In another sign of falling poll numbers, several key staffers on Charlie Crist's senate campaign have departed for "other opportunities." 

Crist now trails his primary opponent, Marco Rubio by roughly 18 points among likely Republican voters.  Rubio has been hailed by some as the "GOP's Obama." 

Embattled community activist organization ACORN is closing its offices around the company and dissolving its legal status as it runs out of funds.  Politico reports: 

"ACORN has dissolved as a national structure of state organizations," said a senior official close to the group, who declined to be identified by name because of the fierce conservative attacks on the group that began when a conservative filmmaker caught some staffers of its tax advisory arms on tape appearing to offer advice on incorporating a prostitution business.

"The videos proved a rallying point for conservatives who had long accused the group of fomenting voting fraud. Though the videos did not produce criminal charges, they appear to have been fatal to the national organization."

The Senate voted yesterday to move forward with Senator Reid’s stripped-down version of the Hiring Incentives to Restore Employment Act.  

The bill could be voted upon by the Senate by the end of the week.  Reid’s version of the bill, however, omits the extension of the alternative fuel mixture and biodiesel tax credits that were included in the earlier (Baucus/Grassley) version of the bill.

(Cross-posted on Renewable Energy Memo.)

Please join my colleagues from the ABA Public Utility Section in this CLE seminar on February 25, 2010.  Part 1 in this series was a panel discussion last week including Ken Driver and Rob Brubaker.  

In Part 2, Dorothy Franzoni, Ken Kulak and Casey Wren will explore the challenges and opportunities posed by the renewable energy sector in 2010, Part 2 begins by addressing another important federal initiative - the smart grid program. Through grants and loans, this program encourages the integration of information technology into the nation's transmission and distribution grid, to give market participants and consumers the information they need to make better decisions. Next, the panel explores the growth of mandated renewable portfolio standards at the State level and reviews various issues (e.g., eligibility, delivery and cost concerns) that have arisen during the implementation of State programs. The panel concludes by discussing the lessons Texas can offer federal policy makers. Texas experienced a major boom in renewable energy production in 2008, and has been dealing with the problems posed by that success ever since.

That's what Charles Cook calls the Administration's approach to health care. 

James Carpetta and Yuval Levin sum up the Administration's approach to health care in the coming week pretty well: 

"Well, so much for the pivot to jobs. Late last week, the Obama administration and congressional Democrats made clear that, rather than turn to voters' economic concerns in this winter of discontent, they want to persist in pushing the health care proposals they have championed for a year-proposals voters have rejected by every means at their disposal, from expressing (a still growing) opposition in polls, to scolding members of Congress in town hall meetings, to handing Ted Kennedy's Senate seat to a Republican."

"It is now clear that the "summit" the president has called for February 25 is not intended to consider different approaches to health care financing, but rather to create an illusion of momentum that might just lull disoriented congressional Democrats into ramming the health care bill through the budget reconciliation process. "

Today's Fulton County Daily Report carries an article (subscription required) on our latest addition here at Taylor English Duma LLP, Atlanta patent lawyer Jeffrey R. Kuester.

Jeff Kuester left intellectual property boutique Thomas, Kayden, Horstemeyer & Risley to develop a patent prosecution practice for Taylor English Duma. Kuester is the first patent prosecutor at Taylor English Duma, specializing in electronics, software and telecommunications patent applications. Kuester is also well-known among Internet lawyers as the founder of the KuesterLaw website.

Kuester was a founding member of Thomas Kayden in 1996, and said that his move to Taylor English would give him the opportunity to develop his patent litigation skills. "I've done some patent litigation and would like to do more," he said. Taylor English plans to hire patent agents to support his patent prosecution work.

Kuester said he became interested in the Taylor English model after talking to firm partner Gregory G. Schultz, whom he knew personally, and Perry McGuire, whom he knew from McGuire's tenure in-house at Chick-fil-A before McGuire joined Taylor English.


"Patent prosecution has become more cost-pressured over the years," said Kuester. "Taylor English is well-positioned with regard to its low overhead and rate structure to address those changes." Taylor English is comprised almost entirely of partners, with few associates, and occupies suburban office space to keep overhead lower than at big Midtown firms.

Two high-profile clients for Kuester are Bernard Bilski and Rand Warsaw, whose case over a patent application was argued at the U.S. Supreme Court in November. Bilski v. Kappos is being closely watched because it is expected to set parameters for what can be patented as a business method. Kuester is representing Bilski and Warsaw, who have an interest in the prospective patent but are not its owners (who are represented by another firm).

Bilski and Warsaw applied for a patent in 1997 for what they say is a mathematical process that makes energy costs more predictable for utilities, by factoring in weather fluctuations and the effect on supply and demand in advance, so utilities can bill customers at a fixed monthly rate. The two started WeatherWise to offer this service to utilities. Bilski left the company in 2003, but Warsaw still runs the consultancy.

The business method patent was turned down by the U.S. Patent and Trademark Office and then the federal appeals court.

"That decision was the first in a long time that put the brakes on business method patents," said Kuester. The two inventors appealed to the Supreme Court, and sixty-seven amicus briefs were filed in the case.

A ruling that Bilski and Warsaw's process is not a patentable business method would put a freeze on the burgeoning field of business-method patents, said Kuester, who believes allowing such patents fosters innovation. "If it's not patentable, people will keep it a trade secret and proprietary," he said. "That's been my professional life. I'm looking out for the inventors."

Please join me at 1pm eastern on Thursday, Februaty 18th for a webinar on challenges and opportunities in renewable energy. 

Program Description

In the first of a two-part series that explores the challenges and opportunities posed by the renewable energy sector in 2010, Part 1 addresses a range of federal public policy initiatives that target renewable energy. 

In 2009, the federal government committed billions in potential grants and tax incentives for renewable energy projects, yet each incentive program carries with it a unique mix of costs and benefits.  At the same time, Congress, the agencies, and the courts are tackling environmental matters in a way that could impose major new costs on emitting greenhouse gasses, placing a premium on the renewable generation of electricity.  Finally, because many renewable resources are located far from consumers, the surge in renewable generation is posing a major challenge for the U.S. electric transmission system.  So far, progress has been slow, and without new planning, siting, and cost-allocation systems, the limits of today’s transmission system could delay future renewable energy projects. 

Program Faculty

Kenneth B. Driver (Moderator), Partner, Jones Day, Washington, DC

Robert Brubaker, Porter Wright Morris & Arthur LLP, Columbus, OH

Jonathan B. Wilson, Taylor English Duma LLP, Atlanta, GA

CLE Credit

1.5 hours of CLE credit in 60-minute states/1.8 hours of CLE credit in 50-minute states have been requested in states accrediting ABA teleconferences and live audio webcasts.*

NY-licensed attorneys: This non-transitional CLE program has been approved for experienced NY-licensed attorneys in accordance with the requirements of the New York State CLE Board for 1.5 total NY CLE credits.

The following states accept ABA teleconferences for CLE credit:
AL, AK, AR, AZ, CA, CO, FL, GA, IA, ID, IL, KY, LA, ME, MN, MO, MS, MT, NC, ND, NH, NM, NV, NY, OK, OR, RI, SC, TN, TX, UT, VA, VI, VT, WA, WI, WV, WY.

*States currently not accrediting ABA teleconferences: DE, IN, PA, KS, OH

Click here to view a map of MCLE states

My brother, Tom Wilson from Brinker Capital, appears on Fox News discussing Dow 10,000.

(It must have been a coincidence that all the other talking heads were snowed in!). 

In an odd (perhaps bizarre) display of picque, Senate Majority Leader Harry Reid blasted the American Bar Association after the ABA's judicial qualifications board rated one of Reid's nominees for the federal bench as "qualified" while a minority rated the nominee as "not qualified."

The ABA's judicial qualifications board rates nominees as "well qualified," "qualified" or "not qualified." 

In the past, conservatives have criticized the ABA's judicial qualifications rating process as being biased towards liberals, so Reid's criticism (coming from a liberal) is striking. 

Reid's nominee, Gloria Navarro, a 42 year-old attorney who has practiced as a public defender and as a district attorney, has never before been a judge.  If approved by the Senate as a federal judge, her appointment would be for life.

Reid told the ABA's qualifications board that it should "get a new life." 

President Obama today announced a series of steps as part of a comprehensive strategy to enhance American energy independence and build a foundation for a new clean energy economy.

The administration believes that the strategy will create new industries and millions of jobs. (Reuters;  Reaction from Renewable Fuels Association).  At a meeting with a bipartisan group of governors,  the President set forth three efforts that he believes will work in concert to boost biofuels production and America’s dependence on foreign oil:

• The Environmental Protection Agency (EPA) has finalized a rule to implement the long-term renewable fuels standard of 36 billion gallons by 2022 established by Congress.

• The U.S. Department of Agriculture has proposed a rule on the Biomass Crop Assistance Program (BCAP) that would provide financing to increase the conversion of biomass to bioenergy. 

• The President’s Biofuels Interagency Working Group released its first report – Growing America’s Fuel. The report, authored by group co-chairs, Secretaries Vilsack and Chu, and Administrator Jackson, lays out a strategy to advance the development and commercialization of a sustainable biofuels industry to meet or exceed the nation’s biofuels targets. 

In addition, President Obama announced a Presidential Memorandum creating an Interagency Task Force on Carbon Capture and Storage to develop a comprehensive and coordinated federal strategy to speed the development and deployment of clean coal technologies. The U.S. will continue to rely on the availability and affordability of domestic coal for decades to meet its energy needs, and these advances are necessary to reduce pollution in the meantime.

The Presidential Memorandum calls for five to ten commercial demonstration projects to be up and running by 2016.

President Obama said, “Now, I happen to believe that we should pass a comprehensive energy and climate bill. It will make clean energy the profitable kind of energy, and the decision by other nations to do this is already giving their businesses a leg up on developing clean energy jobs and technologies. But even if you disagree on the threat posed by climate change, investing in clean energy jobs and businesses is still the right thing to do for our economy. Reducing our dependence on foreign oil is still the right thing to do for our security. We can’t afford to spin our wheels while the rest of the world speeds ahead.” 

“Advancing biomass and biofuel production holds the potential to create green jobs, which is one of the many ways the Obama Administration is working to rebuild and revitalize rural America,” said Agriculture Secretary Tom Vilsack. “Facilities that produce renewable fuel from biomass have to be designed, built and operated. Additionally, BCAP will stimulate biomass production and that will benefit producers and provide the materials necessary to generate clean energy and reduce carbon pollution.”

“President Obama and this Administration are strongly committed to the development of carbon capture and storage technology as a key part of the clean energy economy. We can and should lead the world in this technology and the jobs it can create,” said Energy Secretary Steven Chu. “The actions President Obama has taken today will create jobs, slash greenhouse gas emissions and increase our energy security while helping to put America at the leading edge of the new energy economy,” said EPA Administrator Lisa P. Jackson. “The renewable fuel standards will help bring new economic opportunity to millions of Americans, particularly in rural America. EPA is proud to be a part of the President’s effort to combat climate change and put Americans back to work – both through the new renewable fuel standards and through our co-chairmanship with the Department of Energy of the Interagency Task Force on Carbon Capture and Storage.”

(Cross-posted at RenewableEnergyMemo).

Stuart Taylor had a thoughtful piece recently that broke through the tired arguments about trying terrorists in civilian courts. 

Republicans have argued that the 9/11 suspects and the Christmas Day bomber should be tried in military tribunals because the perpetrators originated outside the U.S. and brought to bear a level of violence (or attempted violence) that was more akin to combat that crime.  Because the perpetrators viewed themselves as combatants and were engaged in conduct that was more like combat than crime, they argue, they should be treated as combatants.

Democrats have argued that the destinction between crime and combat is too fine to draw and that U.S. ideals were be better upheld by trying suspected terrorists in U.S. courts, allowing the virtues of the American justice system to shine through.

Taylor correctly argues that the Obama administration's mistake is in acting too much like the Bush administration by relying upon "unilateral presidential power and judicial improvisation."  What the country needs, Taylor argues, is new legislation that creates an alternative process for combatant criminals of the kind typified by Khalid Sheikh Muhammad and Umar Farouk Abdulmutallab. 

The stark choice between unilateral executive action and the slow deliberation of the U.S. criminal justice system is a choice we don't have to make.  Taylor proposes that Congress adopt new legislation that allows the government to detail suspects without trial for a limited period of time under circumstances in which the administration takes the position that the perpetrator is acting as the agent of a foreign power.  Taylor writes:

"Congress could, for example, authorize preventive detention and incommunicado interrogation of suspects such as Abdulmutallab for up to 10 days if, and only if, the attorney general certifies that there are reasonable grounds to believe that the suspect is a member or material supporter of an international terrorist group or conspiracy and that the suspect's release would endanger public safety."

"Such a law could also provide that after the 10 days, or longer in special cases if the government makes a showing of necessity, authorities must choose whether to relegate the suspect to the ordinary criminal process, to a military commission, or to longer-term detention without criminal charges as an enemy prisoner."

"Terrorism suspects who are subjected to long-term detention could have a right to timely, trial-like due process hearings at which to dispute claims that they are dangerous, both 10 days after their arrest (except in special cases) and at regular intervals thereafter. The government's burden of proving dangerousness should become heavier as the time spent behind bars increases."

The political gridlock now prevailing and the Administration's focus on domestic policy (health care and stimulus bills) virtually guarantee that Taylor's proposal will not get the attention it deserves.  But if you believe that the problem of Islamic terrorism will be with us longer than the present administration, Taylor's idea is one worth pursuing for the day when Congress is ready to consider it.