Let every nation know, whether it wishes us well or ill, that we shall pay any price, bear any burden, meet any hardship, support any friend, oppose any foe to assure the survival and the success of liberty.”
~ John F. Kennedy

In Memoriam

Welcome to the Memorial Day Edition of Blawg Review. I’m not a big flag-waver — out of fear that heart-felt remembrance can often lapse into misplaced jingoism.  So, I was reluctant to fill in at the last moment for the Memorial Day edition after Prof. Mirko Bagaric at Moral Dilemma had a work conflict. And while Memorial Day would seem to be all about shopping — if you go by the number of ads in the paper — it is a day worth special reflection in a time of war. I offer this Review with respect for all who have fought and died for our freedoms.

On Memorial Day we honor our war dead and one of the greatest ways we can show our respect is to pledge to uphold our own constitution and laws, to pledge that there will never be wars for erroneous and misleading reasons; to pledge no more killing except for the ultimate defense of our country and our freedoms. Thus, it is appropriate that a group of lawyers should hold this day special. With great humility, I have to admit that I cannot hope to meet the standards set by previous Memorial Day Blawg Reviews (Crime & Federalism, Blawg Review and Biker Law) but I will pledge to uphold the respect the day deserves.

In a time when people seem to more interested in trivialities such as why Barack Obama doesn’t wear a flag pin (answer: because he felt it has become a substitute for “true patriotism” since Sept. 11, 2001) and despite the fact that John McCain doesn’t wear one either or if Sen. Obama really refused to put his hand on his heart during the pledge of allegiance (it’s false – the candidates were not reciting the pledge of allegiance, they were standing for the national anthem), this is a time when we should remember all Americans who have fallen in the name of our country.  Of course, even today we’re still slightly annoyed at some of the people in line at Starbucks.

Originally called Decoration Day, there are many stories as to the beginnings of Memorial Day, with over two dozen cities and towns laying claim to being the birthplace of Memorial Day, but Memorial Day was officially proclaimed on 5 May 1868 by General John Logan, national commander of the Grand Army of the Republic.

In countries of the British Commonwealth, fallen soldiers are remembered on Remembrance Day, November 11th, which is Veterans Day in the U.S. Today is National Sorry Day in Australia. Remarkably, the Prime Minister offered a formal apology to Australia’s aboriginal people this year.

The “National Moment of Remembrance” resolution asks that at 3 p.m. local time, for all Americans “To voluntarily and informally observe in their own way a Moment of remembrance and respect, pausing from whatever they are doing for a moment of silence or listening to Taps.

Constitutional Rights

While our rights and freedoms are defended by the military, they do not derive from them. Our rights and freedoms are granted to the people by the people under our Constitution (for extra points, try your hand at the U.S. Constitution quiz by the INS). That’s not true in many other countries in the world; witness Myanmar and China, as AmeriCares makes its first shipments into Chengdu.

As we deal with protecting our own fundamental rights, TheZoo points out that it really has nothing to do with whether or not something is fair. The majority may be against gay marriage or other issues, but our Constitution is set up to protect minority rights against the majority. In a law blog post that deals with the moral dilemmas of our time, Mirko Bagaric at Moral Dilemma says our moral code should be defined by ‘we the people’; not ‘them the judges.’

Denise at Life, Law and Gender offers reactions to the decision of the California Supreme Court in the “In re: Marriage Cases” as well as a reflection on the death of Major Alan Rogers, who died in Iraq while shielding two other soldiers from the blast of an exploding IED. Alan was a gay officer and his country required him to lie in order to serve.

Unlike many this week, Andrew Koppelman considered the California same-sex marriage case’s opinion text more than its conclusions. He found the reasoning somewhat lacking and gave it a “barely passing” grade. Todd Zywicki and Dale Carpenter pondered the impact the decision might have on the prohibition of polyamorous unions. Kenji Yoshino, at Slate’s Convictions blog, wondered whether the federal courts will ever invalidate the military’s “don’t ask, don’t tell” policy.

Supreme Justice

Sujit Choudhry at the University of Toronto Faculty of Law Blog looks at the Significance of Khadr where the Canadian Court Court held that he has a constitutional right to the disclosure of the interrogations conducted by Canadian officials in Guantanamo Bay, some or all of which were shared with American authorities. Also, see Lyle Denniston at SCOTUSblog regarding Canada Court denounces U.S. detentions.

We also have to look at how free is free. Ben Duranske at Virtually Blind discusses the new Supreme Court Opinion on Virtual Child Pornography Law.

The Volokh Conspiracy why the conservatives care so much about the courts – a survey found that 44% of Republicans picked naming judicial appointments as the top political issue compared to just 7% of Democrats. The hypothesis is that most high profile Supreme Court constitutional law decisions have considered whether to ban practices embraced by conservatives rather than whether to ban practices embraced by liberals. Mentioning abortion, school prayer, gay rights, flag burning and the death penalty, Volokh believes that a victory for the conservative side means that the political process is left unaltered while a victory for the liberal side means that the court intervenes and mandates that the majority preference — the generally conservative view — is out of bounds. I’m not sure how the end of slavery, women’s suffrage and desegregation would play into that equation.

When the Supreme Court decided Twombley (effectively raising pleading standards in the context of an antitrust case), the Drug and Device Law blog predicted that the decision would ultimately apply to all substantive areas.

From Lowering the Bar, we learn about “Arizona Considering Bill That Would Punish “Dissent” in Public Schools.”

The Great Domain Name blog discusses Preemptive Filing – Another Way of Looking at NPEs.

The Health Blog discusses the privacy of your medical records in a story about PHRs, EHRs, privacy, functionality, and what the future might hold.

At Legal History Blog, “The Roberts Court and Thurgood Marshall’s Legacy.”

In a foreshadowing of coming legacies, Scott Felsenthal mulls over the question of “Could There be a Justice Clinton?”

Governmental Processes

Deborah Pearlstein at Slate’s legal blog notes that, according to Defense Secretary Gates, we’re stuck in Gitmo till ’09.  Why? Gates says there are about 70 detainees who the DoD has cleared for release, but their home countries won’t take them back, or would take back but then release them (presumably against the DoD’s wishes).

Leon Gettler at Sox First discusses how US Justice Department has started targeting individuals, not just companies, for bribery and corruption.

Dan Hull discusses Ted Kennedy at What About Clients?

If rumors are true, Scott Henson suggests that a plea deal for a disgraced NBA referee might be “a terrific example of how law enforcement’s attempt to “flip” an informant can thwart justice instead of further it.”

Todd Smith at Texas Appellate Law Blog questions if FLDS Children are Going Home?  Tom Kirkendall at Houston’s Clear Thinkers has some reflections on the raid.

What the Funny…Patents, operated by the guys at Rethink(IP), show how U.S. Patent 6,130,946, filed on Oct. 23, 1936, did not issue until Oct. 10, 2000 (some thirty one years after the inventor passed away) due to a secrecy order.   The inventor, William F. Friedman, is considered by many to be the father of American cryptology and the application was withheld for national security reasons. [via]

Global Perspectives

China Esquire notes that “America calling for a ban on Chinese imported… bodies?!” Note, this isn’t just a ban on Chinese plastinated bodies. It’s a ban on all such imports. So, it’s not an anti-China matter. However, that we’ve gotten to a society that would even need to ban such a parade of corpses is remarkable.

Customs Law proposes a holiday just for customs lawyers. It seems to have something to do with the Tariff of Abomination.

Global Work Watch asks, “Can Employee Uniforms Make Profits Look Better?”

Duncan Bucknell’s IP Think Tank, an Aussie law blog with a global perspective, presents a Global Week in Review.

UK Law Library is closed Memorial Day.  [Editor’s Note: it’s not Memorial Day in the UK, but this Monday is a Bank Holiday.]

Flag Waving

Memorial Day is a flag holiday–one of 17 days specifically designated in the code on which citizens are encouraged to display the flag, if they’re not in the habit of doing so daily. Glenn Reynolds at Instapundit offers advice on how to “hang” the flag. Also see Old Glory: America’s Flag and How to Fly It.

The Chicago IP Litigation blog notes that there are plenty of flag-waving devices our there (e.g., U.S Patent No. 7,082,889).

Some are hoping to wave their flag on the lunar surface and wonder what would it take to establish title. Since purchasing a parcel is just $20, maybe it doesn’t matter.

Military Drills

Jeff Cleghorn, SLDN Board of Directors, at The Frontlines, the blog of the Servicemembers Legal Defense Network reminds us of Friends Remembered.

Phillip Carter at Intel Dump discusses Memorial Day and Dog Tags while Opinio Juris has a review of battlefield robotics.

At CAAFLOG, “Another military judge recusal refusal reversal” while IntlawGrrrls discuss “Alice Paul and the National Woman’s Party: Direct Action in Time of War.

David Glazier dissects the legal and factual inaccuracies in a Wall Street Journal editorial criticizing civilian and military defense efforts in military tribunals.

The ACLU Blog of Rights presents its first symposium, Torture and America. It is shocking that, in the United States, we would even have to convene such a symposium to discuss our nation’s use of torture.

Land of the Free

Not everyone is convinced our freedoms remain intact. Some Silicon Valley folks are looking to create a permanent, quasi-sovereign nation floating in international waters. What I don’t understand is: Why go for Waterworld? Why not just buy a small island from a nation willing to part with it as sovereign territory?

StandDown Texas Project has Some Thoughts on the Michael Blair Case.

Daniel Solove gives us a sneak preview of his forthcoming book, Understanding Privacy.

It is noteworthy that Iceland tops the Global Peace Index.

Non sequitur

Ryan McKeen at A Connecticut Law Blog wishes everyone a Happy Memorial Day or Decoration Day.

Securing Innovation just wishes everyone would Make Barbeque Not War.

David Giacalone at f/k/a touches many with his Memorial Day haiku. And asks everyone to save fuel by driving no more than 55 over the Memorial Day weekend.

The ICC Law Blawg reminds everyone to enjoy the Memorial Day Weekend, but . . . don’t forget the reason you have the day off

Not a law blog, but a particularly noteworthy blog post this Memorial Day: My First, Best Hero Has Died.

JD Hull at What about Paris?, the weekend supplement to What about Clients? says that Memorial Day, in the U.S. and everywhere, is moving, painful, wonderful, unfair, funny, sad, silly, magical, profound–and in the end too important to be taken seriously.

Trusted Adviser Associates shows that sometimes a sincere apology will save you more money than even a good lawyer, while Civil Negotiation and Mediation publishes a series on negotiating strategies in preparation for mediation to help you anticipate the other side’s moves.

William Patry discussed how forensic analysis can be useful in separating delusional infringement claims from fraudulent ones. For his part, Barry Barnett considered the dividing line between a “meritless” suit and a “frivolous” one.

Tsan Abrahamson reported that Harley-Davidson has prevailed in a trademark infringement claim concerning the term “scarecrow.” Now if they can just lock down “tin man” and “cowardly lion”, they’ll be all set.

Yesterday, the FTC released its annual report on generic and branded drug manufacturers patent settlements.  Scott Felsenthal looks at the breach of coaching contract in college sports.

Madeleine Begun Kane provides a Musical Discord haiku.  Alan Childress explains “It’s that time of year when law mags tout new ways to keep an umbilical cord to the office. Idiots”.

Others posting this Memorial Day include:

That’s a wrap for Blawg Review #161. If I’ve missed some great posts, leave a link in the comments section below. Blawg Review has information about next week’s host, China Law Blog, and instructions on how to get your blawg posts reviewed in upcoming issues.



We Shall Keep Oh! you who sleep in Flanders Fields,
Sleep sweet – to rise anew!
We caught the torch you threw
And holding high, we keep the Faith
With All who died.

We cherish, too, the poppy red
That grows on fields where valor led;
It seems to signal to the skies
That blood of heroes never dies,
But lends a luster to the red
Of the flower that blooms above the dead
In Flanders Fields.

And now the Torch and Poppy Red
We wear in honor of our dead.
Fear not that ye have died for naught;
We’ll teach the lesson that ye wrought
In Flanders Fields.

Written by Moina Michael, November 1918

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  2. I thought this was really excellent. The picture was absolutely heartbreaking.


  3. It is our obligation to reflect upon those who have and are giving so much to make us secure. Thanks for this very thoughtful Blawg Review.


  4. […] Blawg Review #161 has been posted. It pays moving homage to Memorial Day, a day when the U.S. remembers its military […]

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  7. Touching picture; in my opinion, a photo of homeless wounded veteran is just as graphic.

  8. […] over, but I was too busy at my community’s Memorial Day parade to read Patent Barista’s Blawg Review #161 Memorial Day tribute until late yesterday evening.  The Baristas say they are not big […]

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  21. […] Towel Day. For prior Memorial Day editions of Blawg Review, check out #’s 8, 59, 110, and 161. Interestingly, if you want to know why VFW chapters often give poppies in return for donations, […]