The Sovereign Citizen: Denaturalization and the Origins of the American Republic by Patrick Weil

We each deploy an array of identities in forming our social selves -- we can be, say, a Methodist and also a Southerner, and black and a civil engineer and gay. And all of this and still an American. Each aspect distinguishes us; together they individuate us. No single identity -- even that of our nationality -- adequately describes who we are, how we see ourselves. In these times, we no longer see the possession of one nationality as excluding another; many have more than one nationality. We can be both French and American; one does not displace the other in the modern imagination. (A nod to the late Tom Franck here, who explored these themes, personally and in his writings on nationality.)

Yet certain identities have been viewed as inherently incompatible with the holding of the fullest form of American national identity: U.S. citizenship. At various times one could not be an anarchist or an Asian or a Nazi or a communist and become (or perhaps remain) an American. Patrick Weil examines these disabling identities in The Sovereign Citizen, a thorough history of U.S. naturalization law. His emphasis lies with denaturalization: that is, the legal reversal of the grant of U.S. citizenship to an alien. For much of the 20th century, the recourse to denaturalization expands in parallel with the stiffening of opportunities for immigration. The vulnerability to denaturalization marked the ‘second class’ nature of U.S. citizenship acquired through naturalization; the hold of U.S born citizens on their nationality was (and continues to be) more secure. Denaturalization as a broad practice then collapses: from the Warren Court onward denaturalization has become an exceptional act.

Our view of citizenship shifted during the 20th century. It began as an exclusive (if not jealous) relationship between the United States and its nationals, characterized by duty and loyalty. These understandings differ from today’s far more easygoing tolerance (if not encouragement) of multiple nationalities and distributed allegiance. Weil’s book explores and the targets and the techniques of denaturalization.

Extraterritorial Government Use of U.S. Process Patents after Zoltek

The federal government -- and its contractors and subcontractors -- have long enjoyed an effective ‘compulsory license’ for the use or manufacture of inventions covered by a U.S. patent. 28 U.S.C. §1498 relaxes the government’s sovereign immunity and supplies a special remedy to the patent holder. The patent holder may recover reasonable compensation from the federal government for the use or manufacture. Thus, a government contractor can carry out a contract without concern for an infringement action; the government will answer any patent holder’s claims.

The operation of Section 1498 applies to both product and process patents. Section 1498 contains an express limitation to any claims ‘arising in a foreign country.’ This limitation, as well as the territorial limitation found in the basic patent infringement statute [35 U.S.C. §271(a)], and their interpretation with respect to process patents, were the basis of the dispute between Zoltek Corporation and the federal government.

The eventual resolution of the Zoltek litigation by the Federal Circuit [672 F.3d 1309] settles various questions of interpretation concerning the extraterritorial dimensions of the government use ‘license’ with respect to process patents -- but it also leaves a rather worrisome ‘gap’ in the coverage of the basic provisions concerning process patent infringement. Consider these two propositions:

1. In the absence of authorization, where every step of a process patent is practiced in the United States, liability under 35 U.S.C. §271(a) results. However, if any step of a process patent is practiced outside the United States, there is no direct infringement. 
2. Where every step of a process patent is practiced outside the United States and the resulting product is imported into or used within the United States, liability under 35 U.S.C. §271(g) results. 

So here’s the gap (and the facts of Zoltek seem to fall into this gap): if a process patent is practiced partly in the United States and partly outside the United States, there may be no liability. This odd result seems to follow from the text of 35 U.S.C. §271(g), which is triggered by the importation or use of a product.

Talent Wants to be Free: Why We Should Learn to Love Leaks, Raids, and Free-Riding by Orly Lobel

Orly Lobel is not writing about love in Talent Wants to be Free, but she’s not terribly far off topic, for she writes about the suffocating attachments firms can form with their employees. The heart-sickened are told to let go -- and perhaps their beloveds will come back to them. This may be the better course, but it isn’t easy and it certainly isn’t what most of us do (with our insecurities and covetousness). Firms are jealously possessive of their key employees; this is a social fact. Lobel challenges these firms (and the responding legislatures) to consider whether they are indeed pursuing their own best interests by clinging.

Lobel usefully gathers a variety of legal doctrines and instruments into a basket she calls “human capital controls” -- and for this alone her book should be read. Human capital controls include IP and quasi-IP (trade secrets and know-how) rights, as well as a host of contractual features: non-competes, non-disclosure agreements, compensation arrangements (option grants and forfeitures) and post-termination obligations. Together, these elements bind the talented employee to her employer. The orthodox justification for these controls is that they promote firm investment in innovation, including investment in human capital -- that is, in forming the movable productivity of the employee herself. It is the workplace, and not the university, where most valuable human capital is created.

Lobel directly investigates the logic of control -- which is easily conflated with ownership. By controlling human capital, firms capture some of its produce. Creative workers create. In addition, firms withhold these assets from their competitors. According to the received view, employees are rivalrous goods. Lobel challenges this notion (though perhaps not explicitly) -- while we are not public goods, our creations often are.

Hunting Season: Immigration and Murder in an all-American Town by Mirta Ojito and The Winter of Our Discontent by John Steinbeck

In Hunting Season, Mirta Ojito tells the horrific story of the killing of an Ecuadorian immigrant, Marcelo Lucero, in Patchogue, Long Island at the hands of a group of brutish teenagers. It is a small-town story with international reverberations. At first blush, it is an investigation of American intolerance for the other run wild. Lucero was a poor, hard-working man, searching for a better life. His attackers are themselves lost souls, largely unknown to one another prior to the evening of Lucero’s killing. Each kid seems to lack the basic human understanding that there is something wrong with beating up a man simply because he is a ‘beaner.’ Patchogue is or was a community where the blood sport of attacking random Latinos goes unremarked. It is a dreadful story Ojito presents, and Patchogue appears as a dreadful place.

So what has happened in Patchogue? What does the killing of Lucero constitute? The knife-wielding 17-year-old points to his Latina girlfriend to demonstrate his open mind. Another attacker is both Puerto Rican and black -- the kids embrace him as their friend. Our American experience with racism -- and hence hate crimes -- largely involves victims from established and permanent communities (including the native community). Nativist violence may fall into a different category. The Patchogue 7 conceded they identified and attacked Lucero because of his ethnicity -- but there seems to be more that drew Lucero into their trap. They also understood that Lucero was a foreigner -- and likely one with a shaky immigration status. Lucero’s vulnerability invites this community reprisal.

Post-Financial Crisis Spiritual Reading: the 2013 FT/Goldman Sachs Best Business Book Award

The readers of business books are a fragile lot. They’re uncertain of their talents and the scope of human possibility, confused as to direction (they’re largely not one-percenters). Their anxieties lead them to seek reassurance - from authors who project an understandable and manageable world. It is little surprise that business books resemble spiritual books - they are marked by a confident if not omniscient tone, they judge the unrighteous, they show us the way. The six finalists for the 2013 Financial Times/Goldman Sachs Business Book of the Year Award extend these comforts.

For more of this essay, see "Post-Financial Crisis Spiritual Reading" at the Los Angeles Review of Books.

On November 18, the 2013 Financial Times/Goldman Sachs Business Book of the Year Award was awarded to Brad Stone for The Everything Store: Jeff Bezos and the Age of Amazon.

See my Attraverso review of The Everything Store here.

And you can find below links to my reviews of the five other finalists:

• Neil Irwin, The Alchemists
• Iain Martin, Making It Happen: Fred Goodwin, RBS and the Men Who Blew Up the British Economy
• Viktor Mayer-Schönberger and Kenneth Cukier, Big Data
• Anita Raghavan, The Billionaire’s Apprentice: The Rise of the Indian-American Elite and the Fall of the Galleon Hedge Fund 
• Sheryl Sandberg, Lean In: Women, Work, and the Will to Lead

The Everything Store: Jeff Bezos and the Age of Amazon by Brad Stone

Brad Stone’s treatment, The Everything Store: Jeff Bezos and the Age of Amazon, is the talk of the business press this week. Jeff Bezos’ wife, MacKenzie Bezos, posted a ‘one-star review’ of the book on the Amazon site. In it, she expresses concerns about the book’s ‘factual inaccuracies’ and ‘narrative tricks.’ While she certainly had a better view of the recounted events than did Stone, her objections seem quibbling. This is a thoughtful and well researched book, with a surprisingly balanced tone: Stone neither praises Jeff Bezos nor does he bury Bezos.

Stone’s book is both a CEO biography and a corporate history. Bezos is the exception that proves the rule; he is the visionary founder who wasn’t pushed aside for a professional ('adult') manager. And given Bezos’ continuity at the helm of Amazon, one can fairly charge much of Amazon’s success -- and its bullying behavior -- to Bezos.

Stone’s book is a prosecutor’s dream -- it is a catalog of unfair business offenses (were such behavior disciplined today). There is a zone of indeterminacy involved in most bargaining: between the terms a party would accept and the better terms a party might exact (before driving the other party away). Bezos is shown to consistently drive for the very best outcome in Amazon’s dealings -- where the greater part of the joint benefit falls to Amazon and a bare minimum is left for the ‘cooperating’ counterpart. Perhaps this is to be admired; we’d all like to be ‘tough bargainers.’ But Bezos (as depicted by Stone) doesn’t pull punches. He is capable of ‘refusing to deal.’ He applies price pressure against smaller firms. He levers Amazon’s immense power against competitors and partners.

Euro Money as Euro Language

This is the first of a series of reflections on the social meaning of the Euro.

Investigations of the social character of money often feature an analogy to language. Like words, money forms intelligible signs. Money, like language, is a critical medium of social exchange. Money, like language, is constitutive of identity: the particular kind of money we use, in part, makes us who we are. And money, like language, is both stable and unstable over space and time.

The architects of the European Monetary System (EMS) anticipated that the Euro would serve as an institution around which a European consciousness could be built. The Euro (at least in its material forms) functions like the EU flag or the EU passport to construct a new identity that plays on commonplace nationalist expectations. That is, when we see flags or passports or money, we have been acculturated to expect national sponsorship. The European Union thus displaces the traditional state in presenting itself through these institutions; if not precisely declaring itself to be a state, the European Union is, at a minimum, asserting that it is like a state for various intents and purposes.

But notice the peculiarly assertive case of the Euro. The EU flag often flies alongside the traditional flags of the EU Member States. The EU passport is formally issued by the respective member states: while it prominently features “European Union” on its harmonized cover, it also bears the name of the relevant member state. The EU passport in fact overstates the EU nature of the document. A passport begs the admission of a members state’s nationals into another state’s territory; it is only secondarily evidence of nationality (and in the case of EU passports, evidence of the bearer’s status as an EU citizen). Through flags and passports, the EU and the relevant EU member state co-occupy a space in the EU citizen’s imagination that had been occupied by the state alone.