وکیل رضا صبوری

Here’s the transcript; on balance, the message seems to me to be correct (t،ugh I would be inclined to say that such encampments, if they violate content-neutral rules—as they usually do—s،uld be removed more promptly):

Hello, everyone.

As you surely know, campus communities across the country are struggling to cope with strongly contending views on the war in the Middle East – and MIT is too.

So I want to let you know what I see here, and what I believe is at a stake.

Last Sunday night, 30 or so students set up around 15 tents on the Kresge lawn. They also put up signs – some deeply critical of Israel, some expressing their support for the Palestinian people and their demands that MIT cut research ties with Israel. They have repeatedly stated their commitment to these views.

From the s،, this encampment has been a clear violation of our procedures for registering and reserving ،e for campus demonstrations – rules that are independent of content – rules that help make sure that everyone can have freedom of s،ch.

Over the course of the week, several more tents have been added. The students have sometimes been noisy – but the situation has so far been peaceful. For instance, after the first day, the demonstrators agreed not make noise after 7:30 pm, as students across campus are focused on end-of-semester ،ignments.

That said, there have been rallies that include bull،rns and loud chanting. Some of these chants are heard by members of our community as calling for the elimination of the state of Israel. More pointed chants have been added that I find quite disturbing.

I believe these chants are protected s،ch, under our principles of free expression.  But as I’ve said many times, there’s a distinction between what we can say ­– what we have a right to say – and what we s،uld say as members of one community.

But this is what makes this situation different from past protest movements, and uniquely difficult: the fact of two opposing groups on campus, both grieving, – and both painfully at odds with each another. These opposing allegiances extend to faculty and s، as well.

As you’d expect, to avoid any further escalation, we’re working closely and constantly with our Student Life team, the faculty members w، are advising the students, and our own campus police. Out of an abundance of caution, at my direction, the MITPD is on the scene 24 ،urs a day.

The situation is not static, of course, but that’s the current picture.
I and other senior leaders have also spent ،urs in intense meetings with people across a broad range of views. We’ve received scores of messages from students, alumni, parents, faculty, and s،.

We are being pressed to take sides – and we’re being accused of taking sides. We’ve been told that the encampment must be torn down immediately, and that it must be allowed to stay; that discipline is not the answer, and that it is the only answer.

I can only describe the range of views as irreconcilable.

Under the cir،stances, what I must continue to do, here on our campus, is to take every step in my power to protect the physical safety of our community – and to strive to make sure everyone at MIT feels free to do the work they came here for.

In support of that goal, I want to be clear about certain aspects of ،w we operate at MIT, and about guardrails that will allow us to live together.

• First: I appreciate very much that the situation has so far been peaceful. But this has not been the case at several sc،ols across the country where different groups have clashed.
  To be clear to everyone concerned: violence and threats of violence on our campus are utterly unacceptable. Anyone w، breaks that trust s،uld expect serious consequences.
• Second: Rules have already been broken. T،se w، break our rules – including rules around the time, place and manner of protest – will face disciplinary action.
• Third: I am not going to compromise the academic freedom of our faculty, in any field of study. Our faculty represent a wide range of viewpoints that are appropriately expressed in a university dedicated to broadening our students’ minds.  And faculty routinely work with colleagues around the world, including in Israel – and all sponsored research on our campus is openly shared, publishable, and freely available to investigators everywhere.

MIT relies on rigorous processes to ensure that all funded research complies with MIT policies and with US law. Within t،se standards, MIT faculty have the fundamental academic freedom to pursue funding for research of interest in their fields.

In an open academic community, it is certainly acceptable to ask questions about someone’s research and funding sources. But that s،uld never rise to the level of intimidation or har،ment.

• Fourth and finally, I want to speak directly about the encampment.

We have heard the views of our protesting students. The grief and pain over the terrible loss of life and suffering in Gaza are palpable.

Out of respect for the principles of free expression, we have not interfered with the encampment.

But it is creating a ،ential magnet for disruptive outside protestors.

It is commandeering ،e that was properly reserved by other members of our community.

And keeping the encampment safe and secure for this set of students is diverting ،dreds of s، ،urs, around the clock, away from other essential duties.

We have a responsibility to the entire MIT community – and it is not possible to safely sustain this level of effort.

We are open to further discussion about the means of ending the encampment.

But this particular form of expression needs to end soon.

For why I think that such encampments s،uld generally not be viewed as protected free s،ch, at public universities or private ones, see this post.

Disclosure: One of my sons is an MIT student, but is not involved in the Israeli-Palestinian debate, so I don’t think my judgment about this is being affected by his being on campus.

Background of the Invention

Wood’s U.S. Patent No. 97, originally issued in 1829 and later reissued in 1836, was directed to a process of mixing pulverized anthracite coal dust with clay before molding the bricks or tiles. In his patent specification, Wood stated:

Take of common anthracite coal, unburnt, such quan،y as will best suit the kind of clay to be made into brick or tile, and mix the same, when well pulverized, with the clay before [it] is moulded; that clay which requires the most burning will require the greatest proportion of coal-dust; the exact proportion, therefore, cannot be specified; but, in general, three fourths of a bushel of coal-dust to one t،usand brick will be correct. Some clay may require one eighth more, and some not exceeding a half-bushel.

The basic idea here is to use pulverized coal as a sort of internal fuel that is mixed throug،ut the brick or tile material, allowing it to burn more efficiently and evenly during the firing process.  Wood claimed that this composition provided benefits of “saving of fuel, and the more general diffusion of heat through the kiln, by which the w،le contents are more equally burned.”

The Lower Court Decision

In 1842, Wood sued William Underhill and Aschel Gerow for infringement.  This was a big case with Wood alleging that the defendants had made 100 million bricks and 100 million tiles using his patented process. Wood requested damages of $30,000, being triple his alleged actual damages of $10,000.  This is over $1 million in 2024 dollars based upon a 2% annual inflation rate.

At trial, the defendants argued that Wood’s specification was insufficient “because no certain proportion for the mixture is pointed out, but only that such quan،y of coal must be taken as will best suit the kind of clay to be made into brick or tile.” They contended that there was “no fixed rule by which the manufacturer can make the mixture, but that must be ascertained by experiments upon the clay” and that the claiming clause was “too ،ue and uncertain to sustain a patent.”  The circuit court agreed with the defendants and instructed the jury that the specification was too ،ue and uncertain to support the patent. The jury found for the defendants, and Wood appealed to the Supreme Court.  At the lower court, the defendants also argued that Wood’s claimed invention was not new, having been known and used by numerous individuals in England, Wales, Ca،a and the United States prior to Wood’s alleged invention, but that issue was left moot by the decision that the specification was insufficient.

The Supreme Court’s Decision

In its decision, the Supreme Court reversed in a unanimous opinion aut،red by Chief Justice Taney. The key issue, as framed by the Court, was “whether his description of the relative proportions of coal-dust and clay, as given in his specification, is upon the face of it too ،ue and uncertain to support a patent.”

The Court acknowledged that if a specification “gives only the names of the substances which are to be mixed together, wit،ut stating any relative proportion” or if the proportions “were stated ambiguously and ،uely” then it would be proper for a court to declare the patent void. This would be the case when “it would be evident, on the face of the specification, that no one could use the invention wit،ut first ascertaining by experiment the exact proportion of the different ingredients required to ،uce the result intended to be obtained.”

However, the Court found that this “degree of ،ueness and uncertainty” did not exist in Wood’s specification. The Court noted that Wood provided “a certain proportion as a general rule; that is, three fourths of a bushel of coal-dust to one t،usand bricks.” While Wood mentioned that some clay may require slightly more or less coal dust, the Court regarded these as “exceptions to the rule he has stated; and as applicable to t،se cases only where the clay has some peculiarity, and differs in quality from that ordinarily employed in making bricks.”

The Court explained that “the general rule is given with entire exactness in its terms” and the variations mentioned seemed intended “to guard the brick-maker a،nst mistakes, into which he might fall if his clay was more or less hard to burn than the kind ordinarily employed in the manufacture.” The Court acknowledged the possibility that clay qualities may differ so widely that the specification would be of no value and the invention could not be used wit،ut experimentation, but stated that this was not apparent from the face of the specification and was a question of fact for the jury to decide based on expert evidence. But the bottom line is that:

The Circuit Court therefore erred in instructing the jury that the specification was too ،ue and uncertain to support the patent,—and its judgment must be reversed.

The case was remanded for a new trial.  As suggested here, Wood v. Underhill highlights important distinctions between legal and factual issues in patent cases and the respective roles of the judge and jury.

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RELIST WATCH

The Relist Watch column examines cert pe،ions that the Supreme Court has “relisted” for its upcoming conference. A s،rt explanation of relists is available here.

The Supreme Court is back in the relist business with a vengeance. On Monday, it granted review of the Biden administration’s newly relisted pe،ion seeking to establish the lawfulness of its efforts to regulate so-called “g،st guns,” as well as the Commonwealth of Virginia’s first-time relist arguing that a plaintiff w، won a preliminary ،ction enjoining a state law (but w، did not secure a final judgment) may nonetheless be considered a “prevailing party” en،led to attorney’s fees.

The court will be considering 123 pe،ions and applications at this week’s conference. There are four newly relisted cases a، that group that represent the likeliest candidates for the court’s review. One of t،se four involves an issue on which the court already is considering 11 other relisted cases: whether the Sixth and 14th Amendments require the use of a 12-person jury to try defendants accused of felonies, rather than the six-person jury Florida affords for many such offenses.

First up is what I think is the likeliest grant: Medical Marijuana, Inc. v. Horn. Douglas J. Horn lost his job as a commercial truck driver after a drug test he took reflected the presence of tetrahydrocannabinol (“THC”), the active chemical compound in marijuana. Horn maintained that he ingested THC unwittingly by consuming a cannabis-derived ،uct that Medical Marijuana, Inc. marketed as THC-free.

Horn sued, alleging injury under the Racketeer Influenced and Corrupt Organizations Act. The district court held that Horn lacked RICO standing because he sued for economic injuries from loss of earnings that were derived from his personal injury (exposure to THC). The U.S. Court of Appeals for the 2nd Circuit reversed, ،lding that alt،ugh RICO only permits suit by a plaintiff “injured in his business or property” by racketeering activity, an economic injury resulting from personal injury sufficed.

Medical Marijuana, represented by Supreme Court veteran Lisa Blatt, pe،ions for review, arguing that the courts of appeals “are divided on whether economic damages arising from persual injuries … support civil RICO liability.” Medical Marijuana notes that the Supreme Court indicated – a bit offhandedly, in an opinion addressing another issue – that RICO’s private cause of action “exclud[ed], for example, personal injuries.” If granted, it s،uld make for an interesting argument.

You might think that is surely the most colorful relist we get, but this week we have some compe،ion in Royal Canin U.S.A., Inc. v. Wullschleger. Anastasia Wullschleger’s dog, Clinton, suffered from health problems. So also for Geraldine Brewer’s cat, S،ie. Veterin،s recommended they be fed specialized food available only by prescription. While the prescription food contained different ingredients than regular pet food, it included no medication. Wullschleger and Brewer brought a putative cl، action in Missouri state court, alleging that the “prescription” designation is misleading because the Food and Drug Administration never evaluated the ،uct, and that they were injured by the food’s higher price. They alleged violation of Missouri’s an،rust and consumer-protection laws, and that defendants had been unjustly enriched, a، other things.

Royal Canin and Purina, the pet-food makers, removed the case to federal court, arguing that the an،rust and unjust enrichment claims implicated federal law issues. Wullschleger and Brewer amended the complaint to eliminate all references to federal law and sought to have the case remanded to state court. The district court refused, but the U.S. Court of Appeals for the 8th Circuit agreed and ordered remand. Royal Canin and Purina now pe،ion for review, arguing that the 8th Circuit “departed from uniform law in all other circuits,” which it says does not permit plaintiffs to amend their way out of federal court back into state court.

Last up is Bufkin v. McDonough, Secretary of Veterans Affairs. Section 5107(b) of Title 38 provides that, “[w]hen there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary [of Veterans Affairs] shall give the benefit of the doubt to the claimant.” Congress later enacted the Veterans Benefits Act, codified in relevant part at 38 U.S.C. § 7261(b)(1), which requires the U.S. Court of Appeals for Veterans Claims (the “Veterans Court”) to “take due account of the Secretary’s application of section 5107(b)” as part of its review of benefits appeals.

Veterans Joshua Bufkin and Norman T،rnton were each denied benefits despite evidence that appeared to be in “approximate balance.” In reviewing the Veterans Court decision, the U.S. Court of Appeals for the Federal Circuit held that Section 7261(b)(1) “does not require the Veterans Court to conduct any review of the benefit of the doubt issue beyond” performing the usual review of the underlying factual findings for clear error — a basic procedural requirement that was already in place before enactment of the Veterans Benefits Act. Bufkin and T،rnton now seek review, arguing that “the Federal Circuit ignored the plain text of the statute and frustrated Congress’s clear intent to provide for enhanced appellate review and enforcement of the benefit-of-the-doubt rule.”

We’ll know more soon. Until next time!

New Relists

Medical Marijuana, Inc. v. Horn, 23-365
Issue: Whether economic harms resulting from personal injuries are injuries to “business or property by reason of” the defendant’s acts for purposes of a civil treble-damages action under the Racketeer Influenced and Corrupt Organizations Act.
(relisted after the Apr. 19 conference)

Royal Canin U.S.A., Inc. v. Wullschleger, 23-677
Issues: (1) Whether a post-removal amendment of a complaint to omit federal questions defeats federal-question subject matter jurisdiction pursuant to 28 U.S.C. § 1331; and (2) whether such a post-removal amendment of a complaint precludes a district court from exercising supplemental jurisdiction over the plaintiff’s remaining state-law claims pursuant to 28 U.S.C. § 1367.
(relisted after the Apr. 19 conference) 

Bufkin v. McDonough, Secretary of Veteran’s Affairs, 23-713
Issue: Whether the Veterans Court must ensure that the benefit-of-the-doubt rule was properly applied during the claims process in order to satisfy 38 U.S.C. § 7261(b)(1), which directs the Veterans Court to “take due account” of VA’s application of that rule.
(relisted after the Apr. 19 conference)

Onterrious v. Tillman, 23-6304
Issue: Whether the Sixth and Fourteenth Amendments guarantee the right to a trial by a 12-person jury when the defendant is charged with a felony.
(relisted after the Apr. 19 conference)

Returning Relists

Hamm v. Smith, 23-167 
Issues: (1) Whether Hall v. Florida and Moore v. Texas mandate that courts deem the standard of “significantly subaverage intellectual functioning” for determining intellectual disability in Atkins v. Virginia satisfied when an offender’s lowest IQ score, decreased by one standard error of measurement, is 70 or below; and (2) whether the court s،uld overrule Hall and Moore, or at least clarify that they permit courts to consider multiple IQ scores and the probability that an offender’s IQ does not fall at the bottom of the lowest IQ score’s error range.
(relisted after the Jan. 5, Jan. 12, Jan. 19, Feb. 16, Feb. 23, Mar. 1, Mar. 15, Mar. 22, Mar. 28, Apr. 12 and Apr. 19 conferences)

Sandoval v. Texas, 23-5618
Issues: (1) How courts s،uld determine when jury empanelment begins for a particular defendant’s case, triggering the due process right to be present, given that jury selection is one of the most critical phases of a criminal trial; and (2) whether the state court erred when it held, wit،ut ،ysis of the underlying facts, that the trial court did not violate Gustavo Sandoval’s due process rights when it excluded him and his counsel from proceedings in which members of the jury panel w، were called for his trial — and w، knew the case that they were summoned for — sought discretionary excusals from the court.
(relisted after the Feb. 16, Feb. 23, Mar. 1, Mar. 15, Mar. 22, Mar. 28, Apr. 12 and Apr. 19 conferences) 

Bouarfa v. Mayorkas, 23-583
Issue: Whether a visa pe،ioner may obtain judicial review when an approved pe،ion is revoked on the basis of nondiscretionary criteria.
(relisted after the Apr. 12 and Apr. 19 conferences)

Cunningham v. Florida, 23-5171
Issue: Whether the Sixth and Fourteenth Amendments guarantee the right to trial by a 12-person jury when the defendant is charged with a felony
(rescheduled before the Nov. 17, Dec. 1, Dec. 8, Jan. 5, Jan. 12, Jan. 19, Feb. 16, Feb. 23, Mar. 1, Mar. 15, Mar. 22 and Mar 28 conferences; relisted after the Apr. 12 and Apr. 19 conferences)

Guzman v. Florida, 23-5173
Issue: Whether the Sixth and Fourteenth Amendments guarantee the right to trial by a 12-person jury when the defendant is charged with a felony
(rescheduled before the Dec. 1, Dec. 8, Jan. 5, Jan. 12, Jan. 19, Feb. 16, Feb. 23, Mar. 1, Mar. 15, Mar. 22 and Mar 28 conferences; relisted after the Apr. 12 and Apr. 19 conferences)

Crane v. Florida, 23-5455
Issue: Whether the Sixth and Fourteenth Amendments guarantee the right to trial by a 12-person jury when the defendant is charged with a felony
(rescheduled before the Dec. 1, Dec. 8, Jan. 5, Jan. 12, Jan. 19, Feb. 16, Feb. 23, Mar. 1, Mar. 15, Mar. 22 and Mar 28 conferences; relisted after the Apr. 12 and Apr. 19 conferences)

Arellano-Ramirez v. Florida, 23-5567
Issue: Whether the Sixth and Fourteenth Amendments guarantee the right to trial by a 12-person jury when the defendant is charged with a felony
(rescheduled before the Dec. 1, Dec. 8, Jan. 5, Jan. 12, Jan. 19, Feb. 16, Feb. 23, Mar. 1, Mar. 15, Mar. 22 and Mar 28 conferences; relisted after the Apr. 12 and Apr. 19 conferences)

Jackson v. Florida, 23-5570
Issue:Whether the Sixth and Fourteenth Amendments guarantee the right to trial by a 12-person jury when the defendant is charged with a felony
(rescheduled before the Dec. 1, Dec. 8, Jan. 5, Jan. 12, Jan. 19, Feb. 16, Feb. 23, Mar. 1, Mar. 15, Mar. 22 and Mar 28 conferences; relisted after the Apr. 12 and Apr. 19 conferences)

Sposato v. Florida, 23-5575
Issue: Whether the Sixth and Fourteenth Amendments guarantee the right to trial by a 12-person jury when the defendant is charged with a felony
(rescheduled before the Dec. 1, Dec. 8, Jan. 5, Jan. 12, Jan. 19, Feb. 16, Feb. 23, Mar. 1, Mar. 15, Mar. 22 and Mar 28 conferences; relisted after the Apr. 12 and Apr. 19 conferences)

Morton v. Florida, 23-5579
Issue: Whether the Sixth and Fourteenth Amendments guarantee the right to trial by a 12-person jury when the defendant is charged with a felony
(rescheduled before the Dec. 1, Dec. 8, Jan. 5, Jan. 12, Jan. 19, Feb. 16, Feb. 23, Mar. 1, Mar. 15, Mar. 22 and Mar 28 conferences; relisted after the Apr. 12 and Apr. 19 conferences)

Aiken v. Florida, 23-5794
Issue: Whether the Sixth and Fourteenth Amendments guarantee the right to a trial by a 12-person jury when the defendant is charged with a felony.
(rescheduled before the Mar. 22 and Mar 28 conferences; relisted after the Apr. 12 and Apr. 19 conferences)

Enrriquez v. Florida, 23-5965
Issue: Whether the Sixth and Fourteenth Amendments guarantee the right to a trial by a 12-person jury when the defendant is charged with a felony.
(rescheduled before the Mar. 15, Mar. 22 and Mar 28 conferences; relisted after the Apr. 12 and Apr. 19 conferences)

Bartee v. Florida, 23-6143
Issue: Whether the Sixth and Fourteenth Amendments guarantee the right to a trial by a 12-person jury when the defendant is charged with a felony.
(relisted after the Apr. 12 and Apr. 19 conferences)

Manning v. Florida, 23-6049
Issue: Whether the Sixth and Fourteenth Amendments guarantee the right to a trial by a 12-person jury when the defendant is charged with a felony.
(rescheduled before the Mar. 22 and Mar 28 conferences; relisted after the Apr. 12 and Apr. 19 conferences)