Sunday, February 12, 2017

Yale University "expels" John C. Calhoun name

The re-naming of a residence hall at Yale University from Calhoun to Hopper was big news on 11 Feb. 2017, just one day before
Lincoln's birthday. The Washington Post, among others, discussed the matter:

Yale University will rename one of its residential colleges, replacing the name of an alumnus remembered as an advocate of slavery [Calhoun] with that of an alumna who was a pioneering mathematician and computer scientist who helped transform the way people use technology [Hopper, who obtained MS and PhD degrees from Yale].

The legacy of Calhoun, who graduated from Yale in 1804 and 1822 and served as a U.S. vice president, secretary of state, secretary of war and senator, becoming an influential champion of slavery, had been debated at the school over the years. But those discussions turned to urgent pleas in 2015 after a white man who revered the Confederacy fatally shot nine black worshipers at a church in Charleston, S.C. That led South Carolina lawmakers to take down the Confederate flag that had long flown at the state Capitol, and efforts at Yale and elsewhere to stop honoring the name of Calhoun and other people associated with slavery and white supremacy.

[link: ]

Yes, Calhoun, a Southern firebrand, graduated from Yale University (in fact, class valedictorian) and separately went to Litchfield law in Connecticut. Calhoun was vice-president TWICE under two different presidents (JQ Adams AND Jackson). His appointment as secretary of state is connected to the very unusual incident involving the USS Princeton, which has some curious New Jersey connections. Also curious is the origin of Calhoun's ideas on nullification, from the New Englanders he met at Yale, who were unhappy with life under Thomas Jefferson.

As to some invention connections, Eli Whitney, who also went to Yale, wanted to be a lawyer, but didn't have the funds, so he got an appointment in South Carolina, and on the way got the inspiration for the invention of the cotton gin. The USS Princeton was the Navy's first screw-propelled steam sloop and was designed by one John Ericsson (later the inventor of the Monitor). Ericsson also designed a novel 12 inch gun, initially called the Orator, and later the Oregon. Robert Stockton (of New Jersey fame) provided the political clout for the project but also started claiming inventorship credit. A second gun designed by Stockton {the Peacemaker), but lacking the improvements of Ericsson, exploded on February 28, 1844, killing, among others, then Secretary of State Abel Upshur, which opened that position for Calhoun. Armistead, the slave and valet of President Tyler, was also killed, and "but for" going down ship, President Tyler likely would have been killed. Stockton shifted blame for the disaster to Ericsson, who developed a distrust of the US Navy, which may have delayed adoption of Ericsson's later inventions.

** Some text about the "cotton gin":

from Joseph H. Sommer, 15 Berkeley Tech. L.J. 1145 (2000) on the relationship between the cotton gin and slavery:

In 1793, while the "peculiar institution" of slavery was quietly dying of its own economic inefficiency, Eli Whitney invented the cotton gin. Cotton became King, and slavery became profitable again. n14 Law, commerce, [p. 1152] and society rapidly adapted to the new profitability of slavery. This new technology profoundly influenced antebellum commercial law, n15 human rights law, n16 family law, n17 and potentially the law of electronic commerce. n18 In the years 1865-67, the law of the cotton gin reached as far as the U.S. Constitution, with the adoption of the Thirteenth through Fifteenth Amendments. In the latter decades of the nineteenth century, the older law of the cotton gin began to re-emerge, with the advent of Jim Crow. n19 This retrograde trend, in turn, was checked in the early twentieth century n20 and has subsequently retreated.

Accord, Stephen M. Feldman, 81 Brooklyn L. Rev. 1 (2015) :

Yet the Framers did not anticipate how important slavery would soon become. In 1793, Eli Whitney invented the cotton gin and transformed the cotton industry. n120 In short order, cotton became an incredibly profitable crop that was highly reliant on slave labor. n121

from Michael Risch. AMERICA'S FIRST PATENTS, 64 Fla. L. Rev. 1279 (2012) :

In addition to determining whether the patent covered an improvement or not, courts also considered the principles of inventions to determine what the invention was in the first place. For example, in Whitney v. Carter, a case involving the cotton gin, the court attempted to determine whether prior machines invalidated Eli Whitney's patent due to lack of novelty. n158 To make this determination, the trial court had to first decide what the invention was, and the court
agreed with the plaintiff's counsel that the legal title to a patent consists, not in a principle merely, but in an application of a principle, whether previously in existence or not, to some new and useful purpose. And [the judge] was also of opinion that the principle of Mr. Whitney's machine was entirely new . . . . n159

While the court noted that principles were not patentable, the statement was merely an aside to the important question in the case: how the patentee applied the principles and whether the prior art applied the same principles.

from Steven Cherensky, 81 Calif. L. Rev. 595 (1993) , on how Whitney's invention was what the framers had in mind when discussing patents:

Eli Whitney's invention of the cotton gin in many ways typifies late- eighteenth-century invention. n49 Whitney did not study to be an inventor; indeed, such an education would have been unavailable had he desired it. n50 While a guest at a South Carolina plantation, he heard neighboring planters discuss the difficulty of cleaning the local upland cotton of its seeds and the importance to the region of an improved cleaning machine. Whitney was persuaded to try his hand at a solution:

Whitney had never seen a cotton boll and had scarcely listened to the talk around him. But when his hostess proposed, albeit without undue urging, that he try to devise a machine, he pursued her suggestion ...

... A few days later he "involuntarily happened to be thinking on the subject and struck out a plan of a machine ...." n51

That machine, of course, was the cotton gin. Whitney built his first model from wood, wire, and other materials that were readily available on the plantation. n52

Invention has changed dramatically in the 200 years since Whitney "struck out a plan" of his machine. Whitney's development of the cotton [*608] gin is the inventorship paradigm envisioned by the drafters of the first Patent Act: the ad hoc problem-solving of the individual, generalist "hero-inventor." Organized invention was virtually unheard of at this time. n53 Although the work of independent inventors remains important, n54 most economically significant inventions today arise out of organizational environments. n55 Thus, this Comment proceeds from the assumption that the most important changes in inventorship paradigms over the last two centuries have been due to the appearance and growth of industrial laboratories and the professionalization of invention.

from Benjamin N. Roin, 81 U. Chi. L. Rev. 999 (2014) on how Whitney monetized his invention:

In 1802, South Carolina purchased Eli Whitney's patent rights on the cotton gin within the state for $ 50,000, although Whitney experienced some trouble collecting the prize. See id at 1145.

BUT see also, Elizabeth M. Thoman, 83 U. Cin. L. Rev. 989 (2015) :

Thomas Jefferson issued Eli Whitney a patent for the cotton gin [p. 993] on March 14, 1794. n17 Shortly after receiving his patent, Eli Whitney went on to be christened the first patent troll. n18 While Whitney revolutionized plantation life through his invention, his commercial success was stunted due to the simplicity of product replication and the costs associated with manufacturing. n19 Whitney spent nearly ten years in court litigating against other manufacturers of similar mechanisms, claiming that they had infringed on his rightfully possessed patent. n20

AND from Ryan Hauer, 24 DePaul J. Art Tech. & Intell. Prop. L. 367 (2014) :

In fact, some believe that the one of the first "patent trolls" was Eli Whitney, the inventor of the cotton gin. n8 Whitney's first attempts of manufacturing and selling the cotton gin proved to be commercially unsuccessful, forcing Whitney to sue plantation owners that used Whitney's patented gin in order profit from his invention. n9

AND from DAVID G. BARKER, 2005 Duke L. & Tech. Rev. 9 (2005) :

The desirability of such patent purchases is demonstrated by the conditions surrounding Eli Whitney's cotton gin. Whitney received a patent for the cotton gin in 1794. n32 Prior to Whitney's invention, one farm worker could produce one pound of cotton lint per day by hand. However, with the advent of the cotton gin, one worker was able to produce nearly fifty times that amount. n33 Before Whitney invented the gin, the South was exporting 487,000 pounds of cotton to England per year. One year after the cotton gin, that number increased to 1.6 million pounds. n34 By the time Whitney died in 1825, cotton exports to England alone reached 171 million pounds. n35 In 1850, Thomas Macaulay noted, "What Peter the Great did to make Russia dominant, Eli Whitney's invention of the gin has more than equaled in its relation to the power and progress of the United States." n36 The cotton gin was a useful, novel and nonobvious invention, meeting the criteria for patentability.

from ALAN L. DURHAM, 53 B.C. L. Rev. 489 (2012) , related to Lemley's "Myth of the Sole Inventor":

Even breakthrough inventions like Eli Whitney's cotton gin were modifications [p. 506] of existing technology. n158

from Catherine L. Fisk, 65 U. Chi. L. Rev. 1127 (1998) :

The notion that a single person was the inventor of an idea, and that he owned not only the particular thing he built (for example, the cotton gins that Eli Whitney himself made), but also the idea embodied in that thing (and thus had an exclusive right [*1142] to make any similar thing), was a conception of property in ideas, an attribution of causation, and an individuation of what is necessarily a social process. That notion of individual inventorship and of property in ideas developed over the course of several centuries. By the nineteenth century, however, it was so widely accepted as to seem a matter of natural right. n42 The legal and philosophical roots of the individual inventor's right to exclusive dominion over his ideas were deep and strong by the time courts began to combine the law of patents with the law of master and servant in the late nineteenth century.

---And as footnotes to this post

** from Mark L. Wolf, 1 B.U. J. SCI. & TECH. L. 1 (1995) :

It is, therefore, not surprising that only three patents were granted that first year, 1790. n11 Eventually, there were more patents issued during Jefferson's tenure as Secretary of State. These included Eli Whitney's cotton gin, which had such profound and dark consequences for our national history. [11]

Still seated at my desk, if I look over my right shoulder, I see a statue of Abraham Lincoln and a print that was published as a memorial after his death. Lincoln had only one reported case outside of Illinois. His fame as a lawyer was very much local, but he was known as a very effective Illinois lawyer. The one case that took him outside of Illinois was a patent case. [12]

When the patent for Cyrus McCormick's reaper was challenged in Illinois, Lincoln was hired to argue the case as local counsel. n12 Lincoln was associated in that litigation with two other lawyers, Edwin Stanton, who was nationally renowned as a general litigator, and a gentlemen named Harding, who was a leading patent lawyer of his era. n13 The case, however, was transferred to Cincinnati where it was assigned to Supreme Court Justice John McLean, who was then riding the circuit, trying cases. n14 [13]

Lincoln took this assignment very seriously. He prepared thoroughly. He arrived in Cincinnati, expecting to be a partner in the trial team. His distinguished colleagues, however, would have nothing to do with him. Stanton said, in Lincoln's presence, that he would not be professionally associated with "that Gorilla." n15 When it came time to go to the courthouse, Lincoln suggested that the three lawyers walk over together. Stanton and Harding, however, refused to be seen with him. n16 It was also the custom during that era for the lawyers who were presenting the case to dine with the judge. Nevertheless, Stanton and Harding would not let Lincoln join them and Justice McLean. n17 [14]

That experience did not turn Abraham Lincoln off on patent law. Rather, in 1859, shortly before he was elected President, Lincoln gave a talk on "Discoveries and Inventions." n18

**History of Slavery in New Jersey


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