Selected Community Service includes:
Pro Bono General Counsel to the California Historical Radio Society, 1989 -- ; Herrold Award, 1991
Red Cross, New York City, September 11-21, 2001 as deputy emergency communications manager; see: Bart Lee, KV6LEE, 9-11 -- Amateur Radio in New York, Popular Communications, Sept. 2002.
Pro Bono Litigation Counsel to the Foothill Electronics Museum (through judgment) 1991; Special Counsel for the merger with History San Jose, 2001;
Pro Bono General Counsel, and then President, Greenpeace Foundation of America (in San Francisco), 1978 - 1982, associated with Greenpeace Radio;
Libertarian Party candidate for Attorney General of the State of California (1982; "Profile," in Los Angels Daily Journal, April 1, 1982); libertarian candidate for District Attorney of San Francisco (1979; "Bart Lee, Pinstriped Radical" in San Francisco Examiner, Oct. 17, 1979, p. A-2).
Major cases include:
Yaqub vs. Salinas Valley Memorial Healthcare System, (see 122 Cal. App. 4th 474, 18 Cal. Rptr. 3d 780, (2004) an appeal handled by Charles Kagay) -- a matter in which I handled the now-resolved and successful federal proceedings, and
Bay World Trading, Ltd. vs. Nebraska Beef, Inc., 101 Cal. App. 4th 135 (2002); my successful trial of a UCC commercial dispute and a successful appeal handled by Charles Kagay about a procedural issue on which attorneys' fees turned.
Earlier published appellate decisions are:
Energy Conservation, Inc. v. Heliodyne, Inc., 698 F.2d 386 (9th Cir. 1982); representing plaintiff and successful appellant, refining the sham exception to antitrust immunity.
Liew v. Official Receiver (Hong Kong), 685 F.2d 1192 (9th Cir. 1982 -- settled advantageously in Singapore) also reported New York Times regarding the involvement of the Moscow Narodny Bank and the KGB, Feb. 16, 1986, p. 1: "Russians Sought U.S. Banks To Gain High-Tech Secrets":
"'I always viewed it as a deliberate penetration by the K.G.B. of the American banking system,' said Bartholomew Lee, a San Francisco lawyer involved in a civil case resulting from the effort."
Bullock v. City and County of San Francisco, 221 Cal.App.3d 1072 (1990); in which Charles Kagay and I reversed five Superior Court judges in consolidated appeals on civil rights, zoning, and administrative issues involved in rent control.
Symbolic Control vs. International Business Machines, 643 F. 2d 1339 (9th Cir. 1980); I second-chaired the trial with John Boone, and acted as principal attorney on the successful appellate briefs. The case settled advantageously after the winning appeal. See the excerpt from a related law review article below;
Sportservice vs. Finley, 676 F. 2d 1291 (9th Cir. 1982); I second-chaired the trial with John Frank on the antitrust issue of market definition.
Published federal court rulings include:
Western Liquid Asphalt Cases (a successful imposition of co-conspirator liability), 1976-2 Trade Cases (CCH) ¶ 61,164 (US DC, ND Cal);
Petroleum Products Antitrust Cases (a successfull imposition of Parens Patriae liability), 1978-1 Trade Cases (CCH) ¶ 61,839 (US DC, SD Cal -- see 906 F. 2d 432 (9 Cir., 1990).
Media-reported cases include:
Central Intelligence Agency adv. Hawkins (USDC, ND Cal. 1980); reported in Freedom of Information Practice; I represented the successful plaintiff and achieved a very rare award of attorneys' fees for agency bad faith;
Internal Revenue Service adv. Gold Depository & Loan (USDC, ND Cal. 1985 and appeals); a challenge to illegal mail opening, reported American Bar Association Journal, also reported Insight magazine, Oct. 13, 1986:
"Misdirected Mail -- Attorneys for tax shelter investors and tax protesters say that, increasingly, mail to and from their clients is misdirected to the Internal Revenue Service and opened by the agency, often as part of an investigation of the clients. The mail is reportedly opened at IRS service centers, stamped "Opened in Error" or "Received by the IRS" and forwarded to the addressee.
"In the
past year or so,
according to San Francisco attorney Bartholomew Lee, the drafts of a client's
tax returns were intercepted, opened and stamped by the IRS in Kansas City, Mo.
The envelope, which had been sent by Vaughan Oil Production Co. in Niles, Ill.,
was addressed to Annie Lee Hudson in Chicago. She is involved in litigation
with the IRS over a tax shelter.
*** "
" ... as Bartholomew Lee, a San Francisco lawyer for a company used in one of Rapp's alleged schemes, puts it: 'The U.S. created a person who could in fact, if not intentionally, cause significant damage to a federally insured institution. Now Uncle Sam has to foot the bill for what its errant child has done.'"
Selected transactions and settlements include:
Yaqub vs. Salinas Valley Memorial Healthcare System, U.S. D.C. ND Cal. 2004 -- resolution through mediation of civil rights act damages case;
Perham Foundation Electronics Museum and Foothill College District and History San Jose accords, 1991, 2002;
Koo and Po Shing Corporation RICO settlement accord, 1992;
Northwest Equity and Bank of America accord, 1987;
Phelps Dodge and Gold Depository mining antitrust settlement accord, 1983;
Greenpeace Global Council international formation and settlement accord, U.S. D.C. ND Cal. 1980;
Gypsum Antitrust Cases, U.S. D.C. ND Cal. 1973 - settlement distribution planning, protocols and administration.
For the academically inclined, my legal publications include:
How to Protect Physician Whistleblower - Patient Advocates - from Retaliation, to Benefit Patients -- a legal analysis regarding Summary Suspension, Retaliation, Peer Review and Remedies, by Bartholomew Lee, Attorney at Law, and Gil Mileikowsky, MD. (webpublished by the American Health Lawyers Association, 2008)
http://allianceforpatientsafety.org/protect.php
Read Full Article (PDF format)
http://www.allianceforpatientsafety.org/protect.pdf
In May, 2008, The Simmelweis Society bestowed on me a "Clean Hands" award for safeguarding patient care by way of this article and legal assistance on legislative initiatives.
"The California Civil Code," 5 Journal of Western Legal History 13, (1992) (excerpt below);
"Hard Rock Mining and the Antitrust Laws: When Too Much is Really Too Much, Ninth Circuit Survey," 15 Golden Gate University Law Review 49, (1985) (excerpt below);
"Eliminating Affirmative Defenses in Antitrust Treble Damages Actions: Symbolic Control, Inc. v. IBM, Ninth Circuit Survey," 11 Golden Gate University Law Review 241, (1981) (excerpt below);
"A New and Legal Pun in Chaucer," 89 Law Quarterly Review (UK) 345, 1973 (text below);
"Criminal Trial and Appellate Guide," (associate to Marshall Patner), IICLE, 1974.
Academic associations:
Adjunct Professor, Golden Gate University, San Francisco, 1983 -2003; I authored the Curriculum Guide in Law and Economics (1991) and I also taught the Economic History of Telecommunications, Business Law, Money and Banking, Antitrust and Regulated Industries, Micro- and Macro- Economics and the History of Economic Thought.
Adjunct Faculty, Saybrook Institute, San Francisco, Dissertation Review Board, 1988-91; I authored Legal Implications of Restraints in Licensing Clinical Psychologists, for The Saybrook Forum, (July, 1989) and acted as pro bono Special Counsel to Saybrook Institute; in 1990 Saybrook's President presented me with a Distinguished Service Award.
University of Chicago Law School, Instructor and Senior Harry A. Bigelow Teaching
Fellow, 1971-73; I designed and administered the research and writing program and enjoyed independent research in economics and in legal history, leading
to publication.
Further academia-related publications include:
- Planning for the Future -Singapore Style, Asia Cable (Feb. 1986)
- Domesday Book, Smithsonian magazine (Volume 17, Number 6 Sept. 1986 Letters) (text below)
Testimony:
- Hearings on H.R. 2060 and H.R. 2204 and Other Proposals Restoring Effective Enforcement of the Antitrust Laws, before the Subcomm. on Monopolies and Commercial Law of the House Comm. on the Judiciary, 96th Cong. 1st Sess. 258, 345 (1979).
- Hearings on H.R. 8359, before the Subcomm. on Monopolies and Commercial Law of the House Comm. on the Judiciary, 95th Cong. 1st Sess. 467 (analysis for subcommittee counsel) (1977).
- Signatory, Economists' Open Letter to President Clinton re Price Controls in Healthcare Reform (Washington Post March 16, 1994) followed by Congressional correspondence.
- California Senate Committee on Constitutional Amendments re proposed amendment SCA 39, (1981) relating to affirmative action.
- State Bar of California, Hearing, Public Protection Committee, (1989).
- Qualified as an Expert Witness (on punitive damages), Securities Arbitration, (1992).
- Qualified as an Expert Witness, Professional Standards, (1981 and 1986).
Selected academic texts and excerpts:
- The Civil Law and Field's Civil Code in Common-law California -- a Note on What Might Have Been
By Bartholomew Lee [excerpt of the beginning text]
[5 Western Legal History 13, no. 1 Winter/Spring 1992].
This note is dedicated to the memory of the late Professor Grant Gilmore, in whose legal history seminar it first evolved at the University of Chicago Law School some twenty years ago {in 1972}. Bartholomew Lee has been a member of the California Bar since 1973 and is a professorial lecturer at Golden Gate University, San Francisco.
A California lawyer who consults the civil code is consulting a statute whose structure dates back two millennia to the civil law of Rome. The code's modern architect, New York's David Dudley Field, envisioned a civil-law jurisprudence for his code. It was enacted in California in 1872 as a result of the nineteenth-century law-reform movement, with all of its civil-law ambitions. California's enactment also had considerable help from Stephen Field (later Justice Field of the United States Supreme Court, thanks to his brother's intervention with President Lincoln). Stephen probably took his brother Dudley's codes to California with him in his steamer trunk. David Dudley Field financed many years of reform agitation with the fat fees he collected from the robber barons of the day. Perhaps no nineteenth-century lawyer in this country had a more challenging practice for higher stakes; certainly none applied its proceeds more nobly. Despite the thrust of the law-reform movement, no civil-law jurisprudence evolved for the California Civil Code. The common law and its antithetical processes assimilated the code as enacted. The analyses of John Norton Pomeroy in the 1880s neutralized the civil-law import of the civil code in California, leaving it just another statute to be strictly construed.
Field's civil code stemmed directly from a sustained and nearly successful assault on the judicial process. The powers of the courts – in ascendancy since Lord Coke's conflicts with royal authority – had to best the challenges of the Jacksonian coalition and the related law-reform movement. These last were, ironically, the later standard-bearers of Coke's old client, the legislature. In many ways the most successful instrument of those challenges, the civil code, too, failed – of adoption in New York, and in application in the adopting states, especially California. The adoption of Field's civil code in several western states, an almost accidental high-water mark, remains as the only statutory recognition of nearly a century of debate and controversy [1] about codification of the common law of civil obligation. [2] The enacting western states were the Dakota Territory, in 1865; California, in 1872; Idaho, in 1887; and Montana and Colorado, in 1895.
The nineteenth-century codification movement failed. The codes of this century differ widely in intent and effect. [3] One reason the movement failed was simply that it could only argue in its early days: it had no written code to put forward, but only the proclaimed virtues of codification. By the time it had a code, Field's New York Draft of 1865, [4] a raging opposition could articulate the persuasive virtues of case-by-case common-law jurisprudence. [5] The legislatures, and in New York two vetoing governors, chose the known and rejected the code. [6]
Perhaps a draft code thirty years earlier might have given the codification movement the weapon needed to win its campaign. A set of nationally adopted codes, before the Civil War, could have made for a different legal world. But Field's code came too late. Its fitful adoption in five states gave it little effect. What effect it had, in encouraging corporations and confusing domestic relations, cut against its adoption elsewhere. [7]
In one effect Field sought for his code, the engendering of a new European-style civil-law jurisprudence for American law, the enacted codes failed totally. This note will examine this hope of Field's and the related thrust of the codification movement, and how they came to naught in California. California was a territory knowing only civil law from Spain and Mexico. Yet even in California, the civil law could hold no adherents despite calls from the earliest days for its positive enactment. In December 1849, California's governor had called upon its first legislature to enact the Civil Code of the State of Louisiana; [8] in January 1850, leading lawyers of San Francisco petitioned the legislature to adopt the civil law. After a report to the contrary, the legislature declined, and instead on April 13 enacted that the common law be the rule of decision in the courts. [9]
Shortly thereafter, Field's codes, as the fruit of the law-reform movement, fell on seemingly fertile western soil. Still, the civil- law principles of code and codifier never really saw the light of the juristic day. A vigorous thicket of common-law cases over-grew and overs haded them. The twentieth century's civil and commercial codes cleared the thicket, area by area. [10] Any hope for a civil-law statutory jurisprudence had, however, been dead for fifty to a hundred years.
Speculation nonetheless has its uses in history, and the study of what might have been (particularly in California) can also illumine our present. As Grant Gilmore, a close student of the history of the law as well as the law itself, explained, "The historian who shows us that what in fact happened need not have happened at all enriches our understanding of the past and, consequently, puts us in a position where we can deal more rationally with the infinitely complex problems which I confront US." [11]
The forces that overruled the enacted codes still shape our law today.
The Genesis of Field's Civil Code in the Codification Movement
"All that is the case," [12] at least in its most general aspects, varies little over time. A century and a half ago, as now, there were two western legal systems. The common law, with its case-by-case system of precedents, and doctrines of stare decisis, along , with its companion equity system to correct its excesses, prevailed in Anglo-American jurisdictions. The civil law, with its comprehensive, legislated codes of law and theorists of the caliber of Puffendorf and Pothier, prevailed on the Continent. Neither system was without historical lineage of some distinction – the common-law phrase ran "The memory of man runneth not to the contrary," [13] while the civil law was generally satisfied to trace itself to the Romans and the sixth-century Corpus Juris Civilis, Justinian's Institutes.[14] Both legal systems sufficed for the day-to-day purposes of resolving cases and controversies, providing normative principles, and generally running their civilizations despite occasional civil wars. As Gilmore once challenged,. "Most cases – perhaps all cases – are sensibly, or even 'correctly,' decided as of their own time and place." [15] Both legal systems gradually changed and adapted themselves to the conditions and complexities of the times. Such changes and adaptations, simplifications and conformities, could and did occur only through the work of thousands of lawyers, judges and scholars. The labors were labored, the cases decided and commented upon, the codes written and redacted. Both this process and its resulting law were sometimes painfully slow, as exemplified by Jarndyce v. Jarndyce, in Charles Dickens's Bleak House, published in London in 1852. The law on the Continent as well as in England still managed more or less to keep up with social and commercial realities.
Nevertheless, the dichotomy between common law and civil law is real and is reflected in intellectual history as well, as the opposition between the British empiricists (for instance, Berkeley and Hume) and their predecessors such as Aristotle, on the one hand, and the continental system builders (for instance, Plato, Descartes, Kant, and Hegel), on the other. A similar split appears between the English individualist free-market theorists such as Adam Smith and Alfred Marshall and the continental socialists, especially Karl Marx. Isaiah Berlin noted the different ways of thinking in his essay on Tolstoy, The Hedgehog and the Fox, quoting Archilocus: "The fox knows many things, but the hedgehog knows one big thing."[16] Berlin could have been commenting on the civil law and the common law when he wrote:
“For there exists a great chasm between those, on one side, who relate everything to a single central vision, one system less or more coherent or articulate, in terms of which they understand, think and feel – a single, universal, organizing principle in terms of which alone all that they are and say has significance – and, on the other side, those who pursue many ends, often unrelated and even contradictory, connected, if at all, only in some de facto way ... moving on many levels, seizing upon the essence of a vast variety of experiences and objects – for what they are in themselves, without ... seeking to fit them into, or exclude them from, anyone unchanging, all-embracing, sometimes self-contradictory and incomplete, at times fanatical, unitary inner vision.” [17]
As part of the process of the law's change and adaptation, periodic and sometimes related law-reform movements agitated throughout the nineteenth and into the twentieth centuries. One such movement reached its culmination in England in the 1870s with the introduction of procedural reforms that would, it was hoped, make any repetition of a case like Jarndyce v. Jarndyce impossible. On the Continent, an earlier process had led to the adoption of the celebrated Code Napoleon of 1804, working a unification of the customary law of the North of France with the Roman law of the South.
A third such movement occupied the minds of many of America's best lawyers in the early part of the nineteenth century. It ultimately stemmed from Jeremy Bentham's 1776 criticism of Blackstone (the "Fragment on Government"). Bentham attacked "judge-made" law as opposed to legislation. The American law- reform movement's battle cry in many a rhetorical battle was "Codification." This movement, after Bentham, personified its archenemy as the common law, from its aspect of case-by-case ex-post-facto decision, case-by-case judge-made special legislation. In what the reformers objected to, many saw the special virtue of the common-law process. At a later date, Oliver Wendell Holmes would write (in 1881): "In substance the growth of the law is legislative. ...It is legislative in its grounds. The very considerations which judges most rarely mention, and always with an apology, are the sacred root from which the law draws all the juices of life." [18]
Many of the later opponents of codification, notably James C. Carter of the New York Bar (a leading member of the prevailing historical school of jurisprudence), were of the opinion that only judges, through the common-law process, should make law. [19] Such law would be made as factual situations, sure to re-arise, called it forth from a judiciary skilled in the process. Carter and others, in the debate with Field, occasionally went so far as to doubt the ability of legislatures to provide workable or just rules in advance. [20]
On the right on the issue of codification were the conservatives – Chancellor Kent, Rufus Choate, Carter, and many of the most distinguished lawyers in America. In the early period, Jacksonian democracy had seemed everywhere – "King Andrew" had threatened their culture and the reformers were threatening their law. The reformers wanted a code, by which men could know the law, and by which they could be free of judges and their class. They wanted a code perhaps like Napoleon's celebrated code, but a code to do away with the mysteries of the common law, and the abuses of the common law. [21] In reaction to the reformers' hopes for codification on the European model [22] (contrary to some comment, [23] the European model was pervasive), Choate would write:
“Foreign examples, foreign counsel – well or ill meant – the advice of the first foreign understandings, the example of the wisest foreign nations, are worse than useless for us. Even the teachings of history are to be cautiously consulted, or the guide of human life will ) lead us astray. We need reform enough, Heaven knows; ; but it is the reformation of our individual selves, the bettering of our personal natures; it is a more intellectual industry; it is a more diffused and higher culture; it is a wider development of the love and discernment of the beautiful in form, in color, in speech, and in the soul of man-this is what we need-personal, moral mental reform – not civil – not political! No, no! Government, substantially as it is; jurisprudence, substantially as it is; – the general arrangements of liberty, substantially as they are; the Constitution and the Union, exactly as they are-this is to be wise, according to the wisdom of America.” [24]
Of like-minded conservatives, who refused reform, and even of lawyers in general, the Jacksonian "mob" was said to have a simple view: "A successful lawyer is a sort of licensed knave, refined perhaps in his mode of cheating but really little better than a prime minister of Satan or at least a member of his Majesty's cabinet." [25] *** [The note continues, see 5 Western Legal History 13 at 21 ff.]
1. The State of Georgia enacted a set of political, penal, practice, and civil codes, unrelated to Field's, in 1860. With respect to these codes, the Georgia Code commissioners wrote: "[We construed] the Legislative will. ..as requiring a Code, which should embody the great fundamental principles of our jurisprudence from whatever source derived, together with such Legislative enactments of the State, as the wants and circumstances of our people had from time to time, shown to be necessary and proper." The Code of the State of Georgia, prepared by R. H. Clark, T.R.R. Cobb, and D. Irwin (Atlanta, 18611 [page] iii. But, as the legislative committee report accompanying these codes makes clear, they were essentially a set of revised local statutes, like the revised statutes of almost every other state, along with the statement of general rules. The principle of codification was "to attempt no change or alteration in any well-defined rule of law which had received Legislative sanction or judicial exposition, and to add no principle or policy which had received the condemnation of the former, or was antagonistic to the settled decisions of the latter." Ibid. at viii, Report of Senator Hines Hold et al. Lawrence M. Friedman's magisterial History of American Law (New York, 1973) 353-54 [hereafter cited as Friedman, American Law] also presents the Georgia Code, and illumines the social and legal realities of the times. [2009 note: I was surprised to see my research on the Georgia Code etc. in Friedman’s American Law, but then I recalled lending a draft of this paper to a history graduate student circa 1972 during Friedman’s tenure as a visitor at Chicago]. Friedman's earlier critique of the law-reform movement is necessary to any understanding of law's history in America: idem, "Law Reform in Historical Perspective," St. Louis University Law Journal 13 (1969)351. His discussion of "The Civil Law Fringe"(American Law, ch. 2) makes clear how little the indigenous civil law affected legal development in the states south of Georgia and west of Mississippi. More recent scholarship has shown that even California's community property laws, commonly thought to derive from its civil-law heritage, had little to do with such abstractions, and much more to do with providing incentives to ladies of quality to get on the boats for the Golden Gate. Ray August, "The Spread of Community-Property Law to the Far West," Western Legal History 3 (1990) 1:34.
2. See note 21 infra.
3. See generally Grant Gilmore, "On Statutory Obsolescence," University of Colorado Law Review 39 (19671461 [hereafter cited as Gilmore, "Statutory Obsolescence"].
4. See note 53 infra.
5. See note 19 infra.
6. See text at note 51 infra.
7. For example, see the note by Mark DeWolf Howe, ed., Readings in American Legal History (Boston, 1949) 523 [hereafter cited as Howe, Legal History), to the effect that the California Civil Code had permitted an enormous growth in the power of corporations, resulting in an undesirable popular reaction. Howe also reprints a hilarious account from the Los Angeles Weekly Express (December 18, 1873) of some tangled marital relations caused by the civil code, as reflected in The People v. Oades. This was reprinted in the American Law Review 20 (1886) 764, as part of a campaign against codification. The newspaper account, and the story behind it, appear in Stuart B. Walzer, "A Strange Story," Western Legal History 4 (1991) 265.
8. Journal of the Senate of the State of California at their first Session begun and held at the puebla de San Jose on the Fifteenth of December, 1849 (San Jose, California, 1850) 30,33.
9. California Laws, ch. 95. See generally Richard R. Powell's thorough history of law in California, Compromise of Conflicting Claims (Dobbs Ferry, 1977) 87ff. Powell reproduces the handwritten petition as Appendix D, with the Report, which appears at California Reports (San Francisco, 1850) 1:588-604. The Senate Journal of 1850 also prints the Report [of Mr. Crosby] on Civil and Common Law, at 459. Another interesting history of California law touching on these subjects is in the pamphlet by William J. Palmer and Paul P. Selvin, The Development of Law in California (St. Paul, 1983). 10. See Gilmore, "Statutory Obsolescence," supra note 3 at 4, on the role of Article Nine of the Uniform Commercial Code: "to cut away the tangle of underbrush and reveal the unified structure of security law that had already grown up."
11. Grant Gilmore, "The Age of Antiquarius: On Legal History in a Time of Troubles," University of Chicago Law Review 39 (1972) 487.
12. Cf. Ludwig Wittgenstein, Tractatus Logico-Philosophicus (London, 1963) 7.
13. William Blackstone, Commentaries on the Laws of England, 4 vols. (Oxford, 1768) 1:67.
14. The Roman jurist Gaius (A.D. ca. 110 – ca. 180) and his Institutes preceded Justinian by several hundred years, but Justinian ordered destroyed all the predecessors of his code, according to a tradition correctly doubted by Gibbon. See Leo Deuel, Testaments of Time (Baltimore, 1965) 47.
15. In Grant Gilmore's discussion of the celebrated case of the Bezoar stone, Chandelor v. Lopus, 79 Eng. Rep. 3 (Ex. 1625), he concludes that "most cases – perhaps all cases – are sensibly, or even 'correctly,' decided as of their own time and place." Idem, "Products Liability: A Comment," University of Chicago Law Review 38(1970) 107. A Bezoar stone was an animal's gut stone, thought to have restorative powers. Robert Burton, The Anatomy of Melancholy (London, 1621), Pt. 2, sec. 5, Memb. 1, Subs. 5. On the Continent and in England, the practical business of the day has always required occasional adjudication. A body of law that came to pervade both the English and continental systems arose among traders and seafarers; it is known as the Law Merchant. From it, today's sales law, insurance law, Admiralty, and the law of negotiable instruments all derive. As a modern scholar concludes: "Spontaneity allowed the system to adapt to different commercial and political circumstances and facilitated legal changes in accordance with merchant practice. Deliberate planning was avoided because it would have interfered with the market's fluctuating supplies and changing prices." Leon F. Trackman, "Law Merchant," Humane Studies Review 2 (1984)2:1,3.
16. Isaiah Berlin, The Hedgehog and the Fox (New York, 1965) 1.
17. Ibid. at 1-2.
18. Oliver Wendell Holmes, The Common Law (Boston, 1881135. For Justice Cardozo, both the legislator and the judge must legislate: "Each indeed is legislating within the limits of his competence. No doubt the limits for the judge are narrower. He legislates only between the gaps. He fills the open spaces in the law." Benjamin H. Cardozo, The Nature of the Judicial Process (New Haven, 1921 0 113-14. ln 1928 the dean of the legal realists, Karl N. Llewellyn, summarized thus the constraints of the judicial process, however legislative: “Four rules. ..form the basis of American case law procedure. 1. The court must decide the legal dispute that is before it. 2. The court can decide nothing but the legal dispute before it. 3. All cases must be decided on a rule of law of general applicability. .. 4. Everything, but everything, said in an opinion is to be read and understood only in relation to the actual case before the court.” Idem, The Case Law System in America (Chicago, 1989) 14.
19. See Roscoe Pound's summary of Carter's views in Alison Reppy, ed., David Dudley Field Centenary Essays (New York, 194917 [hereafter cited as Reppy, Field Essays]; see also James C. Carter, Law: Its Origin, Growth and Function (New York and London, 1907) 118, 204 [hereafter cited as Carter, Law: Its Origin], where he calls legislation, in its impact on private law, "a mere fringe."
20. Carter, Law: Its Origin, supra note 19 at 118 and 204.
21. For the flavor of the debates of this and related legal issues of the early nineteenth century, see generally Perry Miller, ed., The Legal Mind in America (Ithaca, 1962) [hereafter cited as Miller, Legal Mind], and Howe, Legal History, supra note 7 at 433 ff.
22. As this paper will show, Field himself structured his code on the Louisiana Code of 1825, which in turn had been based on the 1804 Code Napoleon. To this day, calls to implement some civil-law approach persist; see, e.g., Charles Maechling, Jr., "Truth in Prosecuting: Borrowing From Europe's Civil Law Tradition," American Bar Association Journal (January 1991) 59. Dudley Field's career itself has also been seen as a call for law reform by the lawyers of today: John Steele Gordon, "Reforming the Law," American Heritage Magazine (September 1991) 18. It should, however, be remembered that Field defended not only the robber barons but Boss Tweed himself; see Phillip J. Bergan, Owen M. Fiss, and Charles W. McCurdy, The Fields and the Law (San Francisco and New York, 1986). 23. "Comment, Swift v. Tyson Exhumed," Yale Law Journal 79 (1971) 298 [hereafter cited as "Comment"].
24. Rufus Choate, "The Position and Function of the American Bar" (1845), in Miller, Legal Mind, supra note 21 at 263; Works of Rufus Choate (Boston, 1862) 1:419.
25. From James Jackson, "Law and Lawyers" (1846), in Miller, Legal Mind, supra, note 21 at 275; cf. James MacCrate, "Populist and Elitist Conceptions of the Bar," American Law Institute – American Bar Association Continuing Legal Education Review 5 (March 1, 1974) 4 [hereafter cited as MacCrate, "Populist and Elitist Conceptions"]. ***
-- -- -- --
A New and Legal Pun in Chaucer
by Bartholomew Lee [THE LAW QUARTERLY REVIEW Volume 89 July 1973 (London), [page] 345]
A Somonour was ther with us in that place,
That hadde a fyr-reed cherubynnes face
General Prologue to the Canterbury Tales, lines A624-25.
The common law writ of fieri facias, which antedates Chaucer by more than a century [1] persists to this day. [2] A noted commentator on legal language has remarked "the red-faced sound of this writ has inspired legal puns at least since the end of the sixteenth century." [3] The writ executes the judgment of a court in a lawsuit; through it the judge directs the sheriff to sell property belonging to the defendant, to make up the fund that will pay the award the plaintiff has won. The fieri facias takes its name from the phrase "cause there to be made." A writ roughly contemporaneous to Chaucer's study of the law (i.e., writs) as a young man [4] will illustrate:
“The king to the sheriffs of London, greeting. We command you that without delay you cause execution to be made [fieri faciatis] of the judgment lately rendered in our court of London in a plea which was in our court without our writ between A. and B. concerning a debt of twenty shillings which the said A. demands from the aforesaid B. Witness.” [5]
This writ is substantially the writ Chaucer had to fear in the Trespass and Contempt suit he defended and settled in 1379 [6]; the fieri facias in general came to be the bane of defendants in general in Chaucer's litigious era.[7]
The summoners of the medieval period formed a numerous class of officers in both the ecclesiastical and the common law courts. They summoned defendants to court: summone per bonos summonitores is one of the commoner phrases in common law writs. [9] Common law summoners acted as sheriffs' bailiffs as late as Blackstone. [10] As summoners, at least as early as the fourteenth century, they fulfilled their office by serving defendants with notice of a lawsuit, legal processes, and copies of writs. [11] One particular writ known as the Significavit provided any ecclesiastical summoner of extortionate bent with a potent threat. Defiance of the summoner's demands could ultimately result in Chancery issuance of this writ, and arrest and imprisonment. [12] Chaucer warns of this writ in his description of the Summoner (A662).
However similar or distinct the duties of summoners to common law and ecclesiastical courts may have been, in the initial lines of Chaucer's description of the Summoner, it is unclear which court system he serves. Chaucer simply presents a Somonour who bears a fyr-reed ...face, making his affiliation explicit only after the description of his affliction – the disease which makes him so saucefleem that children feared his visage.
The poet's propensity for puns and related word play has recently been persuasively demonstrated. [13] In the two opening lines of the Summoner's description (A Somonour was ther with us in that place, that hadde a fyr-reed cherubynnes face) he has described the Pilgrim whose office most closely associates him with the bearing of writs, with a play on the name of one of the leading writs of the day – the fieri facias. The description of the Pilgrim's disease no doubt reflects back upon the writ. The fyr-reed ...face that the Summoner bore might be too horrid to contemplate; but just so horrid would be a debtor's contemplation of the fieri facias by which the sheriff sold his substance. The several lawsuits against Chaucer in the period 1388-98, for Debt, [14] evidence the probability of Chaucer's awareness of the personal relevance of the writ.
To the educated and legally knowledgeable members of Chaucer's audience, the implications of the pun would not be lost: the writ could only be unpleasant to have to face. The adjective cherubynnes, while it adds something to the Summoner's ultimately ecclesiastic connections, also adds a tinge to the pun. Medieval artists consistently painted their cherubim with flame coloured faces. [15] The Oxford English Dictionary supplies a curious early (1611) dictionary definition: ". ..cherubin-faced, having a fierie facies like a cherubin." [16]
1. Dr. Elsa de Haas and G. D. G. Hall (eds.), Early Registers of Writs, Publications of the Selden Society, Vol LXXVII., (London, 1970), at p. 325, present a fieri facias from a Register of writs dating from the middle of the thirteenth century.
2. See Rules of the Supreme Court, Order 45, and J. H. Koffler and R. Reppy, Handbook of Common Law Pleading, (St. Paul, Minn., 1969), p. 595, for the position in America.
3. David Mellinkoff, The Language of the Law (Boston, 1963), p. 76, citing the Oxford English Dictionary, (fieri facias, b) which supplies" 1594 [Thomas] Nashe Unfort[unate] Trav[eller] , Works ([London,] 1601) V: 44 Purseuants [i.e., plaintiffs in law suits] with red noses. ..a pursuant. ..with the verie reflexe of his firie facias."
4. J. M. Manly, Some New Light on Chaucer (New York, 1926), pp. 7-18.
5. Haas and Hall, op. cit., p. 116. This writ dates from the first third of the fourteenth century.
6. Martin M. Crow and Clair C. Olson (eds.), Chaucer Life Records, (Oxford, 1966), pp. 340-342.
7. Haas and Hall, op. cit., p. xii n. 4, place the first great flourishing of the common law writs well into the fourteenth century.
8. M. M. Bigelow, History of Procedure in England, (Boston, 1880), p. 223.
9. See, e.g., Haas and Hall, op. cit., p. 318.
10. Sir William Blackstone, Commentaries on the Laws of England, (Oxford, 1770) 3:279.
11. W. C. Bolland (ed.), Yearbooks 7 Edw. II (1813-14), Publications of the Selden Society, Vol. XXIX, (London, 1922), p. xi.
12. Muriel Bowden, A Commentary on the General Prologue to the Canterbury Tales, 2nd ed. (London, 1967), pp. 267-268.
13. See, e.g., Helge Kokeritz, "Rhetorical Word Play in Chaucer," PMLA 69 (1954): 937; and Paull F. Baum, "Chaucer's Puns," PMLA 71 (1956): 225.
14. The writs and documents appear in Crow and Olson, op. cit., pp. 384-401.
15. Nevill Coghill, trans., The Canterbury Tales, (Baltimore, 1963), p. 509.
16. Oxford English Dictionary, (cherub, 5), quoting Randle Cotgrave, A Dictionarie of the French and English Tongues (London (?), 1611).
-- -- -- --
- Domesday Book
[Smithsonian magazine (Volume 17, Number 6 Sept. 1986) Letters]
"In the good old days of the Domesday Book, a 'doom' was a judgment in a legal matter. The judgment day from which the book's title derives was the day on which the property ownerships noted in the book were decided, as well as recorded. The Officers of the King who rode circuit to compile the information also judged any disputes, of which there were many. Their appearance at each place was its judgment day. We derive all our legal notions about the importance of record from the Domesday Book, our first record and the first time the King of England went on the record for posterity. Readers with a philological bent will enjoy looking up 'domesday' and 'doom' in the Oxford English Dictionary."
-- -- -- --
- Symbolic Control Inc. V. IBM: Eliminating Affirmative Defenses in Antitrust Treble Damage Actions
[an excerpt, the beginning of the text]
by Bartholomew Lee [11 Golden Gate University Law Review, no. 1, Spring, , p. 241].
Member of the Bar of the State of California; B.A. St. John's College, 1968; J.D. University of Chicago Law School, 1971. This Note owes much to the creative and analytic thought of the senior litigator for plaintiff in Symbolic Control Inc. v. International Business Machs., John H. Boone, Esq., of San Francisco, to whom the author is grateful for both his conceptual clarity and encouragement over the years, and also for the privilege of second-chairing the trial in Symbolic Control with him.
A. INTRODUCTION Symbolic Control Inc. v. International Business Machines Corp. [1] is necessarily a tilting at windmills story. Anybody v. IBM is a tilting at windmills story, and the antitrust enterprise, from a private plaintiff's view (or that of its counsel) is a fairly quixotic endeavor. The chances of a recovery are small, the journey to treble damages is hard and long, often illusory, and full of traps, pitfalls, detours and wrong ways, not to mention rich and powerful adversaries. Nevertheless, once in a while the national policy of the antitrust laws, furthering competitive markets, is effected by a private recovery, and once in a while such an award survives appeal. Symbolic Control has not yet made it, but this term's opinion by the Ninth Circuit, which reaffirms an important policy principle in private antitrust law, will help significantly. Symbolic faced an affirmative defense upon which IBM prevailed at trial as a matter of law. The Ninth Circuit reversed, denying the affirmative defense as a matter of law, and remanded for a new trial. The reversal has significance not only to understanding the proper role of affirmative defenses in private treble damage actions, but also for the antitrust bar, Congress, and the courts in the continuing struggle with the so-called "passing-on" defense, which most recently manifested itself in Illinois Brick v. Illinois [2] and a series of proposed bills in Congress to overrule it. [3]
If to seek private redress for antitrust injury is indeed a quixotic quest, and treble damages in reality all too often turn to be the same sort of mirage that so often bedeviled Don Quixote, the private plaintiffs' bar, like Don Quixote, nonetheless continues to ride on to new adventures. One purpose of this Note is to make that ride a little easier, and the goal a little more sure, by suggesting a general principle inhering in several leading cases, and illustrated by Symbolic Control, namely: Affirmative defenses have no place in private treble damage actions, by reason of the national policy in favor of effective enforcement of the antitrust laws. In Symbolic Control, the Ninth Circuit held that an affirmative defense analogous to assumption of risk (namely, that injury from "ante-natal" violations, pre-dating the business existence of the plaintiff, escapes private redress) provides no bar to the private plaintiff's recovery. So, too, have other affirmative defenses been read out of the antitrust laws, and so too should they all be. Moreover, application of this principle incidentally solves the symmetry dilemma that so troubled the Supreme Court in Illinois Brick, and denial of the "passing-on" defense to promote recoveries need not require any symmetrical limit of privity to deny recoveries to other plaintiffs.
An Historical Excursus The antitrust plaintiff's bar need not lose heart that their endeavor is so quixotic, because Don Quixote de la Mancha himself was the first trust buster. Shortly after jousting the wind- mills, the good Don came upon an army of knights with whom he did battle (to Sancho Panza's horror because all he could see was a vast flock of migrating sheep). [5] All the sheep in Spain, however – between two and seven million of them – belonged to one giant wool monopoly, the Mesta, [6] which annually migrated them North to South. The Mesta abused its monopoly powers and privileges, riding roughshod over farmers' lands and through town squares, and one of its herds, on the Eastern sheep route known as the "highway 'de la Mancha,'" was a suitable adversary for trust busting, albeit somewhat muddled, in the fashion of the knight Don Quixote. (He killed seven sheep when all was said and done.) Perhaps the present day antitrust plaintiffs' bar simply has Mestas of its own to contend with, IBM for example, one hopes somewhat more effectively than did Don Quixote.
Facts and Law in Symbolic Control The Symbolic Control case involved a type of computer program ("software") commonly called "APT" (an acronym for Automatically Programmed Tools). An APT computer program or "APT Processor" is used with a computer (sometimes called "hardware") to allow a machine tool parts programmer to prepare from engineering drawings an operating type for numerically controlled ("NC") machine tools ("NCMT"). *** the record contained a good deal of testimony proving that [Symbolic’s] APT/70 presented very stiff competition for IBM's NC 360. IBM's 360 was, however, bundled with its hardware and "free," and continually improved and maintained. Symbolic Control contended that by this practice IBM intended to, and did exclude Symbolic Control and "capture the market," and Symbolic Control put into evidence a classic Sherman Act § 2 intent document, authored by IBM's marketing manager in 1971:
“The N /C strategy of this group was to capture the N /C marketplace within an allowable budget ($300,000 per year). To do this sound management decisions were made. ... In conclusion, the competency of the N /C development group and its strategy to capture the N /C highly competitive market has done just that and IBM is currently number one. This group has created and is protecting on a world- wide basis over $300,000,000 of hardware drag along since 1969 to present. This was done with a budget of around $300,000 per year (around one percent).” *** [the note continues...]
1. [1980] Trade Cas[es]. (CCH) ¶ 63,427 (9th Cir. July, 1980) (per Browning, J.; the other panel members were Kennedy, J., and Dumbauld, D.J., sitting by designation), amended, Nov. 19, 1980, rehearing denied, Nov. 24, 1980, rev'g, [1976] Trade Cas. ¶ 60,723 (N.D. Cal. 1975) (per Zirpoli, J.) (While the Ninth Circuit Survey was at the printer, Symbolic Control Inc. v. International Business Machines Corp. was published in 643 F.2d 1339 (9th Cir. 1980)).
2. 431 U.S. 720 (1977); see generally P. Areeda & D. Turner, Antitrust Law, § 337(a)-(g) (2d ed. 1978); Landes & Posner, Should Indirect Purchasers Have Standing to Sue Under the Antitrust Laws? An Economic Analysis of the Rule of Illinois Brick, 46 U. Chic. L. Rev. 602 (1979).
3. E.g., H.R. 8359 & 8516-17, 95th Cong., 2d Sess. (1977); H.R. 2060 (the Rodino bill), ***
4. The Supreme Court in Illinois Brick stated, "we conclude that whatever rule is adopted regarding pass-on in antitrust damage actions, it must apply equally to plaintiffs and defendants. ..." 431 U.S. at 728. This Note respectfully suggests that this conclusion of the Court was exactly wrong by reason of the Court's consistent policy stance over the years in favor of recovery against antitrust violators to further the competitive goals of the antitrust laws.
5. Cervantes, Don Quixote, Bk. I, Ch. XVIII at 170 (Signet ed. 1964).
6. See J. Klein, The Mesta, a Study in Spanish Economic History passim (Harvard ed. 1920). Klein noted Don Quixote's encounter with a Mesta flock on the sheep highway de la Mancha. Id. at 19 n.2. Mesta abuses, particularly during the migrations, frequently gave rise to litigation. Id. at 21 n.2. Klein reported estimates (which he doubts) of as many as seven million sheep in the Mesta flocks, in the approximate period of Don Quixote's attack on the vast ovine army before him. The author is indebted to Ruth E. Carsch, Consulting Information Specialist, for finding Professor Klein's most informative study.
7. Brief for Appellant, Symbolic Control Inc. v. International Business Machs., [1980] Trade Cas. (CCH) ¶ 63,427 (9th Cir. 1980). ***
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- Hard Rock Mining and Antitrust Laws: When Too Much Really Is Too Much, Even in the Ninth Circuit
by Bartholomew Lee [15 Golden Gate University Law Review, no. 1, Spring 1985 [page] 49; opening text]
Adjunct Professor in Law and Economics, Golden Gate University, San Francisco, California; Admitted to California Bar 1973; B.A. St. John's College, 1968; J.D. University of Chicago Law School, 1971.
I. INTRODUCTION: ANTITRUST IMPLICATIONS OF ORE RESERVES
“There is a principle of too much; phrased colloquially,
when a pig becomes a hog it is slaughtered.”
So said the court in a recent tax case, [l] but the country metaphor applies to mining as well. This is a note on the uneasy amalgam of antitrust and mining law. Antitrust law may well forbid what mining laws might otherwise permit. Mineral ore can be monopolized through the aggregation of reserves and exclusion of competitors by litigation. Two recent Ninth Circuit cases, Clipper Exxpress v. Rocky Mountain Motor Tariff Bureau, Inc., and Energy Conservation, Inc. v. Heliodyne, Inc., [2] have extended the reach of the antitrust laws. This has special significance to the mining industry in the Ninth Circuit because of the court's unusual interpretation of the law applicable to the aggregation of mining claims.
This comment will explore the antitrust exposure which may arise upon the claiming of “too much” ore. An analogy will be drawn between mining law and United States patent and antitrust laws. The analogy is close, and in the proper case the liability quite large, which is of particular significance in the Ninth Circuit as the jurisdictional prerequisites of interstate commerce and standing are easily satisfied.
II. THE LAW OF HARD ROCK MINING
The Ninth Circuit stands alone in a unique interpretation of American mining law. The court has consistently refused to ap- ply the administrative “too much” rule to mineral ore reserves. The Bureau of Land Management (BLM) of the Department of Interior, and its administrative tribunal, the Interior Board of Land Appeals (IBLA) have long enforced a “too much” test. The “too much” rule holds that a mining claimant who has claimed too much ore may undercut the very premise by which he is entitled to make a claim. That is, the mineral claim must meet the test of discovery, locatability and marketability.
Congress intends the business of mining to be as competitive as any other business and courts have decided antitrust cases concerning the mining industry. What is unique about mining is that most minerals lie in the public lands, and the public lands are subject to a comprehensive scheme of federal regulation of mineral claims dating to the Mining Acts of 1856 and 1872. [3] These claims were administered by the states until the 1976 federalization of filing requirements under the Federal Land Policy and Management Act. [4]
There are several levels of rights in mineral lands including the “pedis possessio” rights of a prospector, state mining claims, tunnels and mill sites protected by state and federal law, and the land conveyed from the federal government by a federal land patent. [5] Such rights, at whatever level, provide a holder with the right to exclude others from a particular piece of land through the remedies of quiet title, ejectment and injunctive and damage actions.
Whether valid mining claims may be aggregated to exclude potential or actual competitors from a relevant market in a mineral ore is an antitrust as well as mining issue. The question is not merely academic, because the larger companies in the American mining industry, particularly in their operations within the Ninth Circuit, [6] have aggregated huge numbers of mining claims. These companies assert that the ore reserves subject to their exclusive use are worth billions of dollars. If these assertions are true, and the aggregations forestall competition in the production of the ore, then antitrust violations may arise. [7]
The test for discovery of a “valuable mineral deposit” is whether the deposit justifies the locator to have reasonable expectations of developing a paying mine. [8] The Interior Department has promulgated regulations to prevent the appropriation of minerals solely for speculative purposes before sufficient work has been done to determine whether a vein or lode really exists. [9]
The policy underlying the “too much” rule is an estoppel. If there is “too much” of the mineral lying in the ground the very quantity of it reduces the value of anyone claim so that any single claim is no longer commercially viable. [10] In this instance, the “too much” rule is known as the rule against excess reserves. The fact that a mineral deposit on one claim satisfies the discovery standard, however, does not justify holding an entire group of claims on the mineral valid where the reserves on the claims are disproportionate to the total demand for such materials. [11]
The excess reserve rule limits the number of claims which a claimant may hold on the rationale that otherwise valid claims in too large numbers may fail to meet the discovery and market- ability test for location of a valuable mineral. [12] The Secretary of Interior has stated that: "[I]f the market could not absorb the materials from all of the [excess reserve] claims, then the super abundance of the available supply establishes the absence of a demand from the claim in question. [13]
The Ninth Circuit reviewed application of the excess reserve rule, which it dubbed the “too much test,” in 1979 and found it to be “an abuse of discretion which was contrary to the existing mining law.” [14] Therefore, the mining industry within the Ninth Circuit may freely aggregate excess reserves without fear of successful administrative challenge.
In the Tenth Circuit, [15] the industry aggregates excess reserves at some risk, in that the non-use of a group of claims may be held to be in abuse of the claims process. [16] In 1975 the Tenth Circuit [17] held that if a mining claimant has held claims for several years but has not developed them, a presumption arises that the claimant has failed to discover valuable mineral deposits where the market value of discovered minerals was not sufficient to justify the cost of extraction. [18]
These issues came to the Tenth Circuit on facts indicating that the defendant did not meet the customs of miners, let alone applicable law, in making its discoveries en masse. The mining industry, in fact, may not be as fastidious as it asserts concerning its own compliance with the law. [19]
Although the Ninth Circuit does not apply the “too much” rule to ore reserves, the antitrust laws, as interpreted by the Ninth Circuit, can reach the same result. Since the two recent antitrust holdings in Clipper Exxpress and Heliodyne [20], it is now possible for adversaries to reach would-be and actual holders of large ore reserves, and to create antitrust and treble damage exposure for any mining company which seeks to enforce its federal mining rights in “too much” ore.
III. THE ANTITRUST CONSIDERATIONS
The antitrust laws are the fundamental constitution of our economic system. [21] The Supreme Court has called the Sherman Act the “charter of economic liberty aimed at preserving free and unfettered competition.” [22]
The antitrust laws, however, not only favor competition, they promote the interest of competitors against what Justice Brandeis called “the curse of bigness.” [23] Justice Black picked up this theme in 1962 stating that the antitrust laws protect viable small businesses. [24]
The inconsistency between promoting the efficiencies of competition on one hand, and the equities of protecting competitors on the other, may be a major flaw in the character of American antitrust law. The court has swung between the application of these two philosophies and may again swing towards economic efficiency at the expense of smaller competitors. [25]
American’s policy favoring competition in the minerals industries, including mining, has often been discussed in case law. [26] Courts of Appeal [27] and the Supreme Court [28] have noted the pro-competitive congressional policy applicable to mineral lands. [29]
It has been the explicit policy of American mineral law since the Gold Rush days to avoid monopolization of the nation's mineral wealth. California passed the Possessory Act of 1850 to preclude the monopolization of mineral lands under the guise of agricultural uses. The intent of the legislature was to prevent monopolization of mining land and the anti-monopoly policy behind the Possessory Act was often emphasized by the California Supreme Court. [30] A later California case, [31] emphasized that in early California mining law, no matter was considered more important than the limitation upon the extent of mining claims.
Monopolization of, and restraint from trade in mineral ores has also given rise to Justice Department and private anti- trust cases. The famous Alcoa case of 1945, [32] dealt in part with the allegation that Alcoa had monopolized aluminum ore. The Supreme Court also dealt with ore deposits in Continental Ore [33] where it was charged that ore deposits were monopolized. [34] The same ore monopolization also gave rise to another noteworthy antitrust case, in which the Tenth Circuit held that the defendant's “took affirmative and effective steps to fix the prices for the raw ore. ..and to forestall and eliminate competition. ...” [36] The court went on to quote with approval Ninth Circuit holdings that “[t]he mere unlawful combination over a period of time to eliminate competition is proof of damage” and that any implied restraint of trade would patently result in some loss of business. [36] Any mining monopolist in the Western Circuit Courts of Appeal therefore, faces a presumption that the fact of antitrust injury arises from unlawful acts.
The cases demonstrate that mineral ores are a relevant product [37] subject to the protections of the antitrust laws, and that the antitrust laws reach restraints of trade and monopolization of mineral ores, [38] despite the pervasive federal scheme of exclusive mining claims on the public lands. [39]
IV. THE PATENT ANALOGY
Aggregation of mining claims is similar to situations which arise when invention patents and enforcement litigation violate the antitrust laws. [40] A patented invention and a patented mining claim reach the same result because ownership of a valuable property right is obtained by governmental action. An invention patent, like a mining claim, provides a certain exclusivity to the holder, by law, for the purposes of encouraging exploitation of the resource. However, if the holder of the exclusive governmental grant abuses it by using it to exclude competition from the whole market, or otherwise abuses its exclusivity, antitrust liability may arise. [41] *** [the note continues...]
1. United States v. Dolese, 605 F.2d 1146, 1154 (10th Cir. 1982).
2. Clipper Exxpress v. Rocky Mountain Motor Tariff Bureau, Inc., 690 F.2d 1290 (9th Cir. 1982), cert. denied, 1035 S.Ct. 1234 (1983); Energy Conservation, Inc., v. Heliodyne, Inc., 698 F.2d 386 (9th Cir. 1983).
3. See generally Gage, Cry Wolf -- Sherman and Clayton Are Coming! 27A Rocky Mtn. Min. L. Inst. I, (1982).
4. Federal Land Policy and Management Act, 43 U.S.C. § 1701 (1976). The FLPMA is also known as the Organic Act for the Bureau of Land Management. For a good summary of state and federal mining statutes and requirements for miners, see generally, Robert G. Pruitt. Jr., Digest of Mining Claim Laws (Rocky Mountain Mineral Law Foundation, 2d ed. 1981).
5. See generally, American Law of Mining, Titles I-IX (Rocky Mountain Mineral Law Foundation, 1982), (hereinafter ALM).
6. These companies have acted with immunity to the “too much” rule.
7. Upon a finding of antitrust liability the stockholders of any such aggregating mining company might well wish, in retrospect, that they had suffered the application of the Department of the Interior's “too much” rule rather than application of the Clayton Act's treble damage penalties.
8. 1 ALM § 2.4 at 163 (1982); the definition is based on Chrisman v. Miller, 196 U.S. 313 (1905) and Castle v. Womble, 19 L.D. 455 (1894). For a discussion of the none -to -clear relation of this “prudent man” test to marketability, see 1 ALM § 4.80 at 705 noting recent cases hold that mining claims may be invalidated upon a showing of no “present demand for the materials from the claim.” 9. 43 C.F.R. § 3814.3-1 (1974); 1 ALM § 4.13 at 611.
10. The Ninth Circuit interprets mining law for most of the mineral rich western states yet does not apply the “too much” test.
11. 1 ALM § 4.87A at 710.10.
12. Id. at 710.11.
13. United States v. Osborne, 28 IBLA 13, 15 (1976).
14. United States v. Baker, 613 F.2d 224, 229 (9th Cir. 1979), cert. denied 449 U.S. 932 (1980).
15. See Miller, Surface Use Rights under the General Mining Law: Good Faith and Common Sense, 28 Rocky Mtn. Min. L. Inst. 761, 773 (1983).
16. Id. 17. United States v. Zweifel, 508 F.2d 1150 (10th Cir. 1975) cert. denied 423 U.S. 829 (1976).
18. See Miller, supra, note 15, at 774. The Tenth Circuit's test is similar to the excess reserves rule.
19. For example, a story is told of a helicopter foray to the mountains of Colorado to stake out new claims the very next day after release of official news of potential mineralization in the area. However, there was so much snow on the ground that the would-be discoverers of valuable mineralization would have been lucky to discover pine trees under the snow, let alone copper ore. See Summer, Wilderness and Mining Law, in The Living Wilderness 8, 16, (Spring, 1973), as recounted in Strauss, Mining Claims on Public Lands: A Study of Interior Department Procedures, 1974 Utah L. Rev. 185 (1974).
20. Clipper Exxpress, 690 F.2d at 1290 and Energy Conservation, Inc., 698 F.2d at 386.
21. “Antitrust laws in general and the Sherman Act in particular, are the Magna Carta of free enterprise. They are as important to the preservation of economic freedom and our free enterprise system as the Bill of Rights is to the protection of our fundamental personal freedoms. The freedom guaranteed to every business, no matter how small, is the freedom to compete – to assert with vigor, imagination, devotion and ingenuity whatever economic muscle it can muster....” United States v. TOPCO Associates, Inc., 405 U.S. 596, 610 (1972).
22. “The Sherman Act was designed to be a comprehensive charter of economic liberty aimed at preserving free and unfettered competition as the rule of trade. It rests on the premise that the unrestrained interaction of competitive forces will yield the best allocation of our economic resources, the lowest prices, the highest quality, and the greatest material progress, while at the same time producing an environment conducive to the preservation of our democratic political and social institutions. But even were that premise open to question, the policy unequivocally laid down by the Act is competition. ...” Northern Pacific Ry. v. United States, 356 U.S. 1, 4-5 (1958) (construing the Sherman Act, 15 U.S.C. § 1 (1974)).
23. As trenchantly put by Justice Douglas in a 1948 dissent that later became the view of a majority of the Justices: “The problem of bigness. ..can be an industrial menace because it creates gross inequalities against existing or putative competitors. .. Industrial power should be decentralized. ..That is the philosophy and the command of the Sherman Act. ...” United States v. Columbia Steel Co., 334 U.S. 495, 535 (1948), (Douglas, J., dissenting).
24. “It is competition, not competitors which the Act protects. But we cannot fail to recognize Congress' desire to promote competition through the protection of viable, small, locally owned businesses. Congress appreciated that occasional higher costs and prices might result from the maintenance of fragmented industries and markets. It resolved these competing considerations in favor of decentralization. We must give effect to that decision.” See Brown Shoe Co. v. United States, 370 U.S. 294, 344 (1962) (construing the Clayton Act, as amended, 15 U.S.C. § 18 (1976)).
25. For an overview of applicable antitrust law and these policy issues, see generally P. Areeda & D. Turner, Antitrust Law, §§ 103 -113c at 7-33 (1978) (Hereinafter Anti- Trust Law); see also Rosenberg, William Baxter's Antitrust Legacy, California Lawyer, Apr. 1984, at 29.
26. See Cage, supra, note 3, who is particularly good on the cases involving the extractive side of the minerals industry, and Carr, The Int'l Energy Program and the U.S. Antitrust Law, 15 Nat. Resources l. 503 (1982).
27. For example, the Fifth Circuit has noted “[T]he public policy of the United States is directed at opposing the monopoly of federally-owned mineral deposits. ...” McKenna v. Wallis, 344 F.2d 432, 435 (5th Cir. 1965).
28. The Supreme Court similarly analyzed the statute providing for leasing of mineral lands noting that Congress “[P]revented mineral rights, on pain of forfeiture, from passing into the hands of any unlawful trust or becoming the subject of any contract or conspiracy in restraint of trade. ..Its whole policy seems to contemplate the opening of the public domain to competitive exploitation. ...” Chapman v. Sheridan Wyoming Coal Co., Inc., 338 U.S. 392, 397 (1950).
29. The present Supreme Court has even upheld use of outright public taking of private land “to reduce the perceived social and economic evils of a land oligopoly.” Hawaii Housing Authority v. Midkiff, 476 U.S. 229 (1984).
30. The [California] Possessory Acts of 1850 and 1852 (Cal. Gen. L 1850-1864, § 6790 (H. H. Bancroft & Co. 1868)). See also 1 ALM § 1.10 at 28, 29, Tartar v. Spring Creek Water & Mining Co., 5 Cal. 395, 398 (1855) and Smith v. Doe, 15 Cal. 100, 105 (1860).
31. Argonaut Mining v. Kennedy Mining & Milling Co., 131 Cal. 15, 63 Pac. 148, 150 (1900), aff'd. 189 U.S. 1 (1903).
32. United States v. Aluminum Co. of America, 148 F.2d 416, 432 (2nd Cir. 1945): “The plaintiff (the United States) attempted to prove, and asserts that it did prove, that ‘Alcoa’ bought up Bauxite deposits, both in Arkansas – the chief source of the mineral in the United States – and in Dutch, and British Guiana, in excess of its needs, and under circumstances which showed that the purchases were not for the purpose of securing an adequate future supply, but only in order to seize upon any available supply and so assure its monopoly.” Id.
33. Continental Ore Co., v. Union Carbide & Carbon Corp., 370 U.S. 690 (1962).
34. “The defendants were charged with purchasing and acquiring control over substantially all accessible vanadium-bearing ore deposits in the United States. ..[and other restraints].” Id. at 693.
35. Union Carbide and Carbon Corporation v. Nisley, 300 F.2d 561, 575 (10th Cir. 1962).
36. Id. (quoting Fox West Coast Theatre Corp. v. Paradise Theatre Building Corp., 264 F.2d 602, 608 (9th Cir. 1958), and Richfield Oil Corporation v. Karseal Corp., 271 F.2d 709, 713 (9th Cir. 1959)).
37. For a discussion of the parameters of the relevant market concept, see generally II Antitrust Law, §§ 507 at 330.
38. The Supreme Court has broadly defined mineral reserve geographic markets when faced with the issue in merger cases. See Tampa Electric Co. v. Nashville Coal Co., 365 U.S. 320 (1961) and United States v. General Dynamics Corp., 416 U.S. 486 (1974) in Cage, note 3 supra.
39. Company size alone may have antitrust implications. See Kennecott Copper Corp. v. F.T.C., 467 F.2d 67 (10th Cir. 1968), cert. denied 416 U.S. 909 (1969). See also Cage, supra, note 3, at 31, where it is stated that “[i]n an industry where deep pockets are part of the necessary uniform, the Kennecott decision must be viewed as just another example of the underlying resistance to the ‘curse of bigness.’”
40. See generally III Antitrust Law, § 704 at 114.
41. See generally I Antitrust Law, § 201 at 36.
42. Kobe, Inc. v. Dempsey Pump Co., 198 F.2d 416 (10th Cir.), cert. denied 344 U.S. 837 (1952); Rex Chainbelt Inc. v. Harco Products, Inc., 512 F.2d 993 (9th Cir.), cert. denied 423 U.S. 831 (1975). The author is indebted to the court in Handguards v. Ethicon, Inc., 601 F.2d 986 (9th Cir. 1979) for its concise analysis of the patent/antitrust cases. ***
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- A Comment on Jonestown
Published in the Jonestown Report,
San Diego State University, 2008
“San Francisco Laid Low by Jungle Fungus" by Bart Lee
http://jonestown.sdsu.edu/AboutJonestown/JonestownReport/Volume10/Lee.htm
It’s thirty years.
I never met Jim Jones. He will be remembered for only his evil, like the man who burned the Temple at Ephesus. Jim Jones was a mass murderer with a fungus in his brain.
Before Jones
fled to Guyana, the law office in which I worked as an attorney represented
him. It was political. The political whores of the Democratic Party in San
Francisco loved Jim Jones because he was the biggest political pimp: he turned
out the vote on command.
I participated in analysis and discussion of his legal issues, which I cannot disclose in terms of any attorney and client communications. I’m happy to say, I had none with Jim Jones or anyone associated with him or Peoples Temple. The San Francisco newspapers were running stories about how he abused members of the Temple. Jim Jones never did sue for libel, not through us or anyone else as far as I know. Perhaps some lawyer (not me) explained to him that truth was a defense. This was well before his exposure to jungle fungus. Maybe these newspapers ran him out of town. That would have been fine but for all the innocents he took with him.
We had a very nice young man in the copyroom of my office by the name of Vern Gosney. I think our representation of Jones, and the political ambitions of the owner of the law firm, played some part in Vern’s falling into the hands of Jones. Jones sold the dream of “Free at Last!” like a street drug to blacks and gays in San Francisco, and the disaffected and the idealists. Jones had sucked up enough respectability from his associations with all the little midget powers-that-be that were in San Francisco in the mid-1970s to do that.
Jim Jones murdered Vern’s son, a four-year-old boy named Mark, who died with 313 other children in Jonestown on November 18, 1978. By a miracle, Vern survived the bullets pumped into him at the Port Kaituma airstrip as he tried to leave with the congressman. I will leave it to Vern to say how and why all that happened, which he shared with me on his return. He was a brave and courageous young man in Guyana, and his story – one of tragedy, challenge and redemption – is worth reading.
When we – in San Francisco, in November 1978 – heard the first reports on the radio about Jonestown massacre, I knew it had to be true. It was all the more sickening because of our involvement with Jones. (I wondered then and I wonder now if better lawyers could have made it possible for him, and his victims, to stay in San Francisco, and alive). A good friend, a sophisticated lawyer, simply did not believe the bad news. That was true for many, at least for a while. She declared that 900 people simply did not kill themselves that way. She was wrong about the deaths, but right about people not killing themselves.
Jim Jones and his evil crew (without fungus in their brains) simply murdered 900 people one way or another. This was no Masada, it was mass murder.
Nine days later, former City Supervisor Dan White assassinated the Mayor, George Moscone, whom Jones had served so well, and Supervisor Harvey Milk, another gay martyr of courage and talent. My friend Carol Ruth Silver was next on White’s list. This City reeled. This Demented Disneyland that we had created and loved turned out to be actually demented and homicidal at that.
A year later the incompetence of the District Attorney’s office in getting only a manslaughter conviction against White (they picked a death-qualified jury but from White’s western constituency neighborhoods) led to the “White Night” riots. And then the “Gay Plague” hit. That’s what we called it then, first thrush, then cancer blotches, then wasting, then death.
“Game over” and no “do-overs” and no “new-life” to live. When Jim Jones kills you, you stay dead
I don’t know that the City he wounded ever really recovered.
May the souls he robbed of life rest in peace.
(Bart
Lee is an attorney in San Francisco.***)