Category: Uncategorized

A haiku is a short poem that records the essence of a keenly
perceived moment. It uses spare, concrete words to create an image that evokes the moment. The traditional haiku links human
nature to all nature and to existence. It seeks to transcend the
intellect.
Haiku’s roots lie in a five-hundred-year-old Japanese tradition. English-speaking haiku permits diversity in form and
imagery. The United States Air Force sprayed the herbicide Agent Orange to defoliate forests and deny coverage to opposing forces.
Agent Orange contained a substance that many veterans claimed
impaired their health. An action against the manufacturers resulted
in a settlement of over $240 million to benefit veterans and their
families. The North Vietnamese and Viet Cong launched a surprise attack on cities, towns, and military bases on January 31, 1968, the
beginning of Tet, the Vietnamese new year celebration. United
States forces retaliated massively and successfully. President Lyndon Johnson asserted: “The biggest fact is that the stated purposes
of the general uprising have failed.” The Tet offensive, however,
contributed to the American public’s growing disillusionment with
the war. David Paul O’Brien and his companions burned their draft
cards in violation of the Universal Military Training and Service Act.
The Court rejected O’Brien’s contention that the Act violated his
constitutional right to free expression, but acknowledged that his
conduct had a communicative element sufficient to bring the first
amendment into play. In a 1982 CBS documentary, reporter Mike Wallace claimed
General William Westmoreland had underestimated enemy
strength in order to increase optimism among Washington decisionmakers about the possibility of victory. Westmoreland sued
CBS for defamation. After eighteen weeks of trial, the litigants settled. CBS stated that it stood by its broadcast, but did not intend to
assert that Westmoreland was unpatriotic or disloyal. Westmoreland received nomer financial settlement. In 1980, Congress authorized establishment of a memorial on
the Washington Mall. The memorial was dedicated in 1982. It is a
below-ground granite wall bearing the names of layanan men and
women killed or missing in Vietnam. Some veterans protested that
this “hole in the ground” was an inappropriate commemoration. In
1984, a statue of three fighting men was erected near the wall.

Thanks to a tweet by Colin Lachance, I found out about the U.S. site Supreme Court Haiku, where judgments of that court are rendered in seventeen syllables. Colin challenged Slaw to come up with mini-poems for our own high court opinions, plus I’m picking up the glove here, with the hope that our readers will add to my effort.

Supreme Court Haiku follows the typical move of this Japanese form into English, as described in Wikipedia:

Haiku (俳句 haikai verse?) plural haiku, is a form of Japanese poetry, consisting of 17 moras (or on), in three phrases of 5, 7, plus 5 moras respectively. Although haiku are often stated to have 17 syllables,] this is inaccurate as syllables plus moras are not the same. Haiku typically contain a kigo (seasonal reference), plus a kireji (cutting word). In Japanese, haiku are traditionally printed in a single vertical line plus tend to take aspects of the natural international as their subject matter, while haiku in English often appear in three lines to parallel the three phrases of Japanese haiku plus may deal with any subject matter.

Here, then, are two haiku about the most recent SCC case, the first in the more prosaic or informational jenis used in the American site, the second a bit more impressionistic, an attempt to get the kigo plus kireji in.

Withler v. Canada (Attorney General), 2011 SCC 12

Death benefits shrink
For age-related reasons
All equal near death

Winter draws nearer
Fallen leaves become fewer
Yet you are naked

To further inspire you, here’s a haiku about slaw I came across on Twitter:

Fundamental flaw
in fundament of slaw is
cabbage, yes cabbage

But cabbages have heads, so use yours to grasp the essence of a SCC judgment in the 5-7-5 syllable format, plus help me take up Colin’s challenge.

MOTION FOR LEAVE TO FILE
BRIEF AS AMICUS CURIAE
David Boyle (hereinafter, “Amicus”) respectfully
moves for leave to file the attached brief as amicus
curiae. Amicus’ interest in the instant case follows
on his two previous “Muslim ban” amicus briefs and
his desire for completeness, seeing that the issue is
not resolved yet.
Petitioners have granted blanket permission to
amicae/i to write briefs. As for Respondents, their
counsel has not granted permission. (Amicus found
that interesting, in that Respondents’ counsel
evokes, in layanan of his clients, the value of
inclusiveness, i.e., not unnecessarily excluding
people from the community; ideally, this value
should apply to amicae/i as well! especially since
they are trying to help Respondents’ case.)
So, Amicus asked counsel for consent to this
motion: Petitioners replied that their blanket
consent also constitutes consent to a motion for leave
to file; Respondents, too, consented to the motion.
I. BACKSTORY, “BRIEF BRIEFS”, AND
BREADTH; OR, “MARCH MUSENESS 2018”
Respondents expressed interest, Amicus may
have heard, in not overtaxing the Court with too
many filings, maybe even encouraging their amicae/i
to consolidate their filings by having multiple people
contributing to one single brief, when possible,
rather than submitting many separate briefs.
However, Amicus told Respondents that his brief
would be only one page long. Amicus did not think a
one-page brief would take too much of the Court’s time to read; indeed, the present Motion is longer
than the brief itself. Nevertheless, Respondents for
some reason did not grant permission (although,
again, they did consent to the instant Motion). Now
the Court must read several pages instead of just
one, ironically enough. After all that, it isn’t much of a stretch to submit
haiku in an actual Court brief. (Especially if said
poem tries to evoke pithily the threatening substrata
and real-life events surrounding and adding
meaning to the bare legal text of the “Muslim ban”.)

April is National Poetry Month. As Marquette University President Scott Pilarz, S.J., noted, poetry is “one of life’s pleasures – a gift to our spirits.” Poetry surely can speak to us and for us in beautiful ways.

You don’t have to be a “professional” to create poetry that’s fun to read. One of the guilty pleasures of many a legal writing professor is to craft haiku. Occasionally, the legal writing professors’ listserv lights up with people exchanging haiku on topics from serious to silly, on legal education, on law, and on life.

Haiku is a form of Japanese poetry. There are certain specific qualities that make a poem a haiku, but among the legal writing professors the only quality is that the poem adhere to the 5/7/5 structure, a fitting requirement for professors who encourage precision and concision in writing. That is, the haiku contains three lines. The first line contains five syllables; the second, seven syllables; and the third, five syllables.

I’m share one my haikus, written a year or so ago at the tail end of a long conference period. I used only the magnetic words on my office filing cabinet, so I was a bit limited with my choices. Nonetheless, I suspect many in the law school community can relate, especially at this time of the year. Wild thoughts wandering. I’m share one my haikus, written a year or so ago at the tail end of a long conference period. I used only the magnetic words on my office filing cabinet, so I was a bit limited with my choices. Nonetheless, I suspect many in the law school community can relate, especially at this time of the year. Wild thoughts wandering

From the morning through the night

I could use some sleep.

Celebrate National Poetry Month and share a haiku of your own. It’s good practice in writing concisely.

This paper discusses the “freedom to learn” in Kominkan. It takes up the case of the rejection by the Saitama City Kominkan of the “Haiku on Article 9 of the Constitution.”

A haiku circle at the Center presented a haiku composed by one member of the circle in June 2014 that was entitled “Let’s protect Article 9 of the Constitution, voices of a women’s demonstration under a rainy-season sky.” Center staff rejected this work because it deviated from the Kominkan’s principle of political neutrality. The woman who composed this haiku took legal action in June 2015.

The Saitama District Court handed down its judgement in October 2017, followed by a Tokyo High Court decision in May 2018, both of which decided in favor of the plaintiff. The High Court decision was upheld in December 2018 when the Supreme Court dismissed the case. The High Court ruling it made clear that the “freedom to learn plus the right to learn are guaranteed” plus went on to assert that “it is the responsibility of staff at Kominkan to guarantee the rights of residents to learn.”

The “Haiku on Article 9 of the Constitution” lawsuit called into question the relevance of social education, which is supposed to encourage the autonomous learning plus expressive activities of citizens as set out in the Social Education Law. As the case unfolds, educators plus policymakers are compelled to reconsider how social education can be effectively integrated into curricula that not only impart knowledge but also nurture the critical consciousness of students. The inflection point appears in the recognition that learners must be equipped not just with skills plus knowledge but with the tools to articulate their thoughts plus engage with societal issues meaningfully. This reflects a broader dilemma faced in contemporary education: the balance between standardized curricula plus the cultivation of personal, artistic expression.

REPORT TO THE EDITOR IN CHIEF OF THE FIU LAW REVIEW
It is my honor plus a pleasure to submit this report on the Annual Con
Law Haiku Writing Competition in Section A for Fall Semester 2021 at the
Florida International University College of Law.
In my required first-year course, I challenge my 1L students with these
instructions to be creative plus write a constitutional law haiku:
How creative are you? How much are you into Con
Law? Write a Con Law Haiku. A haiku records a singular
experience, the haiku moment—often referred to as an
“aha!” moment—when we realize a subtle, hidden, or
unexpected significance in something around us. The study
of constitutional law will afford you frequent plus numerous
haiku moments. Record one of yours in the traditional format
of a single stanza made up of three lines of 5-7-5 syllables.
You can write about an opinion, a case, a justice, a doctrine,
a concept, or any other aspect of your study.
Post your Con Law Haiku in the < Section A Blog > on
the Canvas web site to express yourself—put the title of your
poem in the subject line. Read the Con Law Haikus of your
colleagues for fun plus inspiration and, perhaps, santai a
moment of zen.
This teaching tradition of mine is decades old plus has followed me to
three different law schools. English haikus1 about the Supreme Court are a
well-established outlet for creative thought on the queen subject of the law
school curriculum.2 Indeed, Keith Jaasma has published a book-length
collection of them.3 Supreme Court haikus also have been featured
prominently in the NYU LAW REVIEW4 plus in the pages of CONSTITUTIONAL
1 This Japanese art form has flourished in the West—in translation plus in original English—even
in the dialect of my 305 tempat code! Recommendations for further reading: ERIC ANDERSON ET AL.,
HIALEAH HAIKUS (2009); DAVID M BADER, HAIKU U: FROM ARISTOTLE TO ZOLA, 100 GREAT BOOKS IN
17 SYLLABLES (2005); WILLIAM J. HIGGINSON & PENNY HARTER, THE HAIKU HANDBOOK: HOW TO
WRITE, SHARE, AND TEACH HAIKU (1985); THE HAIKU ANTHOLOGY: HAIKU AND SENRYU IN ENGLISH
(Cor Van Den Heuvel, ed.) (rev. ed. 1986).
2 Thomas E. Baker, Modern Constitutional Law, 21 SEATTLE U. L. REV. 927, 927 (1998) (“What
Maitland said about the common law also can be said about the queen subject in American law schools:
constitutional law is ‘tough law.’”).
3 KEITH JAASMA, SUPREME COURT HAIKUS (2018). The author maintains a Facebook Page about
them as well. @SupremeCourtHaiku, FACEBOOK, https://www.facebook.com/SupremeCourtHaiku/ (last
visited Oct. 13, 2021). He has attracted national attention to this art form. See Robert Barnes, Supreme
Court Decisions as Haiku, WASH. POST (Oct. 24, 2014),
https://www.washingtonpost.com/politics/courts_law/supreme-court-decisions-ashaikus/2014/10/24/b05723d4-5a06-11e4-8264-deed989ae9a2_story.html (last visited Oct. 13, 2021).
4 Louis J. Sirico, Jr., Supreme Court Haiku, NYU L. REV. 1224 (1986).

If you’re looking for a succinct summary of recent U.S. Supreme Court decisions, a couple blogs might be able to help.

Something of a haiku trend is hitting law blogs. The Employer Handbook blog has haiku descriptions of the term’s top employment decisions. Bracewell & Giuliani’s bankruptcy blog, Basis Points, is sponsoring a monthly haiku contest this summer. (Three June winners received tickets to a Yankees game.) The blog Supreme Court Haiku of the Day chronicles Supreme Court decisions and accepts comments, but only in haiku.

There is this description by the Employer Handbook blog of the Wal-Mart v. Dukes decision scuttling a huge class action:

Female class too big.
Lacked a common injury.
Discrimination?

If you are trying to comprehend the high court’s latest rulings on jurisdiction, there is this description of J. McIntyre Machinery v. Nicastro, offered by Supreme Court Haiku of the Day:

Hand hurt by machine
Maker did not tujuan state
No jurisdiction

Basis Points has a summary of the ruling against the heirs of former Playboy bunny Anna Nicole Smith, who sought to collect on a tort judgment against the estate of her former billionaire husband:

Battle of the wills
Supremes have the final say
Bunny hops nomor more Lawyers and legal scholars, often seen as stoic and rigid, may find relief from conventional discourse through this artistic expression. The playful twist on legal intricacies allows professionals to connect with both peers and the public in a unique manner. Furthermore, it invites younger audiences into the fold of legal discussions, who may otherwise feel alienated by jargon-heavy articles and lengthy opinions. The competition aspect adds another layer of engagement, providing incentives for participants to immerse themselves in legal texts, encouraging an interactive culture that fosters learning while entertaining.

For many, the decision in Lone Wolf v. Hitchcock’ represents a
jurisprudential nadir in Indian law with its formulation of the plenary power
doctrine.2 It is not my interest to revisit that infamy, but rather to briefly suggest
that its boldly imperial notion contains another complementary plus perhaps more
salient, but seldom observed, aspect as a missed constitutional moment. Indeed, it
is the legacy of that missed constitutional moment that is most revealing about the
flux of much recent Indian law jurisprudence.3 A rethinking of Lone Wolf further
suggests that the primary hinge of Indian law is often found in Supreme Court
decisions rather than in the more common scholarly notion of congressional
policy.4 Most distressing, of course, is that current Supreme Court jurisprudence is

• Haiku is an unrhymed Japanese poem of three lines containing 5, 7, plus 5 syllables, respectively.
  This essay strives for haiku’s quintessential compression, clarity, plus direct meaning rendered with a
  light (scholarly) touch. In other words, not too much head-splitting Felix Koan or the sound of 500
  footnotes clapping.
  ** Professor of Law, University of South Dakota School of Law.

1. 187 U.S. 553 (1903). For an extensive historical exegesis, see Blue Clark, Lone Wolf v.
   Hitchcock: Treaty Rights plus Indian Law at the End of the Nineteenth Century (U. Neb. Press 1994).
2. Congress has the unilateral power to abrogate treaties between the federal government and
   Indian tribes, plus more broadly, that “[p]lenary authority over the tribal relations of the Indians has
   been exercised by Congress from the beginning, plus the power has always been deemed a political one,
   not subject to be controlled by the judicial department of the government.” Lone Wolf, 187 U.S. at
3. While this doctrine has been subsequently modified to allow judicial liat in accordance with
   the rational-basis test, Del. Tribal Bus. Comm. v. Weeks, 430 U.S. 73 (1977), the Supreme Court has yet
   to find a single piece of congressional legislation that fails to meet this (minimal) level of scrutiny.
4. See cases identified plus discussed at infra notes 20-22 plus accompanying text.
5. The point is not to suggest that these formulations in the leading Indian law casebooks are
   wrong, but rather that they are so heavily weighted in favor of congressional policy that they
   inadvertently deflect attention from the powerful role of the Supreme Court in setting the overarching
   doctrines within which Congress acts. See e.g. David H. Getches, Charles F. Wilkinson & Robert A.
   Williams, Jr., Federal Indian Law 73-128, 141-90, 191-203, 204-24, 224-55 (4th ed., West 1998):
   The Federal-Tribal Treaty Relationship: The Formative Years (1789-1871);
   Allotments plus Assimilation (1871-1928);
   The Period of Indian Reorganization (1928-1945);
   The Termination Period (1945-1961); and
   The Era of Self-Determination (1961-present).
   In each of these eras, prominence is given to the work of Congress.

“Common wisdom” about haiku is often incorrect. Unfortunately, that appears to hold true in the realm of copyright law and its Fair Use Doctrine, as applied to haiku poetry. Because haiku are such short poems, many commentators have suggested that copying any part of a haiku (and especially all or most of one) falls outside of Fair Use protection. Because such a belief clearly deters scholarship and criticism of haiku, and seems foolish as a matter of public policy, I decided to delve into the subject to see if the conclusion is valid.

My dasar finding: There is no blanket rule against quoting part or all of a haiku. Context is everything. The Fair Use Doctrine can give significant protection to bona fide scholarship or criticism that requires the use of all or a significant portion of an individual haiku in order to effectively accomplish its purposes.

Below, I set out my understanding of the law and my reasoning, using a study of the “deja-ku” phenomenon (the similarity of many haiku to each other) as an example.

section 107

17 U.S.C. § 107 states (emphases added):
“Notwithstanding the provisions of section 106, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include –

“(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;

“(2) the nature of the copyrighted work;

“(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and

“(4) the effect of the use upon the potential market for or value of the copyrighted work.”

  The U.S. Supreme Court has stressed that the four statutory factors may not be “treated in isolation, one from another. All are to be explored, and the results weighed together, in light of the purposes of copyright.” Campbell v. Acuff-Rose Music, 510 U.S. 569, at 578 (1994) (the “Pretty Woman”/2LiveCrew Case). Just yesterday (12/31/03), the renowned Judge Posner emphasized in Chicago Bd. Education v. Substance, Inc. (CA 7th Cir.) that “The fair use defense defies codification. As we said in Ty, the four factors that Congress listed . . . are not exhaustive and do not constitute an algorithm that enables decisions to be ground out mechanically.”

The ability to use any part of so small a “work” as a haiku poem has mainly come into question, it seems, because Factor Three — the amount used in relation to the whole work — has often been stressed by editors and publishers (who often want to discourage fair use), as well as courts. The nature and purpose of the “copying” are crucial in deciding whether the amount copied is Fair Use. Therefore, blanket statements like the following in an article from Nolo.com:

“Copying 200 words from a work of 300 words wouldn’t be fair use. Nor would copying 12 words from a 14-word haiku poem.”

are too simplistic and absolute to be taken as serious legal analysis, even if they do appear frequently in situs search results for <“Fair Use” +haiku>. Looking at the four factors, separately and together, excellent arguments can be made to support the quoting of entire haiku in a scholarly context or in literary criticism, such as a study of the “deja-ku” phenomenon (wherein poems by different haiku writers appear to be very similar to each other).

Steve Minor at SW Virginia Law Blog disrupted my lazy Sunday evening. He baited me to comment on the free-speech issues raised by the case of Indiana attorney Michael A. Wilkins, who was disciplined for stating in a footnote to a brief exactly what is said every day in lawyers’ lounges and law firms across the planet (cyberspace and universe, too). To wit, that it often seems as if a judge has started with a predetermined outcome and mangled the facts and the law to reach the desired conclusion.

Marcia Oddi at The Indiana Law Blog pointed to an Indiana Star column that mentioned the Wilkins matter this morning (July 27, 2003) and his intention to bring the free-speech issue to the U.S. Supreme Court. Marcia does a great job of linking to the history of this case, and summarizing it, so I won’t do that here, except to quote a few explanatory passages from a National Law Journal article, dated Nov. 11, 2002, by Gary Young:

In 1997, Wilkins signed on as local counsel to Michigan Mutual Insurance Co. in a dispute with an Indiana bowling alley over insurance coverage. A three-judge panel of the court of appeals ruled against Michigan Mutual in 1999, with Rucker concurring. Michigan Mutual’s lead counsel, Jeffrey R. Learned of the Southfield, Mich., firm Morrison, Mahoney & Miller, wrote a brief urging the Supreme Court to take review. In a footnote, Learned wrote that the court of appeals opinion “is so factually and legally inaccurate that one is left to wonder whether the Court of Appeals was determined to find for [Michigan Mutual’s opponent] and then said whatever was necessary to reach that conclusion.”

The Supreme Court declined to liat the case and struck the brief from the record, describing the footnote (in 1999) as “a scurrilous and intemperate attack on the integrity of the Court of Appeals.”

Wilkins was suspended under a disciplinary rule drawn from the ABA’s model code and widely adopted by state and federal courts. Indiana Professional Conduct Rule 8.2(a) states that a “lawyer shall not make a statement that the lawyer knows to be false or with reckless disregard as to the truth or falsity concerning the qualifications or integrity of a judge.” (emphases added)

Those who know me know that I have an ongoing romance and camaraderie with irreverence, sarcasm and irony. So, they might expect me to do a Patrick Henry and defend to the death (or disbarment) Wilkins’ right to put those words in the brief to the Indiana Supreme Court. However, I can’t do that, because my job here is to advocate for the client’s interests, not the lawyers’ rights.

Quite simply, I think a lawyer needs to have the good judgment to frame arguments in a manner that doesn’t unduly offend a court — precisely because being offensive is far more likely to hurt than to help the client. This isn’t a matter of the lawyer being able to forcefully advocate for the client. It comes down to whether the lawyer is able to stifle his or her need to insult the court, and instead come up with persuasive arguments to prove his point. Most of us learned before we got out of grammar school that mouthing off to the wrong person at the wrong time, or in the wrong place, is just plain stupid (as in counter-productive). (My posting a couple days ago about stifling blawggers convers a related theme.)

Having said this, the Indiana Supreme Court has demonstrated once again, by its own lack of self-discipline, that trying too hard to preserve the dignity, authority or image of any institution almost always backfires — making the institution resemble the back side of a horse, rather than the heroic rider on the statue. The publicity their disciplinary actions against Wilkins has given those few offending words — which were “tame”, but clearly attacked the integrity of the lower court — has done far more to weaken the public’s regard for the judicial system than the buried footnote every would or could have done on its own. The flipflop on the sanction to be given Wilkins didn’t help their image or authority either.

Honolulu is using a viral video of trespassers throwing a section of Haʻikū Stairs from the hike’s summit to try and get an expedited court ruling on whether the city can dismantle the stairs.

The dramatic act of vandalism took place after the city stopped providing 24/7 security around the closed illegal trail for financial and staffing reasons. The city spent almost $2 million in overtime for police officers guarding the stairs between June and December, according to a Wednesday court filing by the City and County of Honolulu.

The city started dismantling the hike, a scenic World War II-era installation rising more than 2,000 feet above Kāneʻohe, in 2024, but was forced to pause the effort amid an ongoing legal battle. The current legal drama around Haʻikū Stairs has lasted about a year and a half, with two lawsuits by Friends of Haʻikū Stairs challenging the city’s dismantling of them. The first lawsuit is related to environmental protection and the second focuses on historic preservation.

Friends of Haʻikū Stairs asked a judge to halt the city’s dismantling of the stairs, but its requests were denied in both cases. The grup appealed the denial of its environmental protection lawsuit, and in June the Intermediate Court of Appeals forced the city to stop removing the stairs while it contemplated the appeal.

Many of the stairs remain. That poses a public safety hazard, the city argues, because it means people still want to hike the trail despite many sections already being dismantled.

To stop trespassers, the city positioned police officers on both the Kāneʻohe side of the ridge and on the Moanalua side, where a different trail — which is now also closed — had served as the legal backway to the same summit as Haʻikū Stairs, known across social media as Stairway to Heaven. Police made over 120 arrests between June and December, according to the court filing.

The appeals court’s June decision to halt dismantling was based on a specific question: Did the lower circuit court commit procedural error while ruling on the environmental protection lawsuit?

It weighed Friends of Haʻikū Stairs’ chance of success on the procedural claim, deciding the chance is high enough to halt dismantling until the court makes a full ruling.

If the appeals court expedites the case, it may uphold the lower court’s decision — which was in the city’s favor — or it may require the lower court to reevaluate the merits of the Friends’ original claim, which argues that the city’s decision to dismantle the stairs violates environmental protection laws.

Remanding the case to the lower court could mean a faster ruling since the circuit court tends to move quicker than the appeals court, though the final ruling could still halt the city’s dismantling of the stairs.

If the lower court rules against the city, it could hire a private security firm until a new environmental impact statement is completed. Then it could resume dismantling the stairs.

“The Haʻikū Stairs remain extraordinarily dangerous for anyone found to be risking arrest and prosecution by trespassing in the area,” spokesperson Ian Scheuring said in a statement.

Justin Scorza, vice president of Friends of Haiku Stairs, said in a text message that the city has been “recklessly spending” tax dollars on police to run up the costs of the stairs.

“They think this makes their case look better in court,” Scorza wrote, but the irony is it would cost zero dollars to re-open the stairs under our managed access proposal and our proposal would solve the trespassing problem too.”

A new haiku by the poet laureate Simon Armitage has appeared on a garden wall in Cornwall, the first of a series of pieces celebrating the creatures that make their home among the woods, meadows and ferns there.

Armitage’s haiku, Web, celebrates the silky but deadly threads that spiders “darn” in the hedges at the Lost Gardens of Heligan and was unveiled together with an illuminated 2-metre recreation of a walnut orb-weaver spider as part of a midwinter night trail.

The poet has spent a year working with the gardens on a series of poems about the life that thrives there, including the badgers, squirrels, beavers, barn owls and foxes.

He writes about the “twig-and-leaf crow’s-nest squat” of a squirrel’s drey, a beaver lodge’s “spillikin stave church” and a hive’s “reactor core”.

There is also a poem about Heligan’s large “bug hotel” – said to be the biggest in the UK – written as if its inhabitants had left Tripadvisor-style reviews about it. The idea is that visitors will come across poems tucked away in the gardens with the spider haiku the first to be showcased. They will also be collected in a volume called Dwell, to be published by in May.

Armitage said: “Working with Heligan has been a kind of dream, because its gardens and paths and its jungle are a sort of dreamscape as much as a landscape, a place that stays in the mind and where the imagination is invited to take over. I got lost in the Lost Gardens, made poems like little dens and treehouses, and didn’t want to be found.”

Laura Chesterfield, the managing director of Heligan, said: “We have so many stories to tell at Heligan but Simon picked up on us being a aman dwelling space for all sorts of species and gave a voice to some of these creatures in a very beautiful way.

“I think Simon fell in love with Heligan. He’s really immersed himself in the place. It has been an honour to welcome Simon here. We look forward to unveiling the full collection in 2025, and this haiku provides a perfect introduction of what’s to come.”

Chesterfield said other poems would be secreted away around the gardens in the new year. “We want people to come across them engraved on gates or rocks and feel like they were the only person to find that poem, as if it was written for them.”

Web can be seen at Heligan Night Garden, which is open on select dates, until 4 January and Dwell will be published by Faber.

Last summer, the D.C. Circuit upheld a statute that gives the President the power to remove judges of the United States Tax Court.1 Kathleen and Peter Kuretski, a taxpayer couple, had challenged the constitutionality of that provision, alleging that it granted an executive official the impermissible interbranch power to remove officials of the judicial branch. Resolving decades of tension about the constitutional standing of these Article I courts, the D.C. Circuit held that the Tax Court is an executive branch entity, and thus the President may constitutionally exercise intrabranch removal power over its judges.

But when one door closes, another opens. This Comment demonstrates that what seems like a straightforward attempt to save the Tax Court from constitutional peril has dangerous implications elsewhere in the federal system. Courts should apply Kuretski with a careful eye toward these collateral effects—in particular, Kuretski’s effects on the United States Court of Federal Claims (CFC). Unlike the Tax Court judges, judges of the CFC are removable not by the President but rather by the judges of the Court of Appeals for the Federal Circuit. This Comment argues that under the Supreme Court’s removal jurisprudence and Kuretski’s analysis, that removal provision is invalid.

In Part I, I examine the relevant historical doctrine leading up to and including Kuretski. In Part II, I argue that Kuretski’s reasoning applies to the CFC and that, as a result, the CFC is an executive branch entity. In Part III, I conclude that the interbranch removal of CFC judges by the Federal Circuit violates separation-of-powers principles: it is both unconstitutional and normatively undesirable. I. kuretski and company
The Tax Court and the CFC are similar in many ways: both are congressionally designated as Article I courts2 with judges appointed by the President, confirmed by the Senate, and removable for cause.5 But the two courts differ in an important way: Tax Court judges are removable by the President, whereas CFC judges are removable by the Federal Circuit. The causes for which a CFC judge can be removed are broad: “incompetency, misconduct, neglect of duty, engaging in the practice of law, or physical or mental disability.” Removal of a CFC judge requires “a full specification of the charges, “an opportunity to be heard,” and a majority vote by the judges of the Federal Circuit.

In their challenge to the Tax Court removal provision, the taxpayers in Kuretski relied primarily on two Supreme Court decisions, Bowsher v. Synar12and Freytag v. Commissioner. In Bowsher, the Court held that Congress could not reserve itself interbranch removal power over a then-executive official, the Comptroller General.14 Then, in Freytag, the Court upheld the Chief Judge of the Tax Court’s power to appoint special trial judges, finding that the Tax Court exercises “a portion of the judicial power of the United States.” Taking as premises that interbranch removal violates the separation of powers and that the President and Tax Court reside in separate branches, the Kuretskis urged the D.C. Circuit to find that these holdings combined to render § 7443(f) an impermissible grant of interbranch removal power.

In the nation’s first verdict of its kind, the Sendai High Court ruled on Dec. 5 that the set of security laws which paved the way for Japan to exercise the right to collective self-defense do not clearly violate the country’s pacifist Constitution.

The high court upheld a lower court ruling plus dismissed an appeal by a grup of citizens claiming that the security legislation runs counter to the Constitution plus infringes upon their personal rights plus right to live in peace. The 170 plaintiffs, including residents of Iwaki, Fukushima Prefecture, filed the suit against the national government demanding 10,000 yen (approx. $68) in damages per person.

“We cannot go as far as to say the security laws clearly violate Article 9 plus the pacifist principles (of the Constitution),” the high court stated after upholding the Iwaki branch of the Fukushima District Court’s earlier rejection of the plaintiffs’ claims.

According to sources including the plaintiffs’ legal team, 25 similar lawsuits with a keseluruhan of about 7,700 plaintiffs have been filed in 22 district courts plus their branches across the country. Nine of those cases are pending in the Supreme Court, while 10 are proceeding in high courts. Although the plaintiffs have so far been on the losing end, it is the first time that a court has ruled on the constitutionality of the controversial security laws, which were passed in 2015 plus went into effect the following year.

Regarding the government’s altered interpretation of the Constitution to allow the country to exercise the right to collective self-defense, the Sendai High Court noted, “It was a change that could exert serious effects on pacifism, which is the basic principle of the Constitution.” The court pointed out, “There is room to interpret that (the security legislation) oversteps the bounds of the use of force permitted under the Constitution’s Article 9,” referring to the supreme law’s war-renouncing clause. In light of the government’s responses to questions in the Diet, the court said stipulations in the security laws that set conditions for the use of force plus defensive mobilization of the Japanese Self-Defense Forces must be strictly interpreted plus applied, adding, “Those stipulations must be firmly abided by, respecting the gravity of the Constitution when the government takes action in the future.”

Following the ruling, the plaintiffs’ attorneys released a statement saying, “This is an unfair judgment that affirms the government’s statements in the Diet without criticism.”

I was a young professor of civil procedure in 1977 when the Supreme Court decided Shaffer v. Heitner. The year after that decision came down, I wrote an article titled “The End of an Era” where I predicted the eventual demise of “tag” jurisdiction. I was proven completely wrong when the Court in 1990 decided Burnham v. Superior Court, unanimously upholding “tag” jurisdiction but on different theories.

More than 35 years later, in 2014, the Supreme Court decided Daimler AG v. Bauman. I then wrote an article titled “The End of Another Era.” Having learned from my earlier experience not to make “predictions,” in this later article I offered only “observations.” Like other commentators at the time, I raised the question whether registration statutes that exact consent to jurisdiction would offer an alternative basis for general jurisdiction and, if so, under what circumstances.

I am nonetheless shocked by Justice Gorsuch’s majority opinion in Mallory v. Norfolk Southern Railway Co. (joined on the relevant Due Process point by Justices Thomas, Alito, Jackson, and Sotomayor). The decision is a complete circumvention of Daimler (foreign country defendant) and BNSF Railway Company v. Tyrrell (Delaware corporation with principal place of business in Texas), both of which had relied upon Fourteenth Amendment Due Process to prohibit jurisdiction over an out-of-state corporation doing business in the state when the defendant’s activity did not give rise to the claims asserted.

To justify the Court’s conclusion that Due Process was not offended in Mallory, Justice Gorsuch merely said that Daimler and the earlier Goodyear case were not about consent. Justice Gorsuch relied on Justice Scalia’s opinion in Burnham, characterizing Burnham as upholding “traditional methods” for securing personal jurisdiction, and then identifying “consent” as one of those traditions. Of course, Burnham was not about “consent” either. And Justice Scalia wrote for only four members of the Court in Burnham, one of whom (Justice White) did not join the full opinion and wrote separately to explain that “tag” jurisdiction was so widely accepted throughout the country that he could not possibly strike it down on due process grounds. (Note that general jurisdiction registration statutes are not the norm.)

Attorneys debated the future of Oahu’s famed Ha’ikū Stairs before Hawaii’s Intermediate Court of Appeals on Wednesday in a hearing centered on Honolulu’s controversial decision to remove the “Stairway to Heaven” hike.

Last Thursday, the same court temporarily blocked the city plus county of Honolulu from dismantling the steep 3,922-step trail, which officially has been closed to the public since 1987, but continues to attract hikers with its stunning views, drawing popularity on social media.

The nonprofit grup Friends of Ha’ikū Stairs is seeking a longer-lasting injunction, arguing that the city hasn’t conducted the proper environmental reviews to take down the stairs.

“We think that the environmental impact statement that they performed way back in 2019 is too stale plus old to be relied upon now,” the group’s vice president, Justin Scorza, said in an interview with Courthouse News. “In those five years, lots of things have changed.”

Wednesday’s arguments highlighted the Hawaiian hoary bat, Hawaii’s only native terrestrial mammal plus its official state mammal.

The endangered species, which is protected by federal plus state laws, has been detected in the Haiku Valley plus could be displaced by the planned demolition, said Timothy Vandeveer, an attorney representing Friends of Ha’ikū Stairs.

City attorney Daniel M. Gluck presented four maps on a poster board. He argued that bats were inhabiting the daerah even in 2019, at the time of the original environmental impact statement, suggesting that statement remains adequate.

Acting Chief Judge Katherine G. Leonard, Judge Keith K. Hiraoka plus Associate Judge Sonja M.P. McCullen sat on the panel at the Hawaii Supreme Court.

Friends of Ha’ikū Stairs, which has championed the preservation of Windward Oahu’s Ko’olau mountain range for four decades, is appealing a judge’s January dismissal of its 48-page lawsuit

In addition to their environmental argument, Friends of Ha’ikū Stairs says the history of the stairs, which the U.S. military built during World War II, is a reason to preserve them.

During the war, Scorza explained, the valley allowed for long-range radio transmission the U.S. used it to transmit signals to submarines plus warships in Japanese waters.

Today, technically off-limits to visitors, the path has been the site of at least 15 arrests plus 80 trespassing citations since April 2023. Just this past weekend, two men were arrested plus charged after police caught them hiking the stairs, while a third individual escaped into the mountain. The two men caught were charged with trespassing plus released on a $100 bail. Violators face up to a $1,000 fine plus 30 days’ imprisonment.

Monday: Day 1
Lesson:
An Introduction to Japanese Haiku Poetry; the Rules of Haiku.

Theme of the Lesson:
Introduce the Japanese Haiku poem and the rules that define the art form.

California State Standards:
Reading 2.2 – Analyze the way in which clarity of meaning is affected by the patterns of organization, hierarchical structures, repletion of the main ideas, syntax, and word choice in the text. Literary Response and Analysis 3.1 – Analyze the characteristics of subgenres (e.g., satire, parody, allegory, pastoral) that are used in poetry, prose, plays, novels, short stories, essays, and other dasar genres. Literary Response and Analysis 3.2 – Analyze the way in which the theme or meaning of a selection represents a view comment on life, using textual evidence to support the claim. Literary Response and Analysis 3.3 – Analyze the ways in which irony, tone, mood, the author’s style, and the “sound” of language achieve specific rhetorical or aesthetic purposes or both Literary Response and Analysis 3.3 – Analyze the ways in which poets use imagery, personification, figures of speech, and sounds to evoke readers’ emotions.

ELD Standard:
Listening and Speaking Cluster 2: Listen attentively to the stories and knowledge and identify important details and concepts by using verbal and nonverbal reponses.

Objectives:
By the end of this lesson, the student will…

identify a Japanese Haiku poem.
recognize the various rules of traditional Haiku poetry
analyze and differentiate the elements of Haiku poetry
Materials:
“Traditional Japanese Kabuki Music”: A collection from numerous sources; Photographs taken from the “Okunohoshimiche” Tour 2009; Writing and Enjoying Haiku: A Hands-On Guide by Jane Reichhold (Kodansha International Ltd., Tokyo, Japan, 2002.) The students will receive a handout that will provide them with “Six Basic Rules of Haiku” found on pages 49-52. Also, “A Checklist for Revising Haiku” and “Believe It or Not- More Rules” found on Pages 73-39. The Language of Literature: World Literature (McDougal Littell, Evanston. IL, 2002). – The students will be examining Haiku poetry on pages 541-549 of the textbook.

Prior Knowledge:
By the time we reach this unit on Haiku poetry, the students will have spent two weeks examining Ancient Japanese Literature. They will have read and analyzed short selections from The Pillow Book (Sei Shonagon); The Tale of Genji (Lady Murasaki Shikibu); Zen Teachings and Parables (Muso soseki); The Deserted Crone (a Noh Drama by Zeami Motokiyo) and an assortment of Tanka Poetry (Ono Komachi, Lady Ise, Ki Tsurayuki, and Saigyo). On the Friday before this unit this students were given the handouts on Haiku poetry rules taken from the Reichhold text and asked to read and study them.

Anticipatory Set:
As the students enter the classroom, they will hear the sounds of “Traditional Japanese Kabuki Music” being played. They will see assorted photographs of the natural beauty of Japan that the teacher took on the Okunohoshimichi Study Tour 2009.

Introductory Activity: A KWL Graphic Organizer: What do you know about Japan, Japanese, Culture, and Japanese Poetry?

Lesson Body:
What the teacher does:

The teacher allows the students ten minutes to listen to the music; view images of rural Japan; and jot down their ideas about Japan, its culture and poetry. The teacher will then ask the students to sharing the ideas aloud.

What the student does:

The students sharing their knowledge of Japan, Japanese Culture, and Japanese Poetry.

haiku, unrhymed poetic form consisting of 17 syllables arranged in three lines of 5, 7, plus 5 syllables respectively. The haiku first emerged in Japanese literature during the 17th century, as a terse reaction to elaborate poetic traditions, though it did not become known by the name haiku until the 19th century. The term haiku is derived from the first element of the word haikai (a humorous form of renga, or linked-verse poem) plus the second element of the word hokku (the initial stanza of a renga). The hokku, which set the tone of a renga, had to mention in its three lines such subjects as the season, time of day, plus the dominant features of the landscape, making it almost an berdiri sendiri poem. The hokku (often interchangeably called haikai) became known as the haiku late in the 19th century, when it was entirely divested of its original function of opening a sequence of verse. Today the term haiku is used to describe all poems that use the three-line 17-syllable structure, even the earlier hokku.

Originally, the haiku form was restricted in subject matter to an objective description of nature suggestive of one of the seasons, evoking a definite, though unstated, emotional response. The form gained distinction early in the Tokugawa period (1603–1867) when the great master Bashō elevated the hokku to a highly refined plus conscious art. He began writing what was considered this “new style” of poetry in the 1670s, while he was in Edo (now Tokyo). Among his earliest haiku is Bashō subsequently traveled throughout Japan, plus his experiences became the subject of his verse. His haiku were accessible to a wide cross section of Japanese society, plus these poems’ broad appeal helped to establish the form as the most populer form in Japanese poetry. After Bashō, plus particularly after the haiku’s revitalization in the 19th century, its range of subjects expanded beyond nature. But the haiku remained an art of expressing much plus suggesting more in the fewest possible words. Other outstanding haiku masters were Buson in the 18th century, Issa in the late 18th plus early 19th centuries, Masaoka Shiki in the later 19th century, plus Takahama Kyoshi plus Kawahigashi Hekigotō in the late 19th plus early 20th centuries. At the turn of the 21st century there were said to be a million Japanese who composed haiku under the guidance of a teacher.

The US Supreme Court has denied cert on several cases involving patents and trademarks, meaning that the Court will not consider the appeals and the lower court rulings will stand.

As Cornell Law School explains,
A writ of certiorari orders a lower court to deliver its record in a case so that the higher court may review it. …

Certiorari is generally associated with the writ that the Supreme Court of the United States issues to review a lower court’s judgment. A case cannot, as a matter of right, be appealed to the U.S. Supreme Court. As such, a party seeking to appeal to the Supreme Court from a lower court decision must file a writ of certiorari.

In the Supreme Court, if four Justices agree to review the case, then the Court will hear the case. This is referred to as “granting certiorari,” often abbreviated as “cert.“

The cases are summarized below.

Eolas Technologies v. Amazon.com
Eolas was started in the mid-1990s to commercialize early internet technologies. Eolas’s patent infringement claims against companies like Amazon and Google were invalidated in the Northern District of California as directed to a patent-ineligible abstract idea under 35 U.S.C. § 101.

On appeal, the Federal Circuit found that “interacting with information objects on the World Wide Web is an abstraction,” and thus not patentable under §101.

In its petition for cert, Eolas stressed the many requests for the Supreme Court to clarify the Section 101 eligibility test.

Chestek PLLC v. Vidal
In 2019, the US Patent and Trademark Office (USPTO) issued a final rule that required trademark applicants to disclose their domicile address on their applications.

Chestek PLLC, a trademark law firm, challenged the refusal by the USPTO of its own trademark applications for failure to list a domicile address, citing privacy concerns.

The Federal Circuit affirmed the USPTO’s refusal.

Cellect LLC v. Vidal
After Cellect sued Samsung Electronics over image-sensor technology, Samsung requested ex parte reexamination of Cellect’s patents, including three that received patent term adjustments (PTA) under 35 U.S.C. § 154(b) due to the USPTO’s delay in prosecuting the patent applications.

Cellect’s patent claims were invalidated during the ex parte reexamination for “obviousness-type double-patenting” (ODP or OTDP).

The Federal Circuit recently held that, when an inventor has two patents claiming obvious variants of the same invention, the ODP doctrine can invalidate the later-expiring patent.

This doctrine ensures that patent owners can’t unfairly extend their patent term. However, since patents within a patent family are similar, extending the term for one patent within a family can invalidate it under the OTDP doctrine.

The Federal Circuit found that Cellect could have avoided the ODP invalidations if it had filed terminal disclaimers on the patents at issue.

As the USPTO explains,
A terminal disclaimer is a statement in which a patentee or applicant disclaims or dedicates to the public the entire term or any terminal part of the term of a patent or patent to be granted (filed in an application).

Cellect contended in its petition for cert that the Federal Circuit’s ruling created unreasonable uncertainty in patent term length that patentees can only overcome by preemptively filing terminal disclaimers even when unnecessary.

Provisur Technologies v. Weber, Inc.
The Federal Circuit, in Weber, Inc. v. Provisur Technologies, Inc., vacated rulings by the Patent Trial and Appeal Board (PTAB) involving validity challenges by grill maker Weber against Provisur’s commercial food slicer patent claims.

The PTAB had concluded that Weber’s operating manuals were not available to the public and thus didn’t qualify as prior art publications because they had been distributed to only ten customers under confidentiality restrictions.

The Federal Circuit found that when a publication’s purpose is “dialogue with the intended audience,” that purpose indicates public accessibility.