This blog provides a space for conversations about articles and ideas found in AALL Spectrum
, the monthly magazine of the American Association of Law Libraries. The previous blog was located at aallspectrum.wordpress.com
7/11/2013 9:50:08 AM
Book Review: The Washington State Constitution, Second Edition
Robert F. Utter and Hugh D. Spitzer, The Washington State Constitution, Second Edition, Oxford University Press, 2013, 309 pages, inclusive of index, Hardcover, $150.00, ISBN 978-0-19-994616-7.
With its latest publication on the Washington State Constitution, the Oxford Commentaries on the States Constitutions of the United States adds to its massive collection that is almost complete with commentaries on forty-six of the fifty states. Each Commentary combs through each section of a state’s constitution and offers historical background, case citations, and much more in an effort to provide the reader a greater understanding of a state’s constitution.
Robert Utter and Hugh Spitzer, the authors of the commentary on the Washington State Constitution, begin with an excellent historical background of the drafting of the Washington State Constitution. Beginning with the history of the document proved highly beneficial to this reader who had no prior knowledge in this area. The authors successfully describe the time and place in which the state constitution was drafted which made it easier to understand, when reading through later chapters, exactly why a certain provision was included in the document.
Describing the Washington State Constitution as a “responsive political document,” the authors write that it was drafted to respond to numerous movements that were taking place at the time. The Populist Movement was reaching a fever pitch and was the dominant thought at the time. The settlers of the area had cut off ties with their family and former way of life and had immigrated to the Pacific Northwest to seek new fortune. The public distrusted the big corporations of the day in the railroad and mining fields, distrusted the numerous special interests trying to exert control over the state, and distrusted the notion that power should be concentrated in a small group. This distrust among the citizens and drafters of the state constitution led to the creation of a document that imposed numerous restrictions on the state legislature, divided executive authority among numerous elected officials rather than just a governor, restricted the activities of corporations, and provided strong protection of individual liberties.
Utter and Spitzer also include in their Commentary a discussion on how the state constitution has been dealt with by the Washington judiciary. Prior to the 1940s, the state courts actively interpreted and applied the state’s constitution. However, once the federal Bill or Rights began to be incorporated against the several states by the United States Supreme Court a shift occurred whereby a greater reliance on the Bill of Rights and United States Supreme Court was had in the state court system. By the 1980s, state courts such as Washington’s were more willing to diverge from the United States Supreme Court and rely on sections of the state constitution to settle a dispute. Perhaps the greatest example of this pendulum swing, and a great example of the best feature of this Commentary, is the authors’ discussion on Article 1, Section 7 of the Washington State Constitution. This provision states that “no person shall be disturbed in his private affairs or his home invaded, without authority of law.” The authors trace a time line for the readers of what the drafters desired to include in this provision in 1889 to the 1970s when the state Supreme Court began disagreeing with its federal counterpart in extending greater protection to its citizens than the Fourth Amendment to the Constitution would have provided. This focus on history and detail is perhaps the greatest feature of this Commentary. Utter and Spitzer provide in depth analysis on the topic with historical insights and case law analysis.
Each Article of the State Constitution receives its own chapter with a word-for-word direct quote of the section. Following the text of each Article is historical data such as the date of its adoption and ratification which is then followed by the authors’ historical analysis of the provision with an emphasis on case law interpreting said provision. A great Table of Cases and Index are provided in the back of the book to make it easier to locate specific items a reader might be interested in locating. This title is a great resource to have in an academic law library's legal history section.
Stephen Parks is the Research, Instructional Services, and Circulation Librarian at the Mississippi College Law Library.
Posted By 7/11/2013 9:50:08 AM
7/11/2013 9:47:19 AM
Book Review: The North Carolina State Constitution, Second Edition
John V. Orth & Paul Martin Newby, The North Carolina State Constitution, Second Edition (New York: Oxford University Press, 2013). 254 pages. ISBN: 9780199915149. $150.00 (Hardcover).
Since its initial publication in 1993, UNC Law Professor John V. Orth's The North Carolina State Constitution has served as a valuable resource for legal researchers interested in the constitutional development of the Tar Heel State. Justice Paul Martin Newby of the Supreme Court of North Carolina joins Professor Orth as co-author of this second edition, part of The Oxford Commentaries on the State Constitutions of the United States series. Drawing on their wealth of knowledge and experience, Professor Orth and Justice Newby create an informative and accessible account of the history, structure, and interpretation of the North Carolina Constitution.
Following the format of the first edition, the second consists of two parts: The History of the North Carolina Constitution and The North Carolina Constitution and Commentary. The History of the North Carolina Constitution traces the evolution of the state's constitution over the past two centuries, beginning with the original 1776 document through the 1868 revisions necessitated by the Civil War and the current version adopted in 1971. In addition to summarizing the key reforms instituted by each of the three constitutions, the authors offer an insightful explanation of the historical, political, and social factors that shaped the constitutional tradition of North Carolina.
The North Carolina Constitution and Commentary contains a section-by-section analysis of the complete state constitution, including nine amendments approved after the publication of the first edition. Professor Orth and Justice Newby excel at explaining the language of the constitution in a manner understandable by both legal experts and novices. Their detailed commentary also addresses the origins of each section, any changes made from prior constitutions, and judicial decisions that have interpreted the relevant provisions. The references to court opinions can be particularly helpful to researchers, both as a means of understanding the North Carolina judiciary's views of the constitution and as as tool for finding additional cases that focus on similar issues.
Readers will find a bibliography at the end of the treatise that illustrates the depth of the authors' research and serves as a handy reference guide to the North Carolina Constitution. A table of cases and topical index are also available to help locate desired information.
Effective research of the North Carolina Constitution requires an appreciation of the text of the document, its history, and its interpretation by the courts. The North Carolina State Constitution, Second Edition provides a comprehensive, user-friendly examination of these topics. This title will be a positive addition to any library's state constitutional law collection.
Timothy J. Gallina is Reference/Emerging Technologies Librarian and Clinical Assistant Professor of Law at the Kathrine R. Everett Law Library, University of North Carolina at Chapel Hill.
Posted By 7/11/2013 9:47:19 AM
7/9/2013 3:26:35 PM
Book Review: Patenting Medical and Genetic Diagnostic Methods
Patenting Medical and Genetic Diagnostic Methods, by Eddy D. Ventose, Edward Elgar Publishing, 2013, 232 pages, $120, ISBN 978-1-78100-177-6.
Patenting Medical and Genetic Diagnostic Methods is a meticulous examination of patent protection for methods of medical treatment and genetic diagnostic methods in the United States. It is recommended for patent attorneys and law students who plan to practice intellectual property law. The book is an expansion of a chapter the author wrote in a previous book, Medical Patent Law: The Challenges of Medical Patents.
Following the introduction in Chapter 1, Chapter 2 addresses early U.S. decisions on patentability of methods of medical treatment. As the author explains, these decisions were often inconsistent. In one 1883 decision, ex parte Brinkerhoff, it was held that “methods or modes of treatment of physicians of certain diseases are not patentable,” based on a judgment that medical processes could not reliably produce consistent results. But medical and scientific knowledge evolved and Brinkerhoff was overruled in 1954 by ex parte Scherer, which accepted that methods of treatment by surgery, therapy, and diagnostic methods were patentable.
Chapter 3 is a discussion of legislative efforts to exempt physicians and related health care entities from patent infringement lawsuits. Chapter 4 is a detailed examination of leading cases on patent eligibility relevant to Section 101 of the Patent Act, the section that affords patentable protection to anyone who “invents or discovers any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof.” Cases discussed in depth are Gottschalk v. Benson, Parker v. Flook, Diamond v. Diehr, and Bilski v. Kappos. Ventose assesses whether any general principles emerged from these decisions that are applicable to patenting medical and genetic diagnostic methods.
Chapters 5 and 6 discuss cases considered by the Federal Circuit and the Supreme Court. Among the cases receiving prominent treatment is Mayo Collaborative Services v. Prometheus Laboratories, which addressed attempts to patent laws of nature. Unfortunately, this book was published before the recent and highly anticipated Supreme Court decision in Association for Molecular Pathology et al. v. Myriad Genetics, Inc., et al. In Myriad the Court unanimously held that claims to isolated DNA sequences do not quality as patent-eligible subject matter. No doubt an update on this case will appear in any subsequent editions of the book.
Interestingly, though this book is about U.S. law, author Eddy V. Ventose does not live or work nor was he raised in the United States. He grew up on the island of St. Lucia, was educated at Oxford and Cambridge, and is a professor at the University of the West Indies in Barbados. Ventose has made an important contribution to legal literature with Patenting Medical and Genetic Diagnostic Methods, an exhaustively researched and thoroughly documented work. Although its extensive analysis makes it less suitable for general practitioners, it would be a valuable addition to law school libraries and for patent practitioners. It is also suitable for readers interested in legal history or the evolution of medical patents. Along with detailed legal analysis of cases the book contains a helpful table of cases, table of national and international legislation, bibliography and comprehensive index.
Donna M. Fisher is the law librarian at Senniger Powers LLP, St. Louis MO.
Posted By 7/9/2013 3:26:35 PM