez, G. R. No. 135634, May 31, 2000.
61.	Pangilinan v. Court of Appeals, 279 SCRA 590 ; Jison v. Court of Appeals, 164 SCRA 339, 344 .
62.	Rule 58, Section 5, last par., 1997 Rules of Civil Procedure, as amended.
63.	Comm. of Immigration v. Cloribel, 127 Phil. 716 ; Yasay v. Recto, G.R. No. 129521, September 7, 1999, citing Nazareno v. Barnes, 136 SCRA 57 ; Pacuribot v. Lim, Jr., 275 SCRA 543 .
64.	Yasay v. Recto, supra, Note 63, citing Dee v. SEC, 199 SCRA 238 .
65.	Yasay v. Recto, supra, Note 63.
66.	See Rule 51, Section 11, 1997 Rules of Civil Procedure, as amended.
67.	Del Callar v. Salvador, 268 SCRA 320 ; Mancenido v. Court of Appeals, G. R. No. 118605, April 12, 2000.
68.	Yasuda v. Court of Appeals, G. R. No. 112569, April 12, 2000, Sanz Maceda, Jr. v. Development Bank of the Philippines, G. R. No. 135128, August 26, 1999; Diesel Construction Co., Inc. v. Jollibee Foods Corp., G. R. No. 136805, January 28, 2000.
69.	Federation of United Namarco Distributors, Inc. v. National Marketing Corporation 4 SCRA 867 ; Bell Carpets International Trading Corporation v. Court of Appeals, 185 SCRA 35.
70.	Yasuda v. Court of Appeals, supra, Note 68.
71.	G. R. Nos. 135425-26, Petition, Annex "A-l", Rollo, pp. 3-38, at pp. 36-37.
72.	Diesel Construction Co., Inc. v. Jollibee Foods Corp., supra, Note 68.
73.	Garcia v. Burgos, 353 Phil. 740 .
74.	Conducto v. Judge Monzon, 353 Phil. 796, 813 .
75.	Albert v. Court of First Instance of Manila, 28 SCRA 948, 961 .
76.	People v. Santos, 104 Phil. 551, 560 ; Conducto v. Judge Monzon, supra, Note 74, citing Vivo v. Cloribel, 18 SCRA 713 .
77.	Sanz-Maceda v. Development Bank of the Philippines, supra, Note 68.
78.	Venus v. Desierto, 298 SCRA 196 .
79.	In G. R. Nos. 135180-81, filed on-September 14, 1998.
80.	Rule 51, Sec. 10, 1997 Rules of Civil Procedure, as amended.
81.	On September 14, 1998, with notice to the Court of Appeals.
82.	Comm. of Public Highways v. San Diego, 31 SCRA 616, 631  .
83.	Revised Administrative Code of 1917, Section 330.
84.	Office of the Court Administrator v. Judge Veneracion, A. M. No. RTJ-99- 1432, June 21. 2000.

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STATE of Minnesota, Respondent, v. Jim DILLON, Appellant.
IT IS HEREBY ORDERED that the petition of Jim Dillon for further review of the decision of the court of appeals be, and the same is, granted for the limited purpose of remanding the case to the court of appeals. Dillon, who stands convicted of three counts of drug crimes involving the sale of cocaine or the participation in the sale of cocaine, argued in his petition for review, inter alia, that the court of appeals incorrectly applied the harmless error standard in ruling that certain trial errors were harmless. Specifically, the court of appeals stated that the question was whether there was a reasonable possibility that erroneously admitted evidence contributed to the jury's guilty verdict, then said, "This determination is dependent upon the sufficiency of evidence presented at trial." As we made clear in State v. Starkey, 516 N.W.2d 918, 927 (Minn.1994), the mere fact that the evidence of guilt was "sufficient" means nothing. If the evidence were not sufficient, then the defendant would be entitled to an outright reversal of his conviction, not just a new trial. What is relevant in harmless error impact analysis is how strong the evidence was, not whether it was "sufficient." As Justice Simonett put it in State v. VanWagner, 504 N.W.2d 746, 749 (Minn. 1993), "The error [including the nature and seriousness of the error] and its impact are to be examined within the context of the record as a whole, considering the strength of the state's evidence and the weaknesses of any defense evidence." As a general rule, the stronger the evidence of guilt, the less likely that any error is prejudicial. Similarly, "The more serious the misconduct, the more likely the misconduct was harmful." Id. But general rules-of-thumb do not help much in deciding an individual case. Rather, the reviewing court in an individual case in this case must read the entire record, get a sense of the state's evidence and the defense evidence, and then try to decide whether there is a reasonable possibility that a reasonable jury might have reached a different result if the error or errors in question had not been committed. See also State v. Bolte, 530 N.W.2d 191, 198 (Minn.1995) (disproving of court of appeals' suggestion at the other *559 extreme that the trial error is not harmless unless the evidence of defendant's guilt is "conclusive"), and State v. Post, 512 N.W.2d 99, 102, including n. 2 (Minn.1994) (carefully setting forth the harmless error impact standard to be applied when evidence is erroneously excluded as well as the standard to be applied when evidence is erroneously admitted). Our remand to the court of appeals so that it may apply the correct standard is not meant to suggest an opinion by this court that any error committed by the trial court indeed was prejudicial. Remanded to court of appeals for further proceedings.
 Perhaps the single most significant factor in weighing whether an error was harmful is the strength of the case against the defendant. * * * [A] court should be especially loath to regard any error as harmless in a close case, since in such a case even the smallest error may have been enough to tilt the balance. By the same token, an error may be more freely disregarded if the evidence of defendant's guilt was overwhelming, since in such a case the outcome would almost surely have been the same despite the error.
3A Charles Wright, Federal Practice & Procedure Criminal Second § 854 at 305-07 (1982).


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In Stahl v. Simon (In re Adamson Apparel, Inc.), 785 F.3d 1285 (9th Cir. 2015), the United States Court of Appeals for the Ninth Circuit considered an unresolved issue of bankruptcy law: whether a corporate insider who personally guaranteed a corporate debtor’s loans is subject to preference liability where the guarantor has previously unconditionally waived his subrogation and indemnification rights (hereafter, Subrogation Rights). Though the opinions of lower courts are split, the Ninth Circuit held, under the specific facts of the case, that a waiver of Subrogation Rights absolved the guarantor of preference liability, as the waiver divests the guarantor of "creditor" status as against the debtor which is a necessary element to a preference claim.
In 2002, Adamson Apparel, Inc. (Debtor), a clothing manufacturer and distributer, received a multi-million dollar loan from CIT Group Commercial Services, Inc. (CIT). As security for the loan, CIT took a security interest in the Debtor’s inventory and accounts receivables. In addition, Arnold Simon (Simon), the Debtor’s President and CEO, guaranteed the repayment of the loan by entering into a Cash Collateral Pledge Agreement (Pledge) and a Limited Guaranty (Guaranty). Both the Pledge and Guaranty contained waivers of Subrogation Rights although in differing degrees. The Pledge contained a postponement of Subrogation Rights until CIT had been paid in full, whereas the waiver in the Guaranty was absolute. In late 2003, BP Clothing, L.L.C purchased a large amount of merchandise from the Debtor and was instructed to transfer the purchase price of $4,989,934.65 (Transfer) directly to CIT in partial satisfaction of the debt that Simon guaranteed. After the Debtor filed for bankruptcy, Simon personally repaid the balance of the loan to CIT which was approximately $3.5 million.
Following the Debtor’s September 28, 2004 Chapter 11 filing, the Committee of Unsecured Creditors (Committee) filed an adversary proceeding against Simon seeking to recover the Transfer from Simon on the theory that the Transfer constituted a preference since it reduced Simon’s exposure under the Pledge and Guaranty. Simon argued that because he waived his Subrogation Rights, he was not a creditor of the Debtor and was not subject to preference liability.
The Bankruptcy Court agreed with Simon, holding that he fully waived his Subrogation Rights, which eliminated his status as creditor for preference liability purposes. On appeal, the United States District Court for the Central District of California reversed and remanded to the Bankruptcy Court for further factual development due to ambiguity between the Pledge and Guaranty. At trial, Simon testified that at all times he believed that he was relinquishing his Subrogation Rights and, based on this belief, never filed a proof of claim against Debtor’s estate even though he satisfied amounts owed to CIT in excess of the Transfer. The Bankruptcy Court again held in Simon’s favor, and the District Court affirmed. An appeal to the Ninth Circuit followed. In a majority opinion, the Ninth Circuit affirmed the holding of the District Court.
The Ninth Circuit began by agreeing that the Pledge and Guaranty were ambiguous as to whether Simon unconditionally waived his Subrogation Rights, and therefore, additional evidence was necessary to determine Simon’s intent. The Ninth Circuit went on to find that the Bankruptcy Court did not err in finding that Simon unconditionally waived his Subrogation Rights based on his oral testimony at trial, and the fact that he did not subsequently file a proof of claim to recoup any amounts paid to CIT in satisfaction of the amount owed.
Turning to the legal issue, the Ninth Circuit analyzed the differing results reached by the lower courts with respect to the effect of waivers of subrogation rights by insiders on preference liability. Case law relied upon by the Chapter 7 trustee1, who replaced the Committee as Plaintiff upon conversion of the Debtor's case to Chapter 7, utilized an equitable policy based approach to conclude simply that waivers of subrogation rights are sham agreements and are not valid, as they allow for an insider guarantor to escape preference liability but then purchase the debt directly from the lender. The guarantor would then step into the lender’s shoes and assert a claim directly rather than by way of subrogation without fear of suffering later claw-back. In contrast, case law relied upon by Simon applies2 the plain language of the Bankruptcy Code to the specific facts of the case and stands for the proposition that bona fide waivers of subrogation and indemnification rights are valid and excuse an insider guarantor from preference liability, as such a waiver eliminates any legally cognizable claim the guarantor may have against the debtor and divests the guarantor of creditor status.
There was no evidence that the debt to CIT was the only debt that Simon guaranteed on the Debtor’s behalf, and Simon would receive no benefit by paying off CIT in full over other similar debts.
The Ninth Circuit concluded by noting that it was not at liberty to ignore a clearly drafted statute based on policy concerns. Because Simon waived his Subrogation Rights from the Debtor and was not a creditor, nothing in the Bankruptcy Code could subject Simon to preference liability simply because he received a benefit from the Transfer.
1Miller v. Greystone Business Credit II, LLC (In re USA Detergents, Inc.), 418 B.R. 533 (Bankr. D. Del. 2009); Russell v. Jones (In re Pro Page Partners, LLC), 292 B.R. 622 (Bankr. M.D. Tenn. 2003); Telesphere Liquidating Trust v. Galesi (In re Telesphere Comm., Inc.), 229 B.R. 173 (Bankr. N.D. Ill. 1999).
2O’Neil v. Orix Credit Alliance, Inc. (In re N.E. Contracting Co.), 187 B.R. 420 (Bankr. D.Conn. 1995); Hostmann v. First interstate Bank of Or., N.A. (In re XTI Xonix Techs. Inc.), 156 B.R. 821 (Bankr. D.Or. 1993); Hendon v. Assoc. Comm. Corp. (In re Fastrans), 142 B.R. 241 (Bankr. E.D. Tenn. 1992).

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The seminal Supreme Court case addressing patent eligibility for composition of matter claims in the Life Sciences space is Myriad. See Assoc.’n for Molecular Pathology v. Myriad Genetics, Inc., 569 U.S. 576 (2013). Certain of the patent claims at issue in Myriad were drawn to “an isolated DNA coding for a BRCA1 polypeptide, which has the amino acid sequence set forth in SEQ ID No. 2.” Id. at 584 (internal quotations omitted). The Court held that such claims were drawn to patent ineligible subject matter. Id. at 591-94. The Court reasoned as follows: “The location and order of the nucleotides [comprising the BRCA1 and BRCA2 genes] existed in nature before Myriad found them. … Myriad’s principal contribution was uncovering the precise location and genetic sequence of the BRCA1 and BRCA2 genes … separating that gene from its surrounding genetic material is not an act of invention.” Id. at 590-91. The Court, however, found certain other of the claims at issue, directed to BRCA cDNA, to constitute patent eligible subject matter because, according to the Court, “creation of a cDNA sequence from mRNA results in an exons-only molecule that is not naturally occurring.” Id. at 594-95.
The Court in Myriad, in connection with its patent ineligibility holding, expressly pointed out that the claims were drawn to compositions of matter and not methods. On this point, the Court comments (albeit in what was obviously dicta) that had “Myriad created an innovative method of manipulating genes while searching for the BRCA1 and BRCA2 genes, it could have sought a method patent … [b]ut [that] the processes used by Myriad to isolate DNA were well understood by geneticists at the time of Myriad’s patents.” Id. at 595-96.
In related litigation involving the same general technology but different patents, the Federal Circuit, the following year, analyzed patent eligibility for claims directed to “[a] pair of single-stranded DNA primers for determination of a nucleotide sequence of a BRCA1 gene by a polymerase chain reaction … wherein the use of said primers in a polymerase chain reaction results in the synthesis of DNA having all or part of the sequence of the BRCA1 gene.” In re BRCA1- and BRCA2-Based Hereditary Cancer Test Patent Litig., 774 F.3d 755, 759 (Fed. Cir. 2014). The court held that the claims were patent-ineligible, adopting reasoning analogous to that applied by the Supreme Court in Myriad. Id. at 759-61. Specifically, the court opined that primers are “necessarily … structurally identical to the ends of DNA strands found in nature.” Id. at 760. The court further noted that the claims at issue were not saved by virtue of the fact that single-stranded DNA cannot be found in nature because, according to the court, “separating [DNA] from its surrounding genetic material is not an act of invention.” Id.
The seminal Supreme Court case addressing patent eligibility for method claims is Mayo. Mayo Collaborative Servs. v. Prometheus Labs., Inc., 566 U.S. 66 (2012). The claims at issue in Mayo were directed to methods of optimizing therapeutic efficacy for treatment of an immune-mediated gastrointestinal disorder comprising: (a) administering the drug 6-thioguanine to a subject with such disorder; and b) determining the level of 6-thioguanine in said subject; and further recited that where the level of 6-thioguanine is less than about 230 pmol per 8×108 red blood cells, this indicates a need to increase the amount of the drug being administered and where the level is greater than about 400 pmol per 8×108 red blood cells, this indicates a need to decrease the amount being administered. Id. at 74-75. The Court held that the claims at issue were directed to patent ineligible subject matter; specifically, a law of nature. Id. at 77. The Court reasoned as follows: “[The patent claims at issue] set forth laws of nature—namely, relationships between concentrations of certain metabolites in the blood and the likelihood that a dosage of a thiopurine drug will prove ineffective or cause harm. … The relation is a consequence of the ways in which thiopurine compounds are metabolized by the body – entirely natural processes.” Id. The Court proceeded on to step two of the Alice/Mayo analysis and examined whether “the patent claims add enough to their statements of the correlations to allow the processes they describe to qualify as patent-eligible processes that apply natural laws[.]” Id. The Court held that the claims at issue failed to meet this standard as well. On this point, the Court held as follows: “[T]he claims inform a relevant audience about certain laws of nature; any additional steps consist of well-understood, routine, conventional activity already engaged in by the scientific community … For these reasons we believe that the steps are not sufficient to transform unpatentable natural correlations into patentable applications of those regularities.” Id. at 79-80. The Court also addressed preemption considerations, noting that the patent claims at issue “tie up the doctor’s subsequent treatment decision whether the treatment does, or does not, change in light of the inference he has drawn using the correlations … [and] threaten to inhibit the development of more refined treatment recommendations ….” Id. at 86-87.
In the same In re BRCA-1 and BRCA-2 Federal Circuit opinion discussed above in connection with composition of matter claims, the court also analyzed patent eligibility for claims drawn to methods for screening germline of a human subject for an alteration of the BRCA1 gene comprising comparing germline sequence from a subject’s BRCA1 DNA (or other genetic material) to wild-type using a hybridization method (claim 7) or an amplification and sequencing technique (claim 8). In re BRCA1- and BRCA2-Based Hereditary Cancer Test Patent Litig., 774 F.3d at 761. The court held that the claims at issue “are directed to the patent-ineligible abstract idea of comparing BRCA sequences and determining the existence of alterations … [by] merely comparing the patient’s gene with the wild-type and identifying the differences that arise.” Id. at 763. The court further opined that “allowing a patent on the comparison step could impede a great swath of research relating to the BRCA genes, and it is antithetical to the patent laws to allow these basic building blocks of scientific research to be monopolized.” Id. at 764. Under step two of the Mayo/Alice framework, the court held that the “non-patent-ineligible elements of claims 7 and 8 do not add enough to make the claims as a whole patent-eligible … [because such] elements … set forth well-understood, routine and conventional activity engaged in by scientists at the time….” Id. (internal citations and quotations omitted).
A number of other Federal Circuit opinions reached similar outcomes. For example, in Ariosa, the court invalidated claims drawn to methods for detecting a paternally inherited nucleic acid of fetal origin performed on a maternal serum or plasma sample from a pregnant female comprising amplifying a paternally-inherited nucleic acid from the serum or plasma sample and detecting the presence of a paternally inherited nucleic acid of fetal origin in the sample. Ariosa Diagnostics, Inc. v. Sequenom, Inc., 788 F.3d 1371, 1374, 1376 (Fed. Cir. 2015). The court held that the claims were based upon a natural phenomenon: paternally-inherited cffDNA taken from a female. Id. at 1376. The court further held that “[u]sing methods like PCR to amplify and detect cffDNA was well-understood, routine, and conventional activity … [and, therefore, the claimed methods are] not new and useful.” The court continued, “[t]he only subject matter new and useful as of the date of the application was the discovery of the presence of cffDNA in maternal plasma or serum.” Id. at 1377. In denying defendant-appellant’s petition for rehearing en banc, Judge Lourie authored a concurrence agreeing that the panel reached the correct decision under governing Supreme Court precedent. Ariosa Diagnostics, Inc. v. Sequenom, Inc., 809 F.3d 1282 (Fed. Cir. 2015). Judge Lourie takes issues with such precedent, however, commenting as follows: “[I]t is undisputed that before this invention, the amplification and detection of cffDNA from maternal blood, and the use of these methods for prenatal diagnoses, were not routine and conventional. But applying Mayo, we are unfortunately obliged to divorce the additional steps from the asserted natural phenomenon ….” Id. at 1286. In Genetic Techs., the Federal Circuit analyzed the patent eligibility of claims drawn to “method[s] for detection of at least one coding region allele of a multi-allelic genetic locus” performed by amplifying genomic DNA and analyzing the amplified DNA sequence. Genetic Techs. v. Merial LLC, 818 F.3d 1369, 1372 (Fed. Cir. 2016). The court held that such claims were directed to a patent ineligible natural phenomenon and that the method steps were “indisputably well-known, routine, and conventional.” Id. at 1378. In reaching its decision, the court relied heavily on Ariosa, stating, for example, the following: “The mental process of ‘performing a prenatal diagnosis’ based on the DNA detected is directly comparable to claim 1’s mental process of detecting an allele. The addition of this mental process step to the routine and conventional physical activity of amplification and analysis of DNA did not distinguish claims 21 and 25, which were invalidated….” Id. at 1379. In Cleveland Clinic, the Federal Circuit held that claims directed to “method[s] of assessing a test subject’s risk of having atherosclerotic cardiovascular disease,” comprising comparing levels of myeloperoxidase (“MPO”) in a bodily sample from a test subject with levels of MPO in a comparable sample from a control subject not having the disease were patent ineligible. Cleveland Clinic Found. v. True Health Diagnostics, 859 F.3d 1352, 1356, 1363 (Fed. Cir. 2017). The court reasoned that the patent claims at issue were directed to the “relation between cardiovascular disease and heightened MPO levels that exists in principle apart from human action [and, therefore,] are directed to a patent-ineligible law of nature.” Id. at 1361 (internal citations and quotations omitted). The court further held, under Mayo/Alice step 2, that “[t]he process steps here merely tell those interested in the subject about the correlations that the researchers discovered….” Id. at 1362 (internal quotations and citations omitted). In CellzDirect, by contrast, the Federal Circuit held the method claims at issue to be directed to patent eligible subject matter where such claims were drawn, generally, to “an improved process of preserving hepatocytes … compris[ing] (A) subjecting previously frozen and thawed cells to density gradient fractionation to separate viable cells from non-viable ones; (B) recovering the viable cells; and (C) refreezing the viable cells.” Rapid Litig. Management Ltd. V. CellzDirect, Inc., 827 F.3d 1042, 1045 (Fed. Cir. 2016). The court held that the claims at issue did not recite merely the ability of hepatocytes to survive multiple freeze-thaw cycles but rather a new and improved technique based on incorporating two successive freeze-thaw cycles. Id. at 1051-52. On this point, the court noted that while “[t]he individual steps of freezing and thawing were well known … a process of preserving hepatocytes by repeating those steps was itself far from routine and conventional.” Id. at 1051.
Most recently, in Vanda Pharms., the Federal Circuit analyzed the patent eligibility of claims drawn to methods for treating a patient with iloperidone comprising performing a genotyping assay to determine if the patient has a CYP2D6 poor metabolizer genotype and, depending on the outcome of that assay, administering a dose of the drug in one of two different ranges in order to minimize the risk of QTc prolongation. Vanda Pharms., Inc. v. West-Ward Pharms. Int’l Ltd., 887 F.3d 1117, 1121 (Fed. Cir. 2018). The court held that the claims were directed to patent eligible subject matter. Id. at 1136. The court based its holding on the fact that the claims at issue recite specific dosages. Id. The court noted that “[i]n contrast … the claim in Mayo stated that the metabolite level in blood simply ‘indicates’ a need to increase or decrease dosage, without prescribing a specific dosage regimen or other added steps to take as a result of that indication.” Id. at 1135. The court in Vanda continued that the claims at issue “recite more than the natural relationship between CYP2D6 metabolizer genotype and the risk of QTc prolongation … they recite a [specific] method of treating patients based on this relationship ….” Id. at 1136.
The Federal Circuit’s opinion in Vanda seems to be at odds to some degree with the Supreme Court’s earlier opinion in Mayo. As noted, Judge Lourie observed in his concurring opinion denying defendant-appellant’s petition for rehearing en banc in Ariosa, that “applying Mayo, we are unfortunately obliged to divorce the additional steps from the asserted natural phenomenon.” Ariosa, 809 F.3d at 1286. In Vanda, if the natural phenomenon was divorced from the modest method steps recited in the claim, it seems that the claims may well have been held invalid under § 101. In Vanda, the Federal Circuit appears to have afforded itself the latitude to arrive at its holding by viewing Mayo as based on abstractness and finding that the dosage limitations recited in the claims at issue in Vanda made the claims sufficiently more concrete to avoid the § 101 holding. The holding in Mayo, however, was in fact couched in terms of a natural phenomenon; and, when this is taken into consideration, the fact that dosage limitations were recited would not seem to be grounds for distinguishing Mayo. It may be that the Federal Circuit in Vanda viewed Mayo as concerned with abstractness in order to avoid both having to find the claims at issue invalid for patent ineligibility as well as the substantial potential negative repercussions such a holding would have for method of treatment claims generally given that, as a class, such claims typically relate to some sort of natural phenomenon.
As reflected in the case law discussed above, the current governing law with respect to patent eligibility for composition of matter patent claims relating to Life Sciences technology is that such claims are patent eligible if and only if the subject matter, as claimed, cannot be found in nature. While there is some degree of ambiguity as to the current state of the law of patent eligibility as applied to Life Sciences-related method claims, one fair interpretation is that, where such claims are directed to a natural phenomenon, a law of nature, and/or an abstract idea, they must recite elements sufficiently concrete and novel/nonobvious in order to avoid invalidation under § 101 (consistent with Mayo/Alice jurisprudence generally); though under Vanda, there appears to be a judicially-created safe harbor for method of treatment patent claims with respect to the natural phenomenon/law of nature aspects of step one of the Mayo/Alice framework.
Pardon my correction of some elementary misunderstandings in this article.
In Myriad, BRCA1 did not qualify as a composition of matter. Quoting the MPEP: “A composition of matter is a ‘combination of two or more substances and includes all composite articles.”’Digitech, 758 F.3d at 1348-49, 111 USPQ2d at 1719. As isolated BRCA1 is part of a longer sequence of genetic material which has been notionally cut and then isolated, but does not involve any other substance, it plainly does not qualify under this category. The remark that the discovery, by itself, does not render the BRCA genes “new . . . composition[s] of matter,” §101, that are patent eligible was per incuriam, and Justice Thomas ought to have referred to “manufacture”.
If eligible at all, isolated BRCA1 would be as a manufacture. In order to understand that category in relation to natural products it is necessary to become thoroughly familiar with Hartranft v. Wiegmann121 U. S. 609, 121 U. S. 615 (1887) and the various examples given in that case. It was cited both in Chakrabarty and in Myriad. The take away message is that an article does not become a manufacture simply on change of form or on isolation from impurities But such a change suffices if accompanied by the additional reason of new utility. The key is difference + new utility. There was no sufficient new utility associated with isolated BRCA1 that would have justified eligibility, especially since the claim read onto a single isolated nucleotide strand, and no more. This line of reasoning is strongly supported by the words “merely because” or “simply because” which occur at the beginning and end of the Thomas opinion.
The reason the Mayo case failed was that the two novel features were in an ineligible category, being mere information or instructions but nothing more and did not contribute a transformative character to the claimed process. if the claims had been directed to a method of treating patients with thiopurine drugs the result would have been otherwise. It is very notable that the Mayo court was concerned not to upset the framework for natural product patenting and method of administration claims generally in the pharmaceutical industry because that would have had far-reaching repercussions. Would the patent on streptomycin have been held valid on some of the more far-reaching interpretations put forward in the aftermath.
Any reason(s) the Vanda claiming approach would not be available for other technologies / arts, including the computing / software tech / arts?
Thank you for your question. Method/process claims structured as (1) step A; followed by (2) step B1 or step B2, depending on the outcome of step A, are common across many different technologies, including computer software.


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McCutcheon - Unlimited Bribery. Unlimited Corruption.
On April 2, 2014, the Supreme Court’s ruling in McCutcheon v. FEC gutted a long-standing law that protects our country from unbridled political corruption. That means more influence for people who can write fat campaign checks, and less for everyone else.
The supreme court’s ruling in McCutcheon v. FEC allows for nearly unlimited political contributions. Before McCutcheon, the most any one person could give to federal candidates in a given election cycle was $123,000 — That’s more than twice what the average American family makes in an entire year. The McCutcheon ruling means that now, one person can write a multi-million-dollar check to buy influence with candidates.
Bribery, right at your fingertips.
With McCutcheon, you can spend as much money as you want to bend the laws of the most powerful nation on earth to your will.
Before the McCutcheon ruling, there was an aggregate limit of $48,600 on contributions to federal candidates. That means that you’d be legally barred from donating 1,000 bucks each to 49 different candidates for Congress, because that $49,000 in total contributions would put you over the aggregate cap.
This same principle applied when it came to national party committees and other political action committees (PACs), but with a higher aggregate limit of $74,600. The two combined for a total aggregate of $123,200 per election.
At least, that’s how it used to work, because the Supreme Court just made the aggregate limit history.
The free-est speech money can buy.
McCutcheon puts unprecedented power in the hands of the 646 people (0.0002% of the U.S. population) who were affected by the aggregate cap in the last election.
Massive buying power, uncapped at last.
McCutcheon abolishes those pesky aggregate caps, so you can buy as much representation as you can afford.
No aggregate cap means that one person can now write a $3.5 million check to something called a Joint Fundraising Committee (JFC), which raises money for multiple candidates at once.
That means a big donor could go to the head of a JFC and says “Gee, I’d sure love to send this $3.5 million your way, but I can’t do that until I’m sure none of it will go to candidates who support closing a tax loophole I like.” Suddenly, the head of that JFC has 3.5 million reasons to call up every single member of his party and make sure that everyone is on the same page about keeping that tax loophole open for another couple of years.
It gets worse. The Supreme Court also struck down the aggregate limit on donations to political action committees, or PACs. And PACs can give money directly to candidates. This is what makes McCutcheon v. FEC one of the absolute worst Supreme Court decisions of all time.
Because while there’s a limit on how much PACs can give to each candidate, there’s no limit on the number of PACs that can exist. Without the aggregate limit, one donor can now give $5,000 each to 1,000 different PACs. And those 1,000 PACs can turn around and funnel that money straight to one candidate. Which means that one candidate could haul in $5 million in direct contributions from one donor.
It used to be that the most a donor could show up with was $123,000. Now, big donors can spend more money than most Americans will make in their entire lives to make sure our elected leaders answer to them.
With McCutcheon, even this guy will take your calls.
The Supreme Court’s ruling in McCutcheon v. FEC will allow enormous amounts of money to corrupt our politics and marginalize average Americans. Now more than ever, we need tough new anti-corruption reforms like those outlined in the American Anti-Corruption Act in order to ensure equal representation for every American. We, the people, should not have to buy access to our own government. If you won't make meaningful anti-corruption reform a priority, we will elect new leaders who will.
The Supreme Court just decided an incredibly important case called McCutcheon v. Federal Election Commission (FEC), which looked at the question of whether aggregate campaign contribution limits… You’re already bored, aren’t you?
Let’s try this instead: Imagine you’re rich.
See? We’re having more fun already.
Like most Americans, rich you has all kinds of opinions on the way things ought to work in this country. But unlike most Americans, rich you is, well, rich. That means that if you want to influence the political process, you have options outside of signing petitions or calling your Congresspersons’ office to yell at one of the interns.
The most direct route is to use your money to fund political campaigns. In this day and age, members of Congress don’t get to be members of Congress without spending some serious money first. That’s where you come in.
Now of course, there are rules. Federal law sets certain limits, so you can’t just go write a candidate a check for a million dollars and call it a day. That means you, dear hypothetical rich person, can’t give more than $2600 to any one candidate per election. Even if you were to donate once in the primary election and again in the general, the absolute most you could give to an individual candidate’s campaign is $5,200.
Just giving that much would put you in a very exclusive club. In the last election cycle, a miniscule 0.08% of the population made more than $2,500 in political contributions. This isn’t terribly surprising once you consider that the absolute maximum donation of $5,200 per candidate per election cycle is more than the average American family makes in an entire month.
But if you’re part of that 0.08% of the population that has money to burn on political giving, why stop at one candidate? Why not dole out $5000 bucks to a hundred different candidates just to be safe? That's where McCutcheon v. FEC comes in.
Before the McCutcheon ruling, there was also an aggregate limit of $48,600 on contributions to candidates. That means that you’d be legally barred from donating 1,000 bucks each to 49 different candidates, because even though those $1000 donations are below the individual candidate limit, that $49,000 in total contributions would put you over the aggregate cap.
This same principle applies when it comes to national party committees and other political action committees, but with a higher aggregate limit of $74,600. The important thing to remember here is that if you want to buy political influence, your ability to make direct contributions maxes out at $48,600 to candidates and $74,600 to Political Action Committees (PACs) — for a total of $123,200.
At least, that’s how it used to work, because the Supreme Court just made the aggregate limit history. Since the individual cap is still in place, that might not sound like a huge deal. After all, if giving $1,000 bucks to 48 different candidates isn’t an issue, why would giving $1,000 to 49 be any worse?
That was McCutcheon’s argument, and it’s one that the Supreme Court clearly bought. But this is where thing get upsetting, because it’s the clearest indication yet that the current majority in the Supreme Court has no earthly idea how money in politics actually works.
That “48 is fine, why is 49 bad?” argument sounds reasonable on its face, but it doesn’t account for an everyday reality of modern campaign finance called the joint fundraising committee (JFC). Joint fundraising committees let political operatives haul in huge checks from big donors, then distribute them out to candidates and PACs.
It used to be that the most a donor could show up with was $123,000, as mandated by the aggregate limit. Now, one donor can cut a $3.5 million dollar check to a joint fundraising committee. The kind of people who are willing to drop more money than most Americans will make in their entire lives on one election can now wield enormous leverage over entire political parties.
Suddenly, the operative in charge of that JFC has 3.5 million reasons to call up every single member of his party and make sure that everyone is on the same page about keeping that tax loophole open for another couple of years. At which point everyone has to raise money to run for office again, and the whole cycle starts over.
The Supreme Court also struck down the aggregate limit on donations to political action committees, or PACs, which can give money directly to candidates. This, ladies and gentlemen, is what makes McCutcheon v. FEC one of the absolute worst Supreme Court decisions of all time.
Because while there’s a limit on how much PACs can give to each candidate, there’s no limit on the number of PACs that can exist. Without the aggregate limit, one donor can now give $5,000 each to 1000 different PACs. And those 1000 PACs can turn around and funnel that money straight to one candidate. Which means that one candidate could haul in $5 million in direct contributions from one donor. That’s a level of political corruption this country hasn’t seen in more than a century.
I’m not going to sit here and try to spin this as anything other than a horrible ruling. But truth be told, all the Supreme Court did was make a terrible situation marginally more terrible.
Even if McCutcheon had gone the other way, we’d still be living in a country where the people who can throw campaign fundraisers and hire lobbyists get better treatment from our elected leaders than the people who can’t. But if there’s one silver lining to all of this, it’s that more and more people are refusing to accept that this is the way our country should work.
Today, as the ruling was handed down, people all across the country turned out at over 100 events nationwide in protest. This wasn’t some fluke — a coalition of over 20 public interest groups staffed by intelligent, passionate, and dedicated people helped bring it together. And even more importantly, even in our current political climate of breathtaking cynicism and House of Cards, Americans from every corner of this country still decided to show up and take a stand. And more people are joining them every single day.
On days like today, it’s hard not to feel like we’re losing that republic. But our republic can’t be truly lost until the people stop fighting to keep it.
From what I’ve seen, that fight is only just beginning.


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In American Association of Political Consultants, Inc. v. FCC, the Fourth Circuit yesterday held unconstitutional an exemption from the federal ban on automated calls to cellphones. This exemption authorized automated calls that relate to the collection of debts owed to or guaranteed by the federal government. In an opinion joined by Judges Keenan and Quattlebaum, Judge King wrote that the exemption was content-based and failed strict scrutiny, but that it could be severed. The result is that the plaintiffs' political calls remain subject to the general ban.
The Fourth Circuit panel seems to have been tripped up in entanglements among standing, substantive constitutional law, and severability. As a matter of standing, the plaintiffs are injured by the ban, not the exemption for federal debt collections. As a matter of substantive constitutional law, the ban and its exemptions form a single unit for purposes of constitutional analysis. The challenge is to a content-based restriction on speech, not to the exemption itself. If this challenge succeeds, there is no work for severability to do in separating the ban from the exemption; the whole unit is unconstitutional. Severability would keep the rest of the TCPA intact, but the content-based ban should fall because of the exemption it contains.
The proviso protecting picketing of schools involved in a labor dispute renders the ban content-based. There is not a first-step consideration of the proviso on its own followed by a second-step severability inquiry.
As authoritatively construed by state courts, this ordinance extended only to fighting words, which are constitutionally unprotected. The ordinance was nevertheless subject to strict scrutiny because of its content discrimination ("on the basis of race, color, creed, religion, or gender") within the otherwise unprotected class. Similarly, a blanket prohibition on robocalls may be perfectly fine on its own, unconstitutional if exemptions from the prohibition render it content-based.
In any event, I'm guessing this is not the last we'll see of this issue. In addition to the plaintiffs in the Fourth Circuit case who are smarting from their Pyrrhic victory, I expect that robocallers in the Fourth Circuit may also be alarmed. "Severance" of the statutory provision making their conduct legal means that their robocalls will be subject to the general ban. That's not how this should have gone. But now that it has, it's going to take some more lawyer and judge time to sort things out.
MOJ at 15: The end of the beginning?
We are fast approaching the fifteenth anniversary of the first post at Mirror of Justice.
It feels very different from the tenth anniversary. Then, there were many anniversary-reflection posts from MOJers old and new. These reflections varied in orientation but were largely hopeful.
Now, I expect there will be fewer. And the hope they have to offer will probably not be for the future of this particular group blog.
Is it time for Mirror of Justice to give up the ghost?
I ask explicitly and publicly in order to provoke honest answers from our contributors.
My answer is yes, for reasons that I aim to elaborate over my next few posts. But perhaps I am wrong.
Not completely inaccurate predictively, I suppose. There have been fewer anniversary posts at 15 than at 10, and they express appropriate uncertainty about the future. But while the posts have been less than confident about the best path forward for this particular blog, they have been more hopeful than I expected about the worth of continuing the undertaking.
I am particularly grateful for the anniversary posts by Greg Sisk and Susan Stabile. Greg writes, "As long as the blogosphere continues, something like the Mirror of Justice is needed. I pray for another fruitful 15 years." Susan "remain[s] convinced of the importance of the enterprise in which we have been engaged for the last fifteen years.
Howard Wasserman's gracious post at PrawfsBlawg was also most welcome."MoJ serves a particular and special message that is not easily replaced," he writes, "and so should continue."
These observations make me think I might have been wrong in my earlier private musings about the practical wisdom of ending this collective project any time soon.
Instead of speculating about the end of MOJ, then, I'll conclude this anniversary-week post with a few thoughts on the blog's beginning.
(1) From today's perspective, the inaugural MOJ post radiates an anticipatory defensiveness of a sort that now seems quaint: "The members of this blog group represent a broad spectrum of Catholic opinion." How nice.
(2) The group members all believe that "faith-based discourse is entirely legitimate in the academy and in the public square, and that religious values need not be bracketed in academic or public conversation." Too bad that needed to be said; perhaps we can better realize now how fragile were the foundations of the consensus position we were challenging even while we were accepting it as obviously legitimate in some way.
(3) "We may differ on how such values should be expressed or considered in those conversations or in public decisionmaking." Probably not as true now, which is all to the good.
Roe will probably be reversed even further than before; the real combat is over Casey.
Like our law of slavery once was, abortion law in the United States today is a function of human positive law -- law that can be made and unmade by human will.
As a judicially constructed constraint on legislated protection of vulnerable human life, Roe v. Wade is particularly pernicious. With the upcoming change in the Supreme Court's composition, Roe probably will and definitely should be overruled even further than it already has been.
Recognition of this new likelihood is compatible with the observation that some of those trying to raise an alarm about "the reversal of Roe v. Wade" are engaged in disingenuous scaremongering. Abortion-friendly legal types have long known how election- and appointment-dependent their hold on abortion law has been, especially with respect to legal protections for life later in pregnancy. And that's where the upcoming judicial action will be.
Although many believe that our constitutional law of abortion is all about Roe v. Wade, they are wrong. Planned Parenthood v. Casey is much more important.
Casey is the 1992 decision in which a majority of the Supreme Court partially overruled Roe while a plurality purported to preserve its "central holding." To accomplish this feat, the plurality developed a new take on stare decisis that Justice Scalia accurately described in dissent as a "keep-what-you-want-and-throwaway-the-rest version."
The Casey plurality discarded Roe's trimester framework and acknowledged the permissibility of post-viability abortion prohibitions. In place of Roe, Justices O'Connor, Kennedy, and Souter substituted an "undue burden" standard of review for laws limiting pre-viability abortions.
The Justices have sparred over application of Casey's undue burden standard ever since. That is unsurprising given how unstable a legal standard "undue burden" is in the culturally and politically fraught context of abortion law.
The identity of the Justices applying it has been the single variable most predictive of the results this standard delivers. That is exactly why it's no good for the impartial administration of law and needs to go.
The most recent opinion for the Court in this area is Justice Breyer's in Whole Woman's Health v. Hellerstedt. By 5-3 vote (Garland's nomination was pending), the Court in Hellerstedt held unconstitutional some Texas health and safety regulations for abortion clinics. If Gorsuch had been on the Court together with any one of the potential nominees on President Trump's short list now, Whole Woman's Health would have come out the other way. The Supreme Court would have affirmed rather than reversed the decision under review. That decision would not have required overruling any more of Roe, just applying the undue burden standard from Casey more like the court of appeals did.
It is impossible to know what abortion-law case the Supreme Court will take up next. But it is reasonable to believe that the case's correct decision may require overruling Roe further than Casey did. If the Court decides to review the constitutionality of a state law prohibiting abortion after twenty weeks, for example, the Court should abandon the line that Casey drew at viability.
This shift would not be avulsive. An unborn baby at twenty weeks gestational age is obviously as much a human being worthy of positive-law protection as one at twenty-four weeks gestational age.
Abortion-friendly activists are understandably uneasy these days. But their real concern should not be Roe's further demise. They should worry, instead, that the pro-life movement will continue to win hearts and minds for the principle of human equality that justifies judicial abandonment of Casey's viability line. And they can now expect the Supreme Court's unjust abortion opinions to erode at the same pace.
Bainbridge's "Thoughts on the Passing of a Friend and Colleague"
[A]s a Catholic, a passing is a wake up call. First, to honor and remember the friend by praying for the repose of their soul. Second, to evaluate my own inner spiritual life and then seek Reconciliation. Third, to commit some act of charity in remembrance of the friend. Fourth, to bear up the living in love and prayer. To reach out to those we have wronged or who have wronged us and be reconciled.
There has been some talk recently about a papal interview with a journalist. One of my favorite such interviews has been organized in God and the World. It is a conversation between then-Cardinal Ratzinger, Pope Benedict XVI, and Peter Seewald.
We are used to thinking of suffering as something we try to avoid at all costs. And there is nothing that many societies get more angry about than the Christian idea that one should bear with pain, should endure suffering, should even sometimes give oneself up to it, in order thereby to overcome it. "Suffering," John Paul II believes, "is a part of the mystery of being human." Why is this?
Today what people have in view is eliminating suffering from the world. For the individual, that means avoiding pain and suffering in whatever way. Yet we must also see that it is in this very way the world becomes very hard and very cold. Pain is part of being human. Anyone who really wanted to get rid of suffering would have to get rid of love before everything else, because there can be no love without suffering, because it always demands an element of self-sacrifice, because, given temperamental differences and the drama of situations, it will always bring with it renunciation and pain.
When we know that the way of love---this exodus, this going out of oneself---is the true way by which man becomes human, then we also understand that suffering is the process through which we mature. Anyone who has inwardly accepted suffering becomes more mature and more understanding of others, becomes more human. Anyone who has consistently avoided suffering does not understand other people; he becomes hard and selfish.
Love itself is a passion, something we endure. In love I experience first a happiness, a general feeling of happiness. Yet, on the other hand, I am taken out of my comfortable tranquility and have to let myself be reshaped. If we say that suffering is the inner side of love, we then also understand why it is so important to learn how to suffer---and why, conversely, the avoidance of suffering renders someone unfit to cope with life. He would be left with an existential emptiness, which could then only be combined with bitterness, with rejection, and no longer with any acceptance or progress toward maturity.
What would actually have happened if Christ had not appeared and if he had not died on the tree of the Cross? Would the world long since have come to ruin without him?
That we cannot say. Yet we can say that man would have no access to God. He would then only be able to relate to God in occasional fragmentary attempts. And, in the end, he would not know who or what God actually is.
Something of the light of God shines through in the great religions of the world, of course, and yet they remain a matter of fragments and questions. But if the question about God finds no answer, if the road to him is blocked, if there is no forgiveness, which can only come with the authority of God himself, then human life is nothing but a meaningless experiment. Thus, God himself has parted the clouds at a certain point. He has turned on the light and has shown us the way that is the truth, that makes it possible for us to live, and that is life itself.
"How to keep 'em content in Lent"?
We can't serve dishes made with quick-melting Ched-O-Bit any more, so I'll be running out later today to pick up some tomato soup instead. No need to wait, though to enjoy Amy Welborn's "Gallery of Regrettable Lenten Food."
A taste of the advertising copy: "Is Lent a Problem? 'No!' ... says Chef Ernest Cuony of New York's Fashionable Hotel Barclay. 'You've shown me, Mrs. America, that it's not necessary to sacrifice deliciousness and flavor in order to 'toe the mark' during Lent. As a matter of fact, your pure, wholesome, delicate-flavored WESSON OIL gives--how you say it?--'oomph' to even every-day dishes.'"

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


Appellants brought this suit seeking, inter alia, to enjoin as violative of the Fourteenth Amendment enforcement of a Michigan statute under which appellee school board and other county school boards are chosen not by the electors of the county, but by delegates from the local boards from candidates nominated by school electors. A three-judge district court, rejecting appellants' contention that the system paralleled the county-unit system invalidated in Gray v. Sanders, 372 U. S. 368, dismissed the complaint.
1. A three-judge court was properly convened, since the challenged statute has general and statewide application. Moody v. Flowers, ante, p. 387 U. S. 97, distinguished. P. 387 U. S. 107.
2. There is no constitutional reason why nonlegislative state or local officials may not be chosen otherwise than by elections. The functions of appellee school board are essentially administrative, and the elective-appointive system used to select its members is well within the State's latitude in the selection of such officials. Pp. 387 U. S. 107-111.
a county board of five members, who need not be members of the local boards, [Footnote 2] from candidates nominated by school electors. It is argued that this system of choosing county board members parallels the county unit system which we invalidated under the Equal Protection Clause of the Fourteenth Amendment in Gray v. Sanders, 372 U. S. 368, and violates the principle of "one man, one vote" which we held in that case and in Reynolds v. Sims, 377 U. S. 533, was constitutionally required in state elections. A vast array of facts is assembled showing alleged inequities in a system which gives one vote to every local school board (irrespective of population, wealth, etc.) in the selection of the county board. A three-judge court was convened, and it held by a divided vote that the method of constitution of the county board did not violate the Fourteenth Amendment. 254 F.Supp. 17. We noted probable jurisdiction, 385 U.S. 966.
We conclude that a three-judge court was properly convened, for, unlike the situation in Moody v. Flowers, ante, p. 387 U. S. 97, this is a case where the state statute that is challenged [Footnote 3] applies generally to all Michigan county school boards of the type described.
instrumentalities created by the State to assist in the carrying out of state governmental functions. As stated by the Court in Hunter v. City of Pittsburgh, 207 U. S. 161, 207 U. S. 178, these governmental units are 'created as convenient agencies for exercising such of the governmental powers of the State as may be entrusted to them,' and the 'number, nature and duration of the powers conferred upon [them] . . . and the territory over which they shall be exercised rests in the absolute discretion of the State.'"
We find no constitutional reason why state or local officers of the nonlegislative character involved here may not be chosen by the governor, by the legislature, or by some other appointive means, rather than by an election. Our cases have, in the main, dealt with elections for United States Senator or Congressman (Gray v. Sanders, supra; Wesberry v. Sanders, 376 U. S. 1) or for state officers [Footnote 4] (Gray v. Sanders, supra) or for state legislators. Reynolds v. Sims, supra; WMCA, Inc. v. Lomenzo, 377 U. S. 633; Davis v. Mann, 377 U. S. 678; Roman v. Sincock, 377 U. S. 695; Lucas v. Colorado Gen. Assembly, 377 U. S. 713; Marshall v. Hare, 378 U. S. 561.
"The science of government is the most abstruse of all sciences; if, indeed, that can be called a science which has but few fixed principles, and practically consists in little more than the exercise of a sound discretion, applied to the exigencies of the state as they arise. It is the science of experiment."
If we assume arguendo that, where a State provides for an election of a local official or agency, the requirements of Gray v. Sanders and Reynolds v. Sims must be met, we are still short of an answer to the present problem, and that is whether Michigan may allow its county school boards to be appointed.
When we stated ". . . the state legislatures have constitutional authority to experiment with new techniques" (Day-Brite Lighting, Inc. v. Missouri, 342 U. S. 421, 342 U. S. 423), we were talking about the Due Process Clause of the Fourteenth Amendment, as was Mr. Justice Holmes, dissenting in Lochner v. New York, 198 U. S. 45, 198 U. S. 75, when he said ". . . a constitution is not intended to embody . . . the organic relation of the citizen to the State. . . ." But as we indicated in Gomillion v. Lightfoot, supra, it is precisely that same approach that we have taken when it comes to municipal and county arrangements within the framework of a State. Save and unless the state, county, or municipal government runs afoul of a federally protected right, it has vast leeway in the management of its internal affairs.
a State may constitute a local legislative body through the appointive, rather than the elective, process. We reserve that question for other cases such as Board of Supervisors v. Bianchi, ante, p. 387 U. S. 97, which we have disposed of on jurisdictional grounds. We do not have that question here, as the County Board of Education performs essentially administrative functions; [Footnote 7] and while they are important, they are not legislative in the classical sense.
urban conditions. We see nothing in the Constitution to prevent experimentation. At least as respects nonlegislative officers, a State can appoint local officials or elect them or combine the elective and appointive systems as was done here. If we assume arguendo, that, where a State provides for an election of a local official or agency -- whether administrative, legislative, or judicial -- the requirements of Gray v. Sanders and Reynolds v. Sims must be met, no question of that character is presented. For while there was an election here for the local school board, no constitutional complaint is raised respecting that election. Since the choice of members of the county school board did not involve an election, and since none was required for these nonlegislative offices, the principle of "one man, one vote" has no relevancy.
In Michigan, the members of the local school district's board are elected by popular vote of the residents of the district. See Mich.Stat.Ann. § 15.3023 (1959); Mich.Stat.Ann. §§ 15.3027, 15.3055, 15.3056, 15.3107, 15.3148, 15.3188, 15.3511 (Supp. 1965).
Mich.Stat.Ann. §§ 15.3294(1), 15.3295(1) (Supp. 1965). By Mich.Stat.Ann. §§ 15.3294(2)-15.3294(6) (Supp. 1965), members of the county board may be chosen at popular elections provided the board submits the matter to a referendum and the people approve. So far as we are advised, no such referendum has been held, and the membership of the county board, here challenged, was constituted by electors chosen by the local boards.
Mich.Stat.Ann. § 15.3294(1) (Supp. 1965).
Nor can the restraints imposed by the Constitution on the States be circumvented by local bodies to whom the State delegates authority. Standard Computing Scale Co. v. Farrell, 249 U. S. 571, 249 U. S. 577; Cooper v. Aaron, 358 U. S. 1, 358 U. S. 17.
The delegates from the local school boards, not the school electors, select the members of the county school board. While the school electors elect the members of the local school boards and the local school boards, in turn, select delegates to attend the meeting at which the county board is selected, the delegates need not cast their votes in accord with the expressed preferences of the school electors. There is not even a formal method by which a delegate can determine the preferences of the people in his district. It is evident, therefore, that the membership of the county board is not determined, directly or indirectly, through an election in which the residents of the county participate. The "electorate" under the Michigan system is composed not of the people of the county, but the delegates from the local school boards.
The authority of the county board includes the appointment of a county school superintendent (Mich.Stat.Ann. § 15.3298(1)(b) (Supp. 1965)), preparation of an annual budget and levy of taxes (Mich.Stat.Ann. § 15.3298(1)(c) (Supp. 1965)), distribution of delinquent taxes (Mich.Stat.Ann. § 15.3298(1)(d) (Supp. 1965)), furnishing consulting or supervisory services to a constituent school district upon request (Mich.Stat.Ann. § 15.3298(1)(g) (Supp. 1965)), conducting cooperative educational programs on behalf of constituent school districts which request such services (Mich.Stat.Ann. § 15.3298(1)(i) (Supp. 1965)), and with other intermediate school districts (Mich.Stat.Ann. § 15.3298(1)(j) (Supp. 1965)), employment of teachers for special educational programs (Mich.Stat.Ann. § 15.3298(1)(h) (Supp. 1965)), and establishing, at the direction of the Board of Supervisors, a school for children in the juvenile homes (Mich.Stat.Ann. § 15.3298(1)(k) (Supp. 1965)). One of the board's most sensitive functions, and the one giving rise to this litigation, is the power to transfer areas from one school district to another. Mich.Stat.Ann. § 15.3461 (1959).


Hawaii Land Use Law and Policy: Should the Government Pay a Landowner for Its Failed Attempt to Condemn a Landowner's Property?
Should the Government Pay a Landowner for Its Failed Attempt to Condemn a Landowner's Property?
The Hawaii Supreme Court recently heard oral arguments in Hawaii County v. Richards, Haw. Sct. Doc. No. 28822.
Appealing from the Third Circuit Court (Civil No. 00-1-181K), Richards contends that the Circuit Court erred in failing to award him statutory damages after the County attempted, but failed, to condemn Richards' private property.
Defendant allowed damages upon abandonment or dismissal of proceedings. Whenever any proceedings instituted under this part are abandoned or discontinued before reaching a final judgment, or if, for any cause, the property concerned is not finally taken for public use, a defendant who would have been entitled to compensation or damages had the property been finally taken, shall be entitled, in such proceedings, to recover from the plaintiff all such damage as may have been sustained by the defendant by reason of the bringing of the proceedings and the possession by the plaintiff of the property concerned if the possession has been awarded including the defendant's costs of court, a reasonable amount to cover attorney's fees paid by the defendant in connection therewith, and other reasonable expenses; and the possession of the property concerned shall be restored to the defendant entitled thereto. . . .
The County attempted to condemn Richards' property twice. The County's first attempt to condemn the property failed, because it was found not to have a "public purpose" as required by the takings clauses of the state (Haw. Const. art. I, § 20) and federal (US Const. amend. 5) constitutions. However, the County's second attempt to condemn Richards' property succeeded.
Richards argues that the phrase "finally taken" under HRS § 101-27 speaks to a single condemnation action; therefore, he is owed damages, costs, and fees under HRS § 101-27 from the County's first failed attempt. The County contends that HRS § 101-27 applies to all subsequent attempts to condemn the same property; therefore, since it succeeded on its second try, HRS § 101-27 should not apply to its first failed attempt.
Oral arguments were heard by the Hawaii Supreme Court on Thursday, October 16, 2008 - 9:00 A.M.
Ibarra upheld that decision in January 2008.
Then Charles & Joan Coupe filed their appeal with the Hawaii Intermediate Court of Appeals after the latter decision was officially recorded in April 2008.
to Hawaii Supreme Court in July.
This was done so this legal roadblock is extinguished in a more timely manner.
Thank you for the additional information, Aaron. I blogged only the question presented under the current appeal.
"In the appeal from the Amended Final Judgment in Civil No. 05-1-015K, Appellants maintain that the court erred in (1) denying their motion to dismiss for lack of subject matter jurisdiction under the doctrine of abatement and (2) declining to look beyond Appellee's asserted public purpose to determine if it was mere pretext. Appellee argues that (1) abatement does not apply because the property sought in Civil No. 05-1-015K was different from that sought in Civil No. 00-1-181K and (2) the court correctly found that the condemnation in Civil No. 05-1-015K was for a public purpose."


content-neutral laws of general applicability containing no indicia of prior restraint or the chilling of free speech. The Third Circuit accepted an interlocutory appeal, and the United States, also a petitioner, intervened to defend the federal Acts constitutionality. Applying intermediate scrutiny, the court found the statutes invalid because they deterred significantly more speech than necessary to protect the private interests at stake, and remanded the case with instructions to enter summary judgment for respondents.
Held: The First Amendment protects the disclosures made by respondents in this suit. Pp. 620.
(a) Title III of the Omnibus Crime Control and Safe Streets Act of 1968, as amended, generally prohibits the interception of wire, electronic, and oral communications. Title 18 U.S.C. § 2511(1)(a) applies to the person who willfully intercepts such communications and subsection (c) to any person who, knowing or having reason to know that the communication was obtained through an illegal interception, willfully discloses its contents. Pp. 69.
(b) Because of this suits procedural posture, the Court accepts that the interception was unlawful and that respondents had reason to know that. Accordingly, the disclosures violated the statutes. In answering the remaining question whether the statutes application in such circumstances violates the First Amendment, the Court accepts respondents submissions that they played no part in the illegal interception, that their access to the information was obtained lawfully, and that the conversations dealt with a matter of public concern. Pp. 910.
(c) Section 2511(1)(c) is a content-neutral law of general applicability. The statutes purpose is to protect the privacy of wire, electronic, and oral communications, and it singles out such communications by virtue of the fact that they were illegally interceptedby virtue of the source rather than the subject matter. Cf. Ward v. Rock Against Racism, 491 U.S. 781, 791. On the other hand, the prohibition against disclosures is fairly characterized as a regulation of speech. Pp. 1012.
(d) In New York Times Co. v. United States, 403 U.S. 713, this Court upheld the press right to publish information of great public concern obtained from documents stolen by a third party. In so doing, this Court focused on the stolen documents character and the consequences of public disclosure, not on the fact that the documents were stolen. Ibid. It also left open the question whether, in cases where information has been acquired unlawfully by a newspaper or by a source, government may punish not only the unlawful acquisition, but also the ensuing publication. Florida Star v. B. J. F., 491 U.S. 524, 535, n. 8. The issue here is a narrower version of that question: Where the publisher has lawfully obtained information from a source who obtained it unlawfully, may the government punish the ensuing publication based on the defect in a chain? The Courts refusal to construe the issue more broadly is consistent with its repeated refusal to answer categorically whether the publication of truthful information may ever be punished consistent with the First Amendment. Accordingly, the Court considers whether, given the facts here, the interests served by §2511(1)(c) justify its restrictions on speech. Pp. 1214.
(e) The first interest identified by the Governmentremoving an incentive for parties to intercept private conversationsdoes not justify applying §2511(1)(c) to an otherwise innocent disclosure of public information. The normal method of deterring unlawful conduct is to punish the person engaging in it. It would be remarkable to hold that speech by a law-abiding possessor of information can be suppressed in order to deter conduct by a non-law-abiding third party. In virtually all §2511(1)(a), (c), or (d) violations, the interceptors identity has been known. There is no evidence that Congress thought that the prohibition against disclosures would deter illegal interceptions, and no evidence to support the assumption that the prohibition reduces the number of such interceptions. Pp. 1416.
(f) The Governments second interestminimizing the harm to persons whose conversations have been illegally interceptedis considerably stronger. Privacy of communication is an important interest. However, in this suit, privacy concerns give way when balanced against the interest in publishing matters of public importance. One of the costs associated with participation in public affairs is an attendant loss of privacy. The profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide open supported this Courts holding in New York Times Co. v. Sullivan, 376 U.S. 254, that neither factual error nor defamatory content, nor a combination of the two, sufficed to remove the First Amendment shield from criticism of official conduct. Parallel reasoning requires the conclusion that a strangers illegal conduct does not suffice to remove the First Amendment shield from speech about a matter of public concern. Pp. 1620.
Stevens, J., delivered the opinion of the Court, in which OConnor, Kennedy, Souter, Ginsburg, and Breyer, JJ., joined. Breyer, J., filed a concurring opinion, in which OConnor, J., joined. Rehnquist, C. J., filed a dissenting opinion, in which Scalia and Thomas, JJ., joined.
*. Together with No. 991728, United States v. Vopper, aka Williams, et al., also on certiorari to the same court.


Section, act Aug. 14, 1935, ch. 531, title XI, § 1130, as added Oct. 20, 1972, Pub. L. 92–512, title III, § 301(a), 86 Stat. 945; amended July 9, 1973, Pub. L. 93–66, title II, § 221, 87 Stat. 159; Dec. 31, 1973, Pub. L. 93–233, § 18(j), 87 Stat. 970, set out limitations on funds for certain social services.
Repeal effective with respect to payments under sections 603 and 803 of this title for quarters commencing after Sept. 30, 1975, see section 7(b) of Pub. L. 93–647, set out as an Effective Date of 1975 Amendment note under section 303 of this title.
Subject to subsection (b), no regulation and no modification of any regulation, promulgated by the Secretary of Health, Education, and Welfare [now Health and Human Services] (hereinafter referred to as the ‘Secretary’) after January 1, 1973, shall be effective for any period which begins prior to October 1, 1975, if (and insofar as) such regulation or modification of a regulation pertains (directly or indirectly) to the provisions of law contained in section 3(a)(4)(A), 402(a)(19)(G), 403(a)(3)(A), 603(a)(1)(A), 1003(a)(3)(A), 1403(a)(3)(A), or 1603(a)(4)(A) of the Social Security Act [section 303(a)(4)(A), 602(a)(19)(G), 603(a)(3)(A), 803(a)(1)(A), 1203(a)(3)(A), 1353(a)(3)(A), or 1383(a)(4)(A) of this title].
The provisions of subsection (a) shall not be applicable to any regulation relating to ‘scope of programs’, if such regulation is identical (except as provided in the succeeding sentence) to the provisions of section 221.0 of the regulations(relating to social services) proposed by the Secretary and published in the Federal Register on May 1, 1973. There shall be deleted from the first sentence of subsection (b) of such section 221.0 the phrase ‘meets all the applicable requirements of this part and’.
The provisions of subsection (a) shall not be applicable to any regulation relating to ‘limitations on total amount of Federal funds payable to States for services’, if such regulation is identical (except as provided in the succeeding sentence) to the provisions of section 221.55 of the regulations so proposed and published on May 1, 1973. There shall be deleted from subsection (d)(1) of such section 221.55 the phrase ‘(as defined under day care services for children)’; and, in lieu of the sentence contained in subsection (d)(5) of such section 221.55, there shall be inserted the following: ‘Services provided to a child who is under foster care in a foster family home (as defined in section 408 of the Social Security Act [42 U.S.C. 608]) or in a childcare institution (as defined in such section), or while awaiting placement in such a home or institution, but only if such services are needed by such child because he is under foster care.’.
The provisions of subsection (a) shall not be applicable to any regulation relating to ‘rates and amounts of Federal financial participation for Puerto Rico, the Virgin Islands, and Guam’, if such regulation is identical to the provisions of section 221.56 of the regulations so proposed and published on May 1, 1973.
The provisions of subsection (a) shall not be construed to preclude the Secretary from making any modification in any regulation (described in subsection (a)) if such modification is technically necessary to take account of the enactment of section 301 or 302 of the Social Security Amendments of 1972 [enacting subchapters XVI and VI of this chapter].
Similar provisions were contained in the following prior act: Pub. L. 93–66, title II, § 220, July 9, 1973, 87 Stat. 158.
Pub. L. 92–603, title IV, § 403, Oct. 30, 1972, 86 Stat. 1487, provided for the computation of the allotment of each state for the fiscal year ending June 30, 1973.


Most of our clients probably have family trusts. Yet 99% of the 20,000 entities in our system are not owned by trusts, but by the individuals who formed the entities. We want to take this break from our regularly scheduled programming to remind our clients that if you have a trust, you can only realize its full benefit by insuring that all of your assets, including shares in corporations and membership interests in LLCs, are transferred to the trust.
[t]he most important step is funding the trust. It is an estate planning attorney’s imperative to communicate to clients the importance of funding the inter vivos trust during the life of the settlors. A well-funded inter vivos trust does not typically require court oversight; however, a trust that has not been fully funded may require court petitions in order to transfer property into the trust after the death of the settlor, defeating the purposes of avoiding probate.
In other words, the settlor’s property (including corporate shares and LLC membership interests) has to be in the trust in order for the advantages of the trust, including maintaining privacy, to be realized.
Although there are ways of getting property into a trust after the settlor has died, none of these options desirable. In particular, most estate plans involving the creation of a trust also call for the execution of a “pour-over will.” A pour-over will provides that all of the decedent’s “forgotten assets,” that is, those assets that were not successfully transferred to the trust during the settlor’s lifetime for whatever reason, should be paid to the trust. The problem is that a pour-over will, like any other will, is ineffective until it has been probated, which defeats the probate-avoidance purpose of establishing a trust.
Most states also have a small estate exemption that can be used to avoid probate for some amount of a settlor’s forgotten assets that did not make it into the trust before the settlor died. It is unwise, however, to rely on the small estate exemption as a post hoc method of funding a trust for various reasons, including the hassle and expense involved and, more importantly, the limited nature of the exemption. In New York, for example, a “small estate” is defined as the estate of a person who dies leaving personal property having a gross value of $30,000 or less, exclusive of various enumerated items, including “marketable securities” and other “money” not exceeding $25,000 in value. Corporate shares and LLC membership interests are personal property, but are probably not marketable securities in the context of the type of closely held corporation or LLC with just a few members that we are talking about here. So any corporation or LLC having a modest value of more than $30,000 will bust the small estate exemption. The limit is higher in California—$150,000—but that includes real and personal property in the state and provides for fewer excluded items than in New York, so again the small estate exemption should not be relied on in California as a probate-avoidance technique.
the most common reason for the settlor’s failure to transfer property to his or her revocable trust is a simple lack of information regarding the necessity that they do so. A large portion of individuals who execute revocable trusts do not understand how the trusts work or how they “avoid probate.” Correspondingly, they are unaware of the requirement that they transfer their property to the trust. Moreover, estate planning attorneys generally do not assist their clients with transferring assets to their trust and may not even mention the need to do so to the client. Although the process of transferring most assets to a revocable trust is not complicated, it may be somewhat daunting for a lay-person.
The process of transferring shares to a trust is incredibly easy. We prepare two documents (an Assignment Separate From Certificate and a new share certificate) and then update the stock ledger.
But you have to know to ask. And given that almost all of the shares in our system are individually owned, even though a majority of our clients probably have family trusts to, among other things, achieve privacy in their estate planning, it appears that many of our clients simply do not know to request that shareholding or membership interests in the businesses we form or maintain for them be assigned to their trusts, rather than to themselves individually, which is why we wrote this article.
 See, e.g., David J. Feder & Robert H. Sitkoff, Revocable Trusts and Incapacity Planning: More Than Just A Will Substitute, 24 Elder L.J. 1, 16 (2016) (“Unlike a will, which upon probate becomes a public record, a revocable trust need not be filed with a court unless a dispute arises. So there is a privacy advantage to a revocable trust relative to a will, one that persists even in a state that has reformed probate to make it cheaper and faster.” (footnote omitted)); Bradley E.S. Fogel, Trust Me? Estate Planning with Revocable Trusts, 58 St. Louis U. L.J. 805, 817 (2014) (“Revocable trusts are quite effective at maintaining the privacy of an individual’s estate plan after his or her death.”); Frances H. Foster, Trust Privacy, 93 Cornell L. Rev. 555, 557 (2008) (“[R]evocable trusts, including those that continue for decades after the settlor’s death, are private.”).
 “Inter vivos trust” is merely the technical term for a trust that “is created during the [settlor’s] lifetime and becomes effective upon creation.” Aastha Madaan, The Basics of Inter Vivos Trusts, 33 No. 4 GPSolo 20, 21 (July/Aug 2016).
 Madaan, supra note 2, at 23 (emphasis added).
 Fogel, supra note 1, at 810.
 See N.Y. Surr. Ct. Proc. Act Law § 1301(1); N.Y. Est. Powers & Trusts Law § 5-3.1(a).
 See, e.g., Cal. Corp. Code § 17705.01; N.Y. Ltd. Liab. Co. Law § 601.
 See Cal. Prob. Code § 13100.
 Fogel, supra note 1, at 813 (footnotes omitted).
 There is one caveat in that a trust may not own every type of corporate stock or LLC interest. For example, in California, shares of capital stock in a professional corporation may be issued only to a person who is licensed to render the same professional services offered by the corporation. See Cal. Corp. Code § 13406(a).


A credit of the applicable credit amount shall be allowed to the estate of every decedent against the tax imposed by section 2001.
The amount of the credit allowable under subsection (a) shall be reduced by an amount equal to 20 percent of the aggregate amount allowed as a specific exemption under section 2521 (as in effect before its repeal by the Tax Reform Act of 1976) with respect to gifts made by the decedent after September 8, 1976.
For purposes of this section, the applicable credit amount is the amount of the tentative tax which would be determined under section 2001(c) if the amount with respect to which such tentative tax is to be computed were equal to the applicable exclusion amount.
For purposes of this subsection, the basic exclusion amount is $5,000,000.
(ii) the cost-of-living adjustment determined under section 1(f)(3) for such calendar year by substituting "calendar year 2010" for "calendar year 2016" in subparagraph (A)(ii) thereof.
In the case of estates of decedents dying or gifts made after December 31, 2017, and before January 1, 2026, subparagraph (A) shall be applied by substituting "$10,000,000" for "$5,000,000".
A deceased spousal unused exclusion amount may not be taken into account by a surviving spouse under paragraph (2) unless the executor of the estate of the deceased spouse files an estate tax return on which such amount is computed and makes an election on such return that such amount may be so taken into account. Such election, once made, shall be irrevocable. No election may be made under this subparagraph if such return is filed after the time prescribed by law (including extensions) for filing such return.
The Secretary shall prescribe such regulations as may be necessary or appropriate to carry out this subsection.
The amount of the credit allowed by subsection (a) shall not exceed the amount of the tax imposed by section 2001.
The Tax Reform Act of 1976, referred to in subsec. (b), is Pub. L. 94–455, Oct. 4, 1976, 90 Stat. 1520 , as amended. For complete classification of this Act to the Code, see Tables.
Section 2521 of this title, referred to in subsec. (b), was repealed by section 2001(b)(3) of Pub. L. 94–455, applicable to gifts made after Dec. 31, 1976.
2017-Subsec. (c)(3)(B)(ii). Pub. L. 115–97, §11002(d)(1)(CC), substituted "for 'calendar year 2016' in subparagraph (A)(ii)" for "for 'calendar year 1992' in subparagraph (B)".
Subsec. (c)(3)(C). Pub. L. 115–97, §11061(a), added subpar. (C).
2013-Subsec. (c)(4)(B)(i). Pub. L. 112–240 substituted "applicable exclusion amount" for "basic exclusion amount".
2010-Subsec. (c). Pub. L. 111–312, §302(a)(1), amended subsec. (c) generally, substituting pars. (1) and (2) for text which provided that the applicable credit amount for purposes of this section was the amount of the tentative tax which would be determined under the rate schedule set forth in section 2001(c) if the amount with respect to which such tentative tax was to be computed were the applicable exclusion amount determined in accordance with the table, covering years 2002 to 2009, included in that text.
"(A) In general.-For purposes of this subsection, the applicable exclusion amount is $5,000,000.
"(ii) the cost-of-living adjustment determined under section 1(f)(3) for such calendar year by substituting 'calendar year 2010' for 'calendar year 1992' in subparagraph (B) thereof.
If any amount as adjusted under the preceding sentence is not a multiple of $10,000, such amount shall be rounded to the nearest multiple of $10,000."
2001-Subsec. (c). Pub. L. 107–16, in table, substituted provision that in the case of estates of decedents dying during the years 2002 and 2003, the years 2004 and 2005, the years 2006, 2007, and 2008, and the year 2009, the applicable exclusion amount is $1,000,000, $1,500,000, $2,000,000, and $3,500,000, respectively, for provision that in the case of decedents dying, and gifts made, during the year 1998, the year 1999, the years 2000 and 2001, the years 2002 and 2003, the year 2004, the year 2005, and the year 2006 or thereafter, the applicable exclusion amount is $625,000, $650,000, $675,000, $700,000, $850,000, $950,000, and $1,000,000, respectively.
1997-Subsec. (a). Pub. L. 105–34, §501(a)(1)(A), substituted "the applicable credit amount" for "$192,800".
Subsecs. (c), (d). Pub. L. 105–34, §501(a)(1)(B), added subsec. (c) and redesignated former subsec. (c) as (d).
1990-Subsecs. (b) to (d). Pub. L. 101–508 redesignated subsecs. (c) and (d) as (b) and (c), respectively, and struck out former subsec. (b) which provided for a phase-in of the unified credit against estate tax.
1981-Subsec. (a). Pub. L. 97–34, §401(a)(1), substituted "$192,800" for "$47,000".
Subsec. (b). Pub. L. 97–34, §401(a)(2)(A), struck out "$47,000" before "credit" from heading and in text substituted in subsec. (a) substitutions for "$192,800" amounts of "$62,800", "$79,300", "$96,300", "$121,800", and "$155,800" in the case of decedents dying in 1982, 1983, 1984, 1985, and 1986, respectively, for subsec. (a) substitutions for "$47,000" amounts of "$30,000", "$34,000", "$38,000", and "$42,500" in the case of decedents dying in 1977, 1978, 1979, and 1980, respectively.
Amendment by section 11002(d)(1)(CC) of Pub. L. 115–97 applicable to taxable years beginning after Dec. 31, 2017, see section 11002(e) of Pub. L. 115–97, set out as a note under section 1 of this title.
Amendment by section 11061(a) of Pub. L. 115–97 applicable to estates of decedents dying and gifts made after Dec. 31, 2017, see section 11061(c) of Pub. L. 115–97, set out as a note under section 2001 of this title.
Amendment by Pub. L. 112–240 effective as if included in the amendments made by section 303 of the Tax Relief, Unemployment Insurance Reauthorization, and Job Creation Act of 2010, Pub. L. 111–312, see section 101(c)(3)(B) of Pub. L. 112–240, set out as a note under section 2001 of this title.
Amendment by section 302(a)(1) of Pub. L. 111–312 applicable to estates of decedents dying, generation-skipping transfers, and gifts made, after Dec. 31, 2009, see section 302(f) of Pub. L. 111–312, set out as a note under section 2001 of this title.
"(1) In general.-Except as provided in paragraph (2), the amendments made by this section [amending this section and sections 2505, 2631, and 6018 of this title] shall apply to estates of decedents dying and gifts made after December 31, 2010.
"(2) Conforming amendment relating to generation-skipping transfers.-The amendment made by subsection (b)(2) [amending section 2631 of this title] shall apply to generation-skipping transfers after December 31, 2010."
"(1) In general.-Except as provided in paragraphs (2) and (3), the amendments made by this section [amending this section and sections 2057, 2505, and 2631 of this title] shall apply to estates of decedents dying, and gifts made, after December 31, 2001.
"(2) Subsection (b)(2).-The amendments made by subsection (b)(2) [amending section 2505 of this title] shall apply to gifts made after December 31, 2009.
"(3) Subsections (c) and (d).-The amendments made by subsections (c) and (d) [amending sections 2057 and 2631 of this title] shall apply to estates of decedents dying, and generation-skipping transfers, after December 31, 2003."
Amendment by Pub. L. 105–34 applicable to estates of decedents dying, and gifts made, after Dec. 31, 1997, see section 501(f) of Pub. L. 105–34, set out as a note under section 2001 of this title.
Pub. L. 97–34, title IV, §401(c)(1), Aug. 13, 1981, 95 Stat. 300 , provided that: "The amendments made by subsection (a) [amending this section and section 6018 of this title] shall apply to the estates of decedents dying after December 31, 1981".