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Shelby County, AL v. Holder: The Crippling of the Voting Rights Act

In Shelby County, AL v. Holder, the Supreme Court, in a 5-4 decision split on ideological lines, declared unconstitutional the formula used under the Voting Rights Act of 1965 to determine which states and localities must receive pre-approval of their voting rights laws. This decision, which effectively ends the preclearance practice meant to preserve minority voting rights, will transform the right to vote for years to come. Once again, relying on the myth of racial progress, the Supreme Court failed to confront the racial balkanization in voting that exists, and it ultimately crippled the role that Voting Rights Act has in limiting it.

This lawsuit was brought by Shelby County, AL. This county, along with the rest of Alabama, as well as Georgia, Louisiana, Mississippi, South Carolina, Texas, Virginia, Alaska, Arizona, and parts of seven other states (known as the “covered jurisdictions”) was required under Section Five of the Voting Rights Act to have any change in their election laws approved (or “precleared”) by the U.S. Department of Justice. The covered jurisdictions were selected for the preclearance requirement according to a formula set out in Section Four of the act. The formula considered the jurisdiction’s past history of voting rights violations, current violations, white and minority voting rates, and other factors. Shelby County argued that both Section Five’s preclearance requirement and Section Four’s coverage formula were unconstitutional. The Court struck down the Section Four formula.

Chief Justice Robert’s opinion for the five-justice conservative majority relied on two premises. First, the opinion stated that each state is due “equal sovereignty,” that is each state has power to regulate matters left to the states, including voting, to the same extent as other states. As innocuous as that might sound, consider Roberts’s second premise: “the conditions that originally justified [the preclearance measures that justified differing treatment of states] no longer characterize voting in the covered jurisdictions.” Slip op. at 2. Roberts pointed to substantial progress in voter participation and the increase in minority elected officials in the time from the passage of the act until now. Id. at 13-15. Yet, Roberts continued, the current coverage formula does not reflect this reality. “Coverage today is based on decades-old data and eradicated practices.” Slip op. at 18. “Racial disparity in those numbers was compelling evidence justifying the preclearance remedy and the coverage formula. There is no longer such a disparity.” Id.

Fisher v. University of Texas: Affirmative Action Lives (Until Next Term, At Least)

In Fisher v. University of Texas, the United States Supreme Court decided by a 7-1 vote to send the case back to the Fifth Circuit to reconsider its decision. The Court held that the Fifth Circuit applied the wrong standard in evaluating the University of Texas’s affirmative action program. The Court held that the “strict scrutiny” standard for Equal Protection cases applies to how to judge such programs.

This case stems from the efforts of Abigail Fisher, a Caucasian female, to have the affirmative action programs at the University of Texas declared unconstitutional. Fisher alleged that she was denied admission to the undergraduate program at the University of Texas because of its affirmative action program. The lower courts upheld the University of Texas program. The Fifth Circuit stated that some deference was due to the judgment of the University of Texas in evaluating whether its affirmative action programs were constitutional.

Writing for the majority, Justice Anthony Kennedy held that this element of deference to the university’s judgment was incorrect. Kennedy analyzed the strict scrutiny analysis applicable to these equal protection cases. Under that analysis, Kennedy first reaffirmed the basic proposition that seeking racial diversity may constitute a compelling governmental interest that the government may pursue. Kennedy also stated settled law in finding that once a compelling governmental interest is demonstrated, the state must narrowly tailor its policies to achieve that interest.

West Virginian Movie, "Angel's Perch," to screen in Morgantown

MORGANTOWN, WV – Los Angeles-based Scrappy Cat Productions will screen their new film, “Angel’s Perch,” on Tuesday, July 2 at 7:30 p.m. at Carmike Morgantown Mall 12.

“Angel’s Perch” was filmed in West Virginia, showcasing the state’s people and natural beauty in partnership with the WV Chapter of the Alzheimer’s Association. The project has also provided members of the West Virginia University College of Law community with a unique opportunity to assist in the production of a feature-length film. WVU College of Law students, alumni and faculty have provided legal services to the film, making the production a uniquely West Virginian project.

Set in the historic logging town of Cass, WV, “Angel’s Perch” is the story of a Pittsburgh architect who returns home to help his grandmother, who is suffering from Alzheimer’s disease. The film deals with the relationship between past and present, memory and loss. It stars Ally Walker (“The Protector,” “Sons of Anarchy,” “Moon Over Miami”); Joyce Van Patten (“Marley and Me,” “Grown Ups”); Ashley Jones (“The Bold and the Beautiful,” “Trueblood”); and Ellen Crawford (“ER,” “Desperate Housewives”).

The filmmakers are using an innovative screening tool called Tugg that allows communities to request screenings in their towns. Admission to the screening is $10, and can be reserved by visitingwww.tugg.com/events/4407.

Professor Tu on the Supreme Court Ruling on Human DNA Patents

In a unanimous opinion, the Supreme Court has found that isolated DNA is not patentable, while cDNA (a version of DNA with the non-coding regions removed) is patentable. 

According to the court, DNA is really about information, and “Myriad [Genetics] did not create or alter either the genetic information encoded [in the genes] or the genetic structure of the DNA. [Myriad] found an important and useful gene, but groundbreaking, innovative, or even brilliant discovery does not by itself satisfy the [statutory patentable subject matter requirement].” 

The court found that the differences between naturally occurring DNA and isolated DNA don’t change the informational component of DNA relative to its naturally occurring state. Thus, simply isolatingDNA from the human genome is not patentable. However, the creation of cDNA in the laboratory does affect this informational component by removing the non-expressing portion (introns) of theDNA sequence, thus producing a non-naturally occurring DNA sequence. This change in the informational content is sufficient to render the cDNA sequence patentable. It is important to note that the court did not rule on method claims, new applications of knowledge about genes, or the patentability of DNA in which the order of the naturally occurring nucleotides has been altered. 

In the short term, the genetic diagnosis market will open up so that other laboratories can offer genetic tests without having to deal with an array of isolated DNA patents for individual sequences. This should result in cheaper tests that are available to more people. However, in the long term, the effects may be more negative. For example, in the absence of patents, biotechnology companies may move to trade secret to protect key discoveries. Alternatively, without patent protection, biotechnology companies may simply choose not to invest in research that lead to diagnostic products.

Womble Carlyle's Vaughn '83 Recognized by Chambers USA

Greensboro, NC—Womble Carlyle attorney and 1983 WVU College of Law graduate Jim Vaughan ‘83 has been recognized in the 2013 Chambers USA report for his work in intellectual property law. Chambers USA annually ranks the leading firms and lawyers in an extensive range of practice areas.

Vaughan is co-chair of the Intellectual Property Practice Group at Womble Carlyle. He has practiced intellectual property law in Atlanta since 1983, devoting his legal career to patent litigation, serving as lead counsel in trials, appeals and in specialty proceedings before the U.S. Patent and Trademark Office.

Vaughan now concentrates his practice on working with corporate clients in matters involving patent litigation, and on analyzing patents to develop corporate strategies involving patents and patent litigation. He also continues his interference, reissue, reexamination, and patent appellate practices.

Womble Carlyle Sandridge & Rice, LLP is one of the largest and most technologically advanced business law firms in the mid-Atlantic and Southeast. The firm’s roots run more than a century deep in North Carolina and its growth mirrors the evolving economy of the State and the region. Established in Winston-Salem in 1876, the firm now comprises more than 550 lawyers in fourteen offices, including Winston-Salem, Charlotte, Greensboro, Research Triangle Park and Raleigh, NC; and Atlanta; Charleston, Columbia and Greenville, SC; Tysons Corner, VA; Washington, DC; Baltimore, MD; Wilmington, DE; and Cupertino, CA.

Boyd Collar Nolen & Tuggle's Bob Boyd to chair American Academy of Matrimonial Lawyers' Georgia chapter

ATLANTA, June 3, 2013 – Boyd Collar Nolen & Tuggle, LLC is pleased to announce the appointment of founding partner Robert D. Boyd as president of the Georgia Chapter of the American Academy of Matrimonial Lawyers. A fellow of the national organization for 20 years, Boyd assumed his leadership role in January 2013, overseeing the 37-member state chapter. 

Boyd has practiced exclusively in family law since 1988. He was recently named Atlanta Family Law Lawyer of the Year for 2013 by Best Lawyers in America, the oldest and most respected lawyer rating publication in the U.S., in which he has been listed annually since 2001. He has also earned accolades from his peers and clients with inclusion among lists published by Super Lawyers and Georgia Trend. He is actively involved in the State Bar of Georgia’s Family Law Section, of which he has previously served as chair, as well as a member of the West Virginia State Bar.

Boyd is a graduate of the United States Military Academy at West Point and served in the Army for seven years as an Infantry officer. He received his law degree from West Virginia University College of Law in 1983. While attending law school, he served as editor-in-chief of the West Virginia Law Review.

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