Donald Trump and Andrew Jackson: More in common than just populism

U.S. President Donald Trump speaks in front of a portrait of former U.S. President Andrew Jackson. REUTERS/Kevin Lamarque
U.S. President Donald Trump speaks in front of a portrait of former U.S. President Andrew Jackson. REUTERS/Kevin Lamarque

Billy J. Stratton, University of Denver

At President Donald Trump’s request, a portrait of former President Andrew Jackson now hangs in the Oval Office. Commentators have cast Trump’s populist appeal and inaugural address as “Jacksonian,” while others have tried to emphasize their major differences. One writer lauded Jackson as “the president who, more than any other, secured the future of democracy in America.” The Conversation

However, these comparisons overlook experiences of marginalized people while defining history in terms of the ideologies of progress and American exceptionalism.

Jackson’s intolerant attitudes and harsh treatment of African-American and Native American peoples have not gone without mention. They are indeed inescapable. As a scholar who has written about Native American history and literature, I am aware of just how often the perspectives of native people are neglected in conventional historical discourse.

The criticisms Trump has directed against Indian casinos in the 1990s, along with his insult of calling Senator Elizabeth Warren “Pocahontas,” casts his veneration of Jackson in a particularly disturbing light.

Andrew Jackson and the Trail of Tears

Jackson was a staunch supporter of slavery and policies that forcibly removed Indians from their lands. The passage of the 1830 Indian Removal Act was aimed at isolating native peoples to prevent conflict over territory and allow increased settlement.

The solution, originally conceived by Thomas Jefferson, was to empower the government to evict native peoples living east of the Mississippi River from their lands. Those subjected to removal would be moved “beyond the white settlements” to distant reservations in the West, known at the time as “Indian territory.” It was a form of segregation.

R. Ridgway, engraving, c.1859, Muscogee Creek Chief William Weatherford surrenders to Andrew Jackson after the 1814 Battle of Horseshoe Bend. As a result, Jackson forced the Creek to cede over 20 million acres of land in Alabama and Georgia, including almost two million acres claimed by Cherokee Nation, allies who had fought in support of Jackson’s forces.
Library of Congress

In 1832, the Supreme Court struck down Georgia laws aimed at depriving the Cherokee people of their rights and property in Worchester v. Georgia. The court affirmed a degree of native political sovereignty and annulled state jurisdiction over native lands. It was the final case of the so-called Marshall trilogy, named for Chief Justice John Marshall – the author of the majority decisions – and established major precedents of federal Indian law.

The immediate effect of the decision was to grant protections to the Cherokee Nation, and by extension to other tribes. It could have prevented forced removals, but Jackson was reportedly indignant at the result. According to the famed journalist Horace Greeley, Jackson was said to have responded, “John Marshall has made his decision, now let him enforce it.”

Whether Jackson spoke those words has been contested by historians ever since. But his strong support for removal policy and subsequent refusal to enforce the court’s decision made his position clear. The response was a stern rebuke of the legitimacy of the Supreme Court, the doctrine of the separation of powers, the rule of law and ultimately the Constitution.

The result was the Trail of Tears, in which Cherokee and other native peoples of the Southeast were forced at gunpoint to march 1,200 miles to “Indian territory.” Thousands of Cherokee died during the passage, while many who survived the trek lost their homes and most of their property. Ironically, much of the land on which the Cherokee and other removed tribes were settled was opened to homesteading and became the state of Oklahoma some 60 years later.

Yet, the violent manner by which removal was carried out had been ruled illegal and unconstitutional by the Supreme Court in the Worchester case.

New assault on native rights?

The new administration is showing similar malice toward the legal status and rights of native peoples secured in American law. For example, Trump recently lifted President Obama’s injunction halting the construction of the Dakota Access Pipeline. Last week’s eviction of pipeline opponents from Sacred Stone Camp, led by the Standing Rock Sioux Nation, under threats of arrest has led to renewed uncertainty about native rights.

Statements by Trump’s advisers and government officials calling for the privatization of native lands guaranteed by treaties to seize valuable natural resources have only heightened these concerns.

This rhetoric echos policies that oppressed native people in the past. These include allotment, extending from 1887 to the 1930s, which eliminated communal ownership and led to the taking of millions of acres of native land. This was followed by termination and relocation of the 1950s, aimed at eliminating the legal status of native people while sending individuals from reservations to urban areas, further depriving native peoples of their lands, liberty and culture.

Native treaties are unequivocally assured in Article 6, the Supremacy Clause, of the U.S. Constitution. It states: “all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land…”

Tribal leaders negotiated treaties in good faith to reserve what amounts to a fraction of their original lands, with all attendant rights. Privatizing tribal lands would be a violation of these treaties.

The casual rejection of these covenants heighten the insecurity among native people evoked by Trump. His esteem for Jackson and their shared attitudes toward their legal rights and status should give us pause. That journalists and historians continue to offer positive views of Jackson’s presidency in light of this legacy underscores how the suffering of native people continues to be ignored.

Billy J. Stratton, Professor of contemporary American literature and culture; Native American studies, University of Denver

This article was originally published on The Conversation. Read the original article.

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Supreme Court: Design patents are worth less, but we won’t tell you how much

Supreme Court Matt Wade, CC BY-SA
Supreme Court Matt Wade, CC BY-SA

Timothy Holbrook, Emory University

When the Supreme Court took up Apple’s case alleging Samsung had stolen its patented iPhone designs for Samsung’s own smartphones, product designers, lawyers and corporate executives were paying close attention. The case promised to shed new light on a relatively unexplored area of patent law – design patents.

As distinct from what are called “utility patents,” design patents don’t protect how a device functions, but rather what it looks like. A federal jury had declared in 2012 that Samsung had in fact infringed on Apple’s design patents by copying elements of the iPhone’s design, including rounded corners of the device and the “chiclet” layout of icons on the screen. When someone infringes a design patent, the law requires that person to pay the patent owner “the extent of his total profit” of the “article of manufacture” found to be infringing.

Last year, a federal appeals court had ruled that the law required Samsung to turn over to Apple all the profits it had made on its smartphones – a whopping US$399 million. That ruling was despite the obvious fact that the design patent violations formed only part of the phones’ attraction to consumers, and therefore only part of the basis for Samsung’s profits. The appellate court felt constrained by the language of the statute, however.

Samsung appealed to the Supreme Court, and, despite a rough few months with other problems – including exploding phones and a reinstated patent infringement verdict in another case – came out a winner. On Dec. 6, the court ruled that it was unreasonable to require Samsung to fork over all its smartphone profits.

But the justices deliberately “declined to lay out” any guidance for how to calculate a reasonable amount. As such, they reduced the value of design patents to their owners, which could encourage third parties to go ahead and risk infringing these patents. Minimally, the ruling’s ambiguity ensures the case will drag on for years more, potentially even ending up back in the Supreme Court.

Leaving a major question unanswered

The Supreme Court was asked to decide, effectively, what an “article of manufacture” is. Is it the entire final product – Samsung’s smartphone with preinstalled software, as sold to the consumer? Or is it something less, such as the screen?

Instead, they ducked the question except in its broadest and vaguest form. The justices ruled that the article of manufacture could be something other than the entire product, but did not tell us how much less. In the court’s own words, “the term ‘article of manufacture’ is broad enough to encompass both a product sold to a consumer as well as a component of that product.”

And that’s all it said.

The Supreme Court offered no suggestion as to how other courts in this case or future ones should divide a product to assess what is the relevant portion of the product. All we know is that they will have to do so.

A two-part problem

There are two distinct issues with which the the lower courts will have to wrestle. And if they get it wrong, it could end up back at the Supreme Court again. First, the courts will have to determine what exactly is the “article of manufacture” relating to patented designs. If it isn’t the entire phone, then what part of the phone is relevant?

Second, once the courts have drawn that difficult line, they will then have to figure out how much of Samsung’s profits can be attributed to that slice of the product. In other words, how much value does that portion of the product have?

It is not clear how either of those apportionments will take place. The courts may look to the cousin of design patents – utility patents. Although the analysis in the design patent context is technically different, the result is the same: The court must determine how much value the patented design added to the product. In the context of utility patents, courts have made similar analyses when determining the value of an invention that is a component of a broader product.

For example, in one case, an appellate court had to determine how much value the graphical “date picking” function in Microsoft Outlook added in terms of the entire software product. But guidance from those cases remains elusive as well because every invention and market is likely different. The value added from the invention will depend on myriad factors, such as the importance of the invention to the product and what aspects of the product drive consumer demand. These fact-intensive inquiries do not lend themselves to standardized rules that will be easy for courts to apply uniformly in multiple cases.

Design patents’ value drops

At best, there are two clear takeaways from the Supreme Court’s decision. First, patent holders are not necessarily entitled to the infringer’s profits from the actual product sold. A court may divide the product up into different articles of manufacture in order to assess the appropriate damages. In some cases, patent owners still may be able to get profits for the entire product, but it is no longer a guarantee.

Second, somewhat ironically, design patents have now lost some value. This is specifically because patent holders are not entitled to the profits from the entire infringing product. At times, they may get only a fraction of that amount. Consequently, on average, this case reduces the value of design patents.

This outcome is a bit ironic because, as the Supreme Court itself recognized, Congress long ago – in 1887! – passed the profits statute precisely because courts had gutted the value of design patents by awarding insufficient damages.

Interpreting a lack of guidance

At the time Congress adopted the forfeiture of the design patent infringer’s profits as the measure of damages, there generally was a one-to-one correspondence between a design and a product. For example, a design patent on a carpet corresponded to the actual product itself.

In the modern era, a single product can have a number of patentable design features. Think about cars: The car itself can have various design shapes, along with aspects of the interior, the arrangement of a computer screen in the car and even the cup holders. Any one of these affect the value of the car to some degree.

Congress likely did not foresee this development when it tried to reinvigorate design patents by providing the infringer’s profits as the remedy. Nevertheless, the Supreme Court reasonably believes the efforts of Congress to breathe value into design patents are no longer appropriate in a world of complex products. The statute, in essence, is a product of a time long since gone. Interestingly, though, the court decided to make this adjustment; it did not leave it to Congress to adapt the statute to modern markets.

How much damage has been done to design patents’ value? It will depend on how willing courts are to “slice and dice” an infringing product to determine what the relevant “article of manufacture” is.

It will also depend on how much courts attribute the value of the product to that slice of the product. If the courts permit large slices of the profits to be handed over to the patent owner, then the value of design patents will remain high, if somewhat reduced. But if the ruling means the penalty for infringement is reduced, competitors may be more willing to take the risk of infringing someone else’s design.

There is no doubt that the Supreme Court’s decision reduces the value of design patents. We will have to wait and see – perhaps for another case to come to the highest court in the land – to find out just how much.

The Conversation

Timothy Holbrook, Professor of Law, Emory University

This article was originally published on The Conversation. Read the original article.

U.S. justices to mull president’s power to nominate officials | Reuters #SCOTUS


The U.S. Supreme Court agreed on Monday to review a lower court decision that invalidated part of a former U.S. labor board official’s tenure, in a case that could curb the next president’s power to staff top positions in his or her administration.

The justices will hear an appeal of a 2015 decision by the U.S. Court of Appeals for the D.C. Circuit saying that once President Barack Obama nominated Lafe Solomon in 2011 to be general counsel of the National Labor Relations Board (NLRB), Solomon should not have continued to fill the position on a temporary or “acting” basis pending Senate confirmation.

The appeals court said a 1998 federal law bars anyone from serving in an acting role while they are the nominee unless they were previously the “first assistant” to that post.

The Supreme Court’s ruling in the case could decide if the White House can temporarily fill high-level administration positions with nominees waiting for confirmation, which could take on added importance if the next president faces protracted nomination battles in the Senate.

The case will give the Supreme Court a second chance to weigh in on executive branch authority related to filling positions at the NLRB. In 2014, the court in NLRB v. Noel Canning ruled that three 2013 appointments Obama made to the board while Congress was in recess were invalid.

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Source: U.S. justices to mull president’s power to nominate officials | Reuters