Wednesday, August 31, 2016
Bard Signing In
Let me start my third visit to Prawfs Blog with warm thanks to Howard Wasserman and to my fellow bloggers for the work they have done keeping this forum going. As the public information about Professor Markel’s murder becomes increasingly lurid, I’d rather focus on his work than on the circumstances of his tragic death. And from the beginning his work on this blog was to provide legal academics a forum to talk to each-other about matters of interest to them—whether it was highlighting a new study, commenting on a case or talking about legal academe.
As a brief self introduction, I’m starting my second year as the very proud dean of the absolutely amazing University of Cincinnati College of Law. Every day I hear something about what one of our faculty, alumni, staff or students are doing and I’m proud to have a role in sustaining the framework that allows these things to happen at our historic law school. So I’m going to talk about legal education. But as an engaged health law academic specializing in ethical issues in public health, the unchecked spread of Zika in the United States is also going to be a topic of discussion. Thank you for having me. It is a real honor to be included.
Posted by Jennifer Bard on August 31, 2016 at 09:37 PM in Article Spotlight, Blogging, Culture, Current Affairs, Dan Markel, Howard Wasserman, Information and Technology, Life of Law Schools, Lipshaw | Permalink
Goodbye and Some Things to Watch
A month passes surprisingly quickly! I'm grateful to have had the opportunity to join Prawfs as a guest blogger and for the people that have reached out because of the posts. I'm also leaving with tremendous respect for folks like Howard that keep blogging year round.
After the jump, I flag two interesting business law areas that I plan to watch in the year ahead for interesting classroom material and potential scholarship ideas. In one area, changing technology and business practices may stress existing legal systems. In the other, new enforcement programs may change business culture.
Technological Innovation: Cryptocurrencies & Distributed Ledger Technology
The distributed-ledger technology behind cryptocurrencies like Bitcoin seems likely to continue developing in significant ways. I've had a number of students approach and ask about its implications for business and finance. While there are some scholars writing in this area already, it remains a developing field. In one recent event, an alternative cryptocurrency collective created a decentralized venture capital fund and raised $152 million for the project, leading the New York Times to call it "the most successful crowdfunded venture ever, by a significant margin." The space remains volatile. This decentralized autonomous organization (commonly referred to as the DAO), was soon hacked, leading to a crash in the value of the currency associated with the project.
Legal Innovation: Whistleblower Bounty Programs
Regulators struggle to monitor complex businesses. The financial markets may be particularly tough to police. One promising technique may be going beyond protection against retaliation by paying whistleblowers bounties for good information leading to significant enforcement actions. While the SEC's whistleblower program may be the most well known, states have begun to implement their own bounty programs. Indiana awarded $95,000 to a whistleblower earlier this month.
These programs and protections face some uncertainty. For example, it remains unclear how much protection against retaliation in-house counsel may have after reporting wrongdoing up the corporate ladder. Circuit courts have also split over whether Dodd-Frank's whistleblower protections even apply to whistleblowers reporting problems to their managers inside the company. It's also up in the air whether whistleblower retaliation claims will be resolved in court or in arbitration.
The area also gives rise to interesting stories. Ann Lipton recently covered the tale of an indignant Deutsche Bank whistleblower that attempted to turn down an eight million dollar award because he didn't want to penalize the good shareholders of Deutsche Bank for management's behavior. One quirk to the story is that a significant portion of the award would have gone to his ex wife.
I try to bring these developing areas into my courses whenever possible. It tends to generate more engagement. Whistleblower statutes fit nicely in business organizations when we talk about an agent's duty of loyalty. This time around, I plan to bring the unfolding DAO situation in when we discuss how businesses raise capital.
Tuesday, August 30, 2016
Now we know where John Roberts got the umpire analogy
Go to the 2:15 mark (start of the second chorus)
Guerilla Guides to Law Teaching
Guerilla Guides to Law Teaching is a new web-based course resource for incorporating social movements into law-school classes. It is produced by Amna Akbar (Ohio State), Sameer Ashar (UC-Irvine), Bill Quigley (Loyola-NO), and Jocelyn Simonson (Brooklyn). Here are the Four Principles for using this material in teaching.
Blinding and Bias in Law Hiring
This debate has turned into a larger one about trying to improve respect and even reduce bias in the classroom and has led to some really interesting conversations. Without fail, my male colleagues are shocked when I tell them that I routinely introduce myself as Professor Baughman and am in turn called “Shima.” They could never imagine a student not thinking their first name was professor even when they first started teaching. Even Volokh’s post acknowledges that though he asks students to call him Eugene, they don’t take him up on this offer. Could this possibly be because he's a white male (and also really famous)?
I actually remember wishing early on in teaching that I was white, much older, and a man. I still wish this sometimes when I speak at certain events. Obviously, I can’t do anything about that in teaching and presenting and luckily it has not presented a big obstacle in my career. But part of that is because at least some of what helps us achieve our success is done in a blind manner.
We receive our grades in law school blindly. The bar is graded blindly. And even now as a professor, my articles are submitted and judged (at least to some law reviews) presumably blindly (I say presumably because there is always a lot of doubt that the schools that claim blind judging of law review articles are truly doing this (fully) in a blind manner. I’m not entering that fray today).
But still a lot of what we do as lawyers and law professors is not done in a blind manner. I’ve written about this blinding issue with Sunita Sah and Chris Robertson in the context of prosecutors. We believe prosecutors should be blinded to the race of victims and defendants at the initial charging decision (before they actually meet defendant). Blinding has caught on in other fields. Just a few examples in our article: doctors blind the race of patients because that has biased their treatment in clinical experiments. Musicians often audition behind a screen so they are solely judged by their music and not their appearance—or gender or race. And so on. In our article we discuss the fact that in some tech job searches, companies have blinded the resumes from the reviewer to try to avoid any implicit bias in hiring. Why go through this trouble? Well, studies have demonstrated that we all have bias and even being aware of, or trained against this bias, does not help (and can in some contexts actually make it worse). I would argue, that whenever possible, we should at least consider blinding in decisionmaking.
Recently I spoke at a diversity panel hosted by a large law firm in Salt Lake City. The discussion centered around how we could create more diversity and reduce bias in hiring at big firms. But it is a live issue in legal academia, which is something more present on my mind since I am on the Appointments Committee at Utah. Obviously there is a lot that can be done on this front. One suggestion I brought up that I haven’t heard discussed is—what about blinding the initial screening committee at a firm or among an appointments committee to the names of the individuals applying (or other information that indicates their race or gender)? Could that possibly reduce bias? Could it avoid the famous resume bias documented in studies or even bias documented in hiring research assistants (where women and minorities with similar resumes received less offers? Or could it backfire because at least at some law schools (like ours) or firms, they are hoping for gender and racial diversity and look for these cues on resumes (Black Student Union, Women’s Law Forum, or simple race indicators on FAR forms.)? Is there any way to use blinding in legal hiring that would help decrease bias and increase diversity?
I do not have much to say about NFL (non-starting) quarterback Colin Kaepernick's decision to not stand for the national anthem, since those who read this space know that I support his right to do this, without equivocation. I am heartened to see the NFL and the 49ers are, thus far, allowing his protests--although see the parenthetical in the first sentence. We have come some distance from 1968 and even 1996, when the NBA suspended Mahmoud Abdul-Rauf for one game for refusing to stand.
As for the criticisms, it is more of the same--"you're rich and successful athlete, so you have nothing to complain about." (so one can engage in political expression only when it furthers one's own self-interest?); "the flag is special and you disrespect those who served in the military" (considered and rejected twice by SCOTUS, including by the sainted Justice Scalia); "find another way to do it" (why should someone be forced to sacrifice their best forum?)
Finally, it is beyond laughable that Donald Trump is running for President on an explicit platform that the country is circling the drain, especially for African-Americans, but that an African-American who protests because of the same belief should leave the country. So does that mean that if America does suck, your choices are 1) run for President, 2) leave, or 3) shut up and vote for Donald Trump? That is an odd vision of free speech. But not a surprising one, given the source.
The Night of Conclusion
I was a guest on New York Magazine's Vulture TV Podcast (begins at 30:00 mark) discussing the finale of The Night Of. Some additional comments (with spoilers) after the jump.1) I like the ambiguity of the ending, in which we do not really know who killed Andrea. Naz is not acquitted--it is an evenly split jury--but we do not see the end result of the investigation of Ray Halle, the suspect the show throws at us, for the first time, about midway through the finale. The truth is we never know what happened in many cases; the system makes its best guess using procedures designed to produce accurate results (albeit in an efficient and fair way).
2) I do not think the decision to continue the prosecution of Naz, even after learning about Halle, was wrong. And it certainly was not unethical. There was more evidence against Naz. The evidence against Halle was that he had motive, opportunity, and a connection to the victim--the same evidence as against the step-father and Duane Reade, although of a different nature and perhaps somewhat strong. The unforgivable sin was the prosecutor not disclosing that evidence, an obvious Brady violation. It is interesting that the show gives the prosecutor a heroic ending of sorts--she tanks the closing argument while having second thoughts, she declines to reprosecute, and she enlists Box to help her make a case against Halle. But her failure to disclose reflects a cardinal sin for a prosecutor, the most common type of prosecutorial misconduct and the source of many wrongful convictions. I wish the show had not downplayed that. And, as I said in the podcast discussion, she picked the worst of all possible ways to express her doubts--she did not dismiss the charges (a precipitous move, since I imagine jeopardy had attached, so if Halle turned out to be a dead-end, she was stuck) or disclose and let the jury hear the new evidence (and perhaps acquit). Her choice actually left Naz permanently in limbo.
3) Rule 404 does not exist in TV Land; there was more character and other-acts evidence flying around this week. Interestingly, however, some of it would have been admissible, although not for the reasons the show depicts. Some good exam hypos.
4) Trevor should have been able to plead the Fifth when asked about lying about being with Duane Reade. Wasn't he confessing to lying to police, which is a crime?
5) I did not think the decision to have Naz testify was wrong. It was poorly executed. He was unprepared for cross. And most of what came out on cross should have been presented on direct. The show presented an interesting divide over having the defendant testify. I imagine defense lawyers will say that the popular view is that an innocent defendant would take the stand and explain his side of the story and that the failure to testify is suspicious, despite the judge's charge. As presented through John, the show's theory is that, without testifying, the jury understands the defendant as wearing the "cloak of the presumption of innocence," but that if he testifies, his testimony must be strong enough to "prove his innocence." Meaning, presumably, that a defendant should never testify. In any event, his testimony is a disaster, which leads to . . .
6) I again cannot express strongly enough how turned off I was by the portrayal of women lawyers. The show destroyed Chandra's character--as always, in the service of enabling the male lawyer to emerge as the hero--in the most ludicrous ways. Several reviews have suggested the show reverse-engineered it--it needed John to be the hero, then just found the most ridiculous way to get there. Worse still, I am not sure its machinations were legally accurate. While unethical and grounds for bar discipline, I am not sure that kissing a client is grounds either for a mistrial, removal of the attorney, or forcing the attorney to yield her role as first chair. And all without asking the defendant his preferences, which should control. There is a case down here in which a defense attorney was accused of having full-on sex with her client in the interview room; she was temporarily barred from the jail, but she represented the client at trial.
There is a lot of talk about the awful portrayal of women on TV (think of some of the criticisms of Season One of True Detective). This show should be included in the discussion. Which is unfortunate, because it undermines an otherwise-good story.
Monday, August 29, 2016
The Missing Million Dollar Man
Financial self-regulatory organizations play an important role in investor protection. Like other institutions, they also have governance scandals. When Richard Grasso served as the head of the New York Stock Exchange from 1995 to 2003, he somehow managed to secure a eye-popping $140 million in special retirement compensation even though the NYSE was, at that time, a non-profit. Observers speculated that Grasso may have secured such a large payday for himself in part because of his influence over selecting his own compensation committee:
Many of the directors of the NYSE (including members of the Compensation Committee) were subject to regulation by Mr. Grasso himself, as chairman and CEO of the NYSE. During the periods relevant to the litigation, Mr. Grasso was authorized to appoint the members of the Compensation Committee (subject to board approval) and to select one of the members as the chairperson of the committee (the selection of the committee chairperson did not require board approval).
Given this history of governance problems at financial self-regulatory organizations, the SEC should vigilantly monitor this area. Unfortunately, that isn't what has happened. In 2012, the Government Accountability Office released a report finding that the SEC had “conducted limited or no oversight of . . . FINRA’s . . . governance and executive compensation.” FINRA itself does not disclose much information about the backgrounds of its public governors. In many instances it simply lists them as "retired."
In my last post, I shared how Robert W. Scully, one of FINRA's public governors, recently disappeared from FINRA's website and annual report. This former public governor now serves as a director on UBS's board (a large financial institution with brokerage businesses regulated by FINRA). Because the case of FINRA's mysterious disappearing public governor piqued my interest, I reached out to Sarah Haan, my favorite corporate election expert and figured a few more things out.
She helped me piece together that while Scully officially joined the UBS board on May 10, 2016, cause of concern may have arisen much earlier. For example, he was on the management's publicly announced "agenda" for the board on April 5, 2016. This raises questions about when he actually began discussions with UBS and when or whether he began to recuse himself from FINRA's board. Interestingly, a position as a UBS Director comes with significant compensation and offers "a average pay of $1.2 million per director . . . the highest pay of any company in the the Stoxx Europe 50." With this looming potential payday, disclosure and conflict management seem critical.
While this makes for a fascinating investigation, there is a bigger point here. Mr. Scully has a long history as an industry leader. He formerly served as a managing director at Lehman Brothers and the co-president of Morgan Stanley's asset management division. While he undoubtedly knows the industry well, it seems likely that the current selection process may favor persons with his background because the industry prefers to see familiar faces on the "public" side of the table. Is this the best way for public representatives to be selected?
Saturday, August 27, 2016
Defining terms and the U of C letter
Some of the problem surrounding the U of C letter is that we do not or cannot agree on terms. A commenter on my prior post on this argues that we are conflating content warnings with trigger warnings, because much of what we warn about is not actually "triggering" for trauma victims. An interesting point. Although i wonder if, at some level, we are quibbling semantics--the point comes to whether we must warn about something and whether that warning comes with some form of opt-out.
At Balkinization, Mark Graber posts a letter from a music professor at the University of Georgia (who happens to share his last name) arguing that intellectual safe spaces are essential to allow students to "speak, write, listen, challenge, and learn." But the letter defines safe spaces as ones in which students can present their ideas--even wrong or half-baked ones--without fear of reprisal from colleagues or professors. I agree with this conception. Of course, that is not what "safe space" has come to mean on campus and, at least I do not believe, it was not the conception the U of C letter was challenging or the conception that has been at the heart of most campus speech disputes.
Friday, August 26, 2016
Selecting the Public's Representatives in the Financial Regulatory Process
Financial regulations issued and enforced by the Financial Industry Regulatory Authority (FINRA) affect the public by setting the level of investor protection available. If things go awry, FINRA regulation also governs the rights the public has in industry-controlled arbitration.
Structurally, FINRA is a quasi-governmental organization that allows the industry to regulate itself under supervision from the SEC. While the industry elects a substantial number of FINRA's board members, its bylaws also call for the majority of the board to be "public" governors. The board's nominating committee, which includes industry-elected members, selects the "public" representatives.
This picking process has resulted in some surprising choices for public representatives. I took a close look at the current board and discovered some interesting things. According to one version of FINRA's annual report, Robert W. Scully served as one of the "public" board members as of June 15, 2016. In May 2016 he was elected to serve on the board of UBS--a major financial services firm. It struck me as odd that a public representative would concurrently serve on a financial service's firm's board. Interestingly, the contents of FINRA's previously issued annual report recently changed to omit Mr. Scully's name. His name was also scrubbed from FINRA's website. I am not aware of any information about when Mr. Scully actually stopped serving as a public representative on FINRA's board or when any discussions about joining the UBS board began. It may be that he promptly resigned as soon as he began to discuss joining UBS's board.
Susan Antilla at The Street reached out to FINRA for comment about the industry connections of FINRA's public board members. In her evaluation, the reality is that a majority of FINRA's board appears to have very close industry connections:
But by my count, only eight represent the public -- the result, in part, of the wide berth Finra allows for recent retirees from the finance industry to fill pubic seats. So if you're wondering why things don't always turn out so well for Mom and Pop when they entrust money to a broker, you might ponder the balance of power on Finra's board.
Is there a better way to pick public representatives? I give my idea after the jump.
The difficulty with the current process is that it may be particularly vulnerable to industry capture. If the nominating committee has five members, with three public members and two industry members, a single public member that votes with the industry members to select future board members can result in a radically different board. Of course, picking public representatives is a difficult task. We want people with sufficient sophistication to be effective but without the sort of entangling ties that might make them too tame.
I suggest we shift the appointment power for public representatives outside FINRA and to public processes. Perhaps public entities such as the Consumer Financial Protection Bureau, SEC, Department of Labor, and Treasury should nominate candidates. It's hard to say who would emerge from this process, but it seems like these agencies have a strong interest in FINRA's performance and would be able to select reasonably competent candidates that might not be as likely to be torn in different directions.
Consider Randal Quarles as an example of a public representative that might possibly feel pulled in different directions. Both versions of FINRA's 2015 annual report identify him as a public representative. The U.S. Chamber of Commerce also identifies him as one of its board members. The U.S. Chamber describes itself as "representing the interests of more than 3 million businesses of all sizes, sectors, and regions." While the business and public interests often align, concurrent board service raises questions about how to balance these interests if they conflict.
Thursday, August 25, 2016
More on the University Chicago letter
First, as I said in a comment on Rick's post, I always have understood trigger warnings as featuring an opt-out on top of the warning: "This is what this material is like and if you need to absent yourself from this material, you may." Consider this example of a content warning, from Angus Johnston, a history prof CUNY who took to Twitter to criticize UC:
At times this semester we will be discussing historical events that may be disturbing, even traumatizing, to some students. If you suspect that specific material is likely to be emotionally challenging for you, I’d be happy to discuss any concerns you may have before the subject comes up in class. Likewise, if you ever wish to discuss your personal reactions to course material with the class or with me individually afterwards, I welcome such discussions as an appropriate part of our classwork.
If you ever feel the need to step outside during a class discussion you may always do so without academic penalty. You will, however, be responsible for any material you miss. If you do leave the room for a significant time, please make arrangements to get notes from another student or see me individually to discuss the situation.
Like Rick, I have on occasion included a light heads-up on assignments (e.g., "This is a sexual harassment case and involves sexually explicit conduct"). I have never considered offering an opt-out. Interestingly, Johnston explains that he originally drafted the warning in reverse--the opt-out first and invitation to discuss second; he switched to lead with the discussion because it "centers dialogue — before, during, or after class — as central to the academic project."
Second, Johnston and The New Republic argued that the letter violates the academic freedom of those professors who wish to provide trigger warnings. This seems to me to over-read the letter. I read it as stating that the university would not provide official trigger warnings in its own programs and activities (e.g., no trigger warning when a controversial speaker comes to campus); that it would not officially designate campus spaces as "safe spaces" (e.g., the dorm is not a space where you are free of offense from what someone else says or has in his dorm room) (Kevin Drum agrees); and that it would not make trigger warnings official university policy. But the letter said nothing about what individual professors could, could not, or must do. A university spokesperson confirmed that "professors maintain broad latitude to engage in teaching practices as they see fit or to accommodate student requests."
This was not good enough for TNR; it insisted that the fact that trigger warnings are not banned "doesn’t get at the problem: the University administration is clearly making a stance on a pedagogical decision that has traditionally been left up to professors. That in itself constitutes a chilling effect and breach of academic freedom." But that is nonsense. A university can--and arguably should or even must--take a stance on many things, including pedagogy, without offending academic freedom. Academic freedom only demands that the university not prohibit or punish any professors who disagree or reject that stance. So academic freedom means the university should not fire the professor who writes a book denying the Shoah; it does not mean the university cannot make public statements that the professor is an idiot. Similarly, academic freedom means the university should not fire a professor for giving his students trigger warnings and opt-outs; it does not mean the university cannot make public statements rejecting trigger warnings as inconsistent with robust, free, and mature debate.
The University of Chicago letter regarding "free exchange of ideas"
You can see here (and all over the interwebs) a letter from the Dean of Students at the University of Chicago to that university's incoming first-year students. I wonder, have any law schools sent similar letters (or, letters covering the same issues) to incoming first-year law students? Should they? If so, what should they say?
For my own part, I do talk to students in Criminal Law, at several points during the semester, about the fact that the cases and materials we'll be reading do sometimes involve very difficult facts and that the materials and the questions they raise could very well be, for a variety of reasons, painful to read. I urge respectful conversation and argument, but also invite students to speak with me if they have any concerns about talking in class about particular materials or about attending class on a particular day. This kind of thing doesn't strike me as a "trigger warning," but maybe I'm misunderstanding what is meant, in the Chicago letter or generally, by that term.
A Clearinghouse for Questions, 2016-2017
In this comment thread to this post, you can ask questions about the law teaching market, and professors or others can weigh in.
Both questions and answers can be anonymous, but I will delete pure nastiness, irrelevance, and misinformation. If you see something that you know to be wrong, please feel free to let me know via email, sarah*dot*lawsky*at*law*dot*northwestern*dot*edu.
We have a different thread in which candidates or professors can report callbacks, offers, and acceptances. That thread should be used only for information relevant to hiring, not for questions or comments on the process. This is the thread for questions.
Here is a link to the last page of comments.
Originally posted August 25, 2016.
Law School Hiring, 2016-2017, Thread One
Those on the market are invited to leave comments on this thread regarding whether they have received:
(a) a first round interview at a school (including the subject areas the school mentioned, if any, as being of particular interest, and whether the interview offer was accepted);
(b) a callback from a law school and/or accepted it; or
(c) an offer from a law school and/or accepted it; feel free to also leave details about the offer, including teaching load, research leave, etc. A school listed as "offer accepted" may have made more than one offer and may still have some slots open.
Law professors may also choose to provide information that is relevant to the entry-level market.
Four miscellaneous things:
1. If you don't want your contact information displayed, enter firstname.lastname@example.org or something like that as an email address.
2. There is a separate thread, "A Clearinghouse for Questions," for general questions or comments about the teaching market. Please do not use the thread below for general questions or comments. (Such comments will be deleted, not out of hostility or in a judgy way, just to keep this thread focused.)
4. Finally, in each of the previous years, someone who is on the market has volunteered to aggregate the information on a spreadsheet. If you would like to volunteer, please contact me directly at sarah *dot* lawsky *at* law *dot* northwestern *dot* edu, and I will get you set up.
Update: No aggregator this year; instead, anyone can edit the spreadsheet. It is available here:
Here is a link to the last page of comments.
Update: You can also add your information via this Google form, which was created by someone on the market this year.
Originally posted August 25, 2016; updated September 1, 2016, to add spreadsheet, and September 16, 2016, to add the link to the Google form.
Wednesday, August 24, 2016
Sound Symbolism, Trademarks, and Consumer Experience
A recent tweet from Ed Timberlake brought a new study to my attention. According to the authors of the study, beer tastes better when paired with the right music. (It also works with chocolate, among other foods). Possible applications include pairing a six-pack of beer with an mp3 for a curated listening experience.
This connection between hearing and taste reminded me of another line of research I recently mined for my article, Are Trademarks Ever Fanciful? (105 Georgetown L.J., forthcoming 2017). Trademark law presumes that when a word is coined for use as a trademark (like XEROX for photocopiers or SWIFFER for dust mops) the word can't carry any product signifying meaning, so it must be inherently source signifying. That presumption about coined words is not entirely true. In fact, there is a significant body of research into sound symbolism that indicates many sounds carry meaning independent of the words to which they belong. This is true for consonants and vowels, and true even if the word at issue is a nonsense word (like XEROX or SWIFFER).
Courts haven't realized that sounds convey meaning in this way. This is unsurprising because most consumers don't realize it either. But marketers know, and they spend a significant amount of time trying to craft marks that take advantage of sound symbols. In light of this research, the presumption that a fanciful (coined) mark is entitled to instant and broad protection may require some rethinking.
I'm excited to hear your observations about sound symbols and trademarks, or your favorite food/beverage and music pairings, in the comments below.
Hear, hear--Blogging Edition
Update: One more on where blogs have gone over their fifteen years of life.
Tuesday, August 23, 2016
Inside the agency class action
A quick flag for a new article from Michael Sant’Ambrogio (Michigan State) & past-guest Adam Zimmerman (Loyola-LA), Inside the Agency Class Action. This piece builds on some posts Adam wrote here, as well as some reports by the Administrative Conference of the US that Sergio Campos wrote about for JOTWELL.
University of Alabama School of Law: Hiring Notices
We have several potential openings at the University of Alabama School of Law this year, in both the "doctrinal" and "clinical" areas, and my colleagues have asked me to post notices for them. Here goes:
1) THE UNIVERSITY OF ALABAMA SCHOOL OF LAW seeks to fill entry-level/junior-lateral tenure-track positions for the 2017-2018 academic year. Candidates must have outstanding academic credentials, including a J.D. from an accredited law school or an equivalent degree (such as a Ph.D. in a related field). Entry-level candidates should demonstrate potential for strong teaching and scholarship; junior-lateral candidates should have an established record of excellent teaching and distinguished scholarship. Although positions are not necessarily limited by subject, applications from those who study and teach commercial law (including contracts and sales) or torts (including products liability) are especially welcome; business law, family law, and insurance law are also areas of interest. We welcome applications from candidates who approach scholarship from a variety of perspectives and methods (including quantitative or qualitative empiricism, formal mode ling, or historical or philosophical analysis). The University of Alabama embraces diversity in its faculty, students, and staff, and we welcome applications from those who would add to the diversity of our academic community. Salary, benefits, and research support will be nationally competitive. All applications are confidential to the extent permitted by state and federal law, and interested applicants should apply at facultyjobs.ua.edu; the positions remain open until filled. Questions should be directed to Professor Heather Elliott, Chair of the Faculty Appointments Committee (email@example.com). The University of Alabama is an Equal Employment/Equal Educational Opportunity Institution. All qualified applicants will receive consideration for employment without regard to race, color, religion, national origin, sex, sexual orientation, gender identity, gender expression, age, genetic information, disability, or protected veteran status, and will not be discriminated against because of their protected status. Applicants to and employees of this institution are protected under federal law from discrimination on several bases. Follow this link to find out more: “EEO is the Law” www1.eeoc.gov/employers/upload/eeoc_self_print_poster.pdf.
2) Assistant/Associate Professor--Director Elder Law Clinic:
The Night Of (Updated)
I have been enjoying HBO's The Night Of, despite my general distaste for legal fiction. The acting and writing have been great and the show has presented a unique tone.
Some comments (with spoilers, for those of you who are not caught up) after the jump.Two big evidentiary issues came up in the last episode: Naz's assaults of two high school classmates and his selling Adderall to college classmates. The first seems impermissible--we have not seen any indication that the defense has offered evidence of Naz as a non-violent person or that he was acting in self-defense, so the door has not been opened for the prosecution to offer character evidence, nor do these incidents have any non-character connection to the murder at issue. The second seemed impermissible while I was watching it, just more evidence to show he is a bad person (and through specific instances of conduct on direct, no less). But I think this could come in as preparation or plan--that the drugs they took (which explains why he blacked out or cannot remember his actions) were provided by him, not the victim.
Financial advisers may want to protect their client's confidentiality, but the law does not accord them a privilege akin to that between an attorney and her client. Just subpoena the guy.
Finally, and unfortunately, the show again falls into the trap described by Paul Bergman and Michael Asimow in their book Reel Justice: "Almost without exception, trial movies present women lawyers in viciously stereotypical terms. It's almost as if filmmakers are scared stiff of powerful, successful women." The show fell down this hole on Sunday by having Chandra, the young female lawyer, make-out with Naz--on surveillance camera, no less, and for no discernible reason. The show had shown her as a competent and serious, if new and overwhelmed, lawyer rising (somewhat) to the occasion. Why would she throw that all away and what is served by undermining the character like that? Narratively, I suppose the goal is to force John Stone to step-in as first chair, completing his redemption story and, perhaps, getting Naz off the hook?. But why must it be at the cost of the female attorney destroying her career? And, come to think of it, Chandra is not the only example in the show. Allison Crowe, Naz's second lawyer, is shown as a media hound who behaves unethically in a number of ways--in stealing Naz as a client (without speaking to Naz himself), in insulting John in open court, in jacking up her price (from pro bono to costly) when he did not do what she wanted, and then in dropping Naz as a client (without informing the court) by telling him, basically, "fuck off." I overlooked it at the time because she was supposed to be the bad guy in that part of the story, an antagonist to John. But now, in light of the development with Chandra, it seems to be a broader problem in how women lawyers are presented--another example of Bergman and Asimow's thesis.
Update: I should say something about the female prosecutor, who been no great shakes, including telling a witness what to say. Interestingly, though, the attitude towards her seems to be that she is a world-weary part of a machine that continues of its own force once it gets rolling. Mostly, she is depicted as a typical prosecutor, putting the most-favorable spin on ambiguous evidence. This is how the adversary system is supposed to work.
Monday, August 22, 2016
Research Assistants and Comment Letters
In the best case scenario, both faculty and students benefit from research assistant positions. From the faculty perspective, I want to take on a research assistant if it will allow me to accomplish more than I would alone. If I could do the work by myself in less time, an assistant may be more of a burden than a benefit. From the student's perspective, the relationship also needs to yield some benefit, perhaps a letter of recommendation or a more polished writing sample than they would have produced otherwise. Finding the right assistant and mix of tasks to delegate makes the process work.
Putting a research assistant in charge of drafting a short comment letter under their own name on pending agency rule-making has worked well for me and allowed the assistant to get some genuine ownership over a project. Because the comment letter will be publicly filed, the assistant has a strong interest in producing quality work and researching the area. It also creates a unique writing sample that gives the student something to talk about when searching for a position. On some occasions, students have reported that their interviews focused around their comment letter. It may also help get students in the door by allowing them to demonstrate genuine interest in an area. After talking about how we've used comment letters in the past at the Transactional Law Conference, Nicole Iannarone and I put together a small piece talking about our experiences working with students on comment letters. Of course, it's not always roses. If an assistant isn't up to the task, you've got to spike the project to prevent them from filing a bad letter.
Supporting a research assistant through comment letter process yields some benefits for faculty as well. It helps to set the tone for what good work should look like. The assistant may also work harder for you on other projects that don't advance their career in the same way because you've taken some time to invest in a project that helps them. Plus, it keeps your eye on the other comment letters being filed and may give you insights you wouldn't have had otherwise. When you ask them to look at related issues to support your research, the project has built some foundation to allow them to do better work. On the whole, I've had good experiences with it. Are there other projects that work well to generate the same kind of engagement?
Saturday, August 20, 2016
Baseline Hell and the Religion Clauses
Perhaps because religions have a special interest in the diabolical, the fires of baseline hell seem to burn particularly hot in the context the Religion clauses. As I noted years ago, "baseline hell" refers to the futility of arguing about whether some burden is the imposition of a "penalty" or the withholding of a special "benefit" in the absence of a theory of distributive justice. As a salient recent example of baseline hell, one need look no further than the recent debates over whether employers' immunities' from the so-called Contraception Mandate impose a "harm" on employees or protect employers from the constitutional "harm" of being dragooned into violating their conscience. The answer, of course, is "both or either, depending on how one defines the relevant baselines." The contestants nevertheless draw on ideas of "harm"" and "coercion" as if these bare words will settle their fight absent a consensus about how to measure baselines -- a consensus in short supply, especially in the weird twilight zone between the public and private that is the "private" workplace.
Consider, for instance, Mark Gedicks' and Rebecca van Tassell's argument that, because RFRA as construed by Hobby Lobby deprives female employees of a statutory benefit, it "harms" them and thereby constitutes an unconstitutional accommodation of regulation. Gedicks' and Van Tassell's argument turns on a particular choice of status quo baselines under which loss of a statutory right that existed before judicial enforcement of the religious accommodation constitutes a "harm" forbidden by the Establishment clause. One does not need to be an ultra-Crit to see that status quo baselines are not the only criterion available by which to assess whether a loss is a "harm." Why not instead use a predictive baseline that asks whether the entitlement conditioned by a religious accommodation would exist at all absent that accommodation? (Einer Elhauge has a nice recent formulation of predictive baselines that one could use to fine-tune the analysis). Such an inquiry would require one to ask whether the Mikulski Amendment that forms the statutory basis for ACA's Contraception Mandate would have been enacted had it carved out an exception to RFRA for contraception and other medical procedures that might offend employers' religious scruples. Given that the Mikulski Amendment was silent about contraception and RFRA, it is difficult to say for sure, but the firestorm of controversy over the Stupak-Pitt Amendment suggests that critical Blue Dog votes might have jumped ship had ACA expressly attempted to waive RFRA entitlements, dooming the entire legislation. (Indeed, the prospect of such ship-jumping might explain the Mikulski Amendment's coyness about mentioning contraception and focusing instead on "preventative tests" like mammograms).
There is a perfectly plausible argument, in short, that, far from depriving female employees of an employment benefit, the preservation of RFRA's protection for employers was the necessary price for the ACA's passage. If so, where's the "harm" from a limit on a statutory right that exist only because that limit was not repealed? I do not endorse either predictive baselines in general or their particular application to ACA and RFRA. I note only that trying to distinguish between permissible and forbidden accommodations by invoking notions like "harm" invites a Critical response for which I see no easy rejoinder. As I argue elsewhere, the same complaints can be registered against the Eisgruber-Sager "Equal Liberty" baseline (defining religious entitlements by what "relevantly similar" non-religious actors receive) or the Laycock "Substantive Neutrality" baseline (defining religious neutrality by whether a religious exemption increases the attractiveness of the religion to non-believers more than the absence of that exemption deters religious practice).
Welcome to Baseline Hell! I would suggest that route to the exit door is some form of decentralization that sends these baseline fights to subnational governments -- but that's a subject for a different post.
Friday, August 19, 2016
More Retirement Plan Lawsuits
An increasing number of universities may soon be facing lawsuits alleging retirement plan mismanagement. Since my last post, the list of universities currently facing lawsuits has grown to include Columbia, Cornell, Northwestern University, Yale, M.I.T., NYU, Emory, Johns Hopkins, Vanderbilt, the University of Pennsylvania, Duke, and the University of Southern California. The lawsuits often allege that plans contained overpriced options that consistently performed below benchmarks.
Some faculty have even started reaching out to Jerry Schlicter, the attorney behind the suits, for assistance reviewing their retirement plans. One interesting contention is that universities that provide faculty with the option to select between different retirement plan providers may breach their duties by not consolidating and using the larger asset pool to negotiate lower fees:
Some suits also allege that universities cost employees by using multiple companies as retirement plan providers, or record keepers. An institution can negotiate lower fees by consolidating to one record keeper, increasing its bargaining power, the suits argue.
From a practical perspective, having multiple 403(b) plan providers or record keepers unlikely to yield any worthwhile benefit. It also seems that giving more "choices" in this context may drive increased costs for all faculty.
On reaching "adulthood" in law teaching
Our new first-years are being "oriented" today, and it hit me that this is the 18th time that's happened since I started law teaching. So, I guess that means I get to vote, or get drafted, or rent a car (but not drink) in law-teaching land. (It also hit me that I've been teaching longer than some of the new undergraduates who are moving in this weekend have been alive, but that's too much to take in . . ..) I'm not sure what this milestone means with respect to, for example, the conversation about what students should call professors (I'm pulling for "eminencia"!) -- but I'm pretty sure it means that all "Seinfeld" references (and, who are we kidding?, "Sopranos" references too) have to be shelved.
Have a great semester, everyone!
Thursday, August 18, 2016
Number of FAR Forms in First Distribution Over Time - 2016
The first distribution of the FAR AALS forms came out this week. Here are the number of FAR forms in the first distribution for each year since 2009.
(All information obtained from various blog posts, blog comments, and Facebook postings over the years and not independently verified. If you have more accurate information, please post it in the comments and I will update accordingly.)
Edited 8/18/16, 10:06p, to correct number to 382 forms.
Advice (and Myths) for 1Ls
I was recently asked to give the faculty welcome to our new 1L students at the University of Utah. I used my time to give them some general advice and perspective about law school. I made them laugh a little, hopefully calmed their nerves, and none of them walked out. So I consider it a success.
If I had had more time, I would have shared some more specific advice that I don’t think is shared very often. I think often law students approach other law students for advice. That is great, but why not us, Prawfs? After all we have not only gone through law school (and done well there), but we have interacted with law students every semester and watched what works and what doesn’t.
So below I share some “myths” of 1L year that I think are commonly heard but misguided, intermixed with some advice.
Law School Myths:
- Brief every case for every class carefully for the entire first semester or year.
I disagree. I think briefing cases may be helpful for the first few weeks of law school in understanding how to read a case. But in law school—just like in undergrad—preparing well for class is about listening to the questions your professor asks and being prepared with those answers. Different professors focus on different things in class and it is best to read and try to understand the material and then try to learn what your professor is most interested in when he or she calls on you in class. Rather than spending a lot of time perfecting the reading each day, spend time at the end of each week trying to figure out what legal principles came out of the week and practice applying them.
- Join every student group and a journal and moot court and trial advocacy (the more the better) and stick with them throughout law school.
Both of these are really terrible pieces of advice. I think student leadership, journals, moot court, and trial advocacy can all be really great experiences in law school. In fact, some of the best. But I see way too many students becoming over-extended and trying to do ALL of the above. Somewhere they learned that for instance if you do one year of trial advocacy, and then focus on law review for the rest of law school, that that means you are a quitter. I disagree again. I think employers are not the least bit disappointed to see a law student who is focused. It is great to just excel at one thing in law school—whether it be law review, moot court or trial advocacy. The key with these extra activities is the commitment and excellence—so quality, not quantity, is most important.
- Study, study, study all day, e’ry day.
Really bad and unsustainable advice. The law semester is around 4 months long. If you are maintaining a “study all day until night ” attitude for this entire time, you will certainly burn out for the time it all really matters. One thing that law students forget is that you have a few grades in law school and usually they come with your final exam (though some professors will have a midterm or a couple papers). The majority of your grade though, will typically come with your final exam, so why not keep a regular study routine through the semester (which I think should include some weekend outline time—maybe a couple of hours) and then step it up during the last few weeks before finals? And yes, during the last three weeks before finals, I think it is stupid not to study, study, study, all day, e’ry day. This is the period where I am really confused when my law students plan weekend trips, take the day to ski or plan student parties. Nope. If you had saved some stamina you should have gotten that fun stuff over with early in the semester and freed your social calendar for studying the last 3-4 weeks of the semester.
- Take all of the classes you think sound interesting.
I got this advice and took it to the bank. Very bad idea. Instead of taking some really important bar classes (evidence, criminal procedure, securities, wills and trusts), I chose to take the classes that interested me during law school. I really enjoyed law school and had a great time but I had huge gaps in my knowledge when it came to taking the bar and even with my pro bono work after the bar. The “core” law school classes are core for a reason. Look at the list your law school provides you and try to take at least some of those classes. Honestly, if you barely squeaked into law school and have a low LSAT score (not that anyone else knows that now), I would take as many of the bar classes as you can. You will need every advantage you can get to pass the bar.
- Find the easiest professors and take all of their classes
I don’t think this is advice anyone actually tells law students (at least not publicly) but I think they often do it anyway. It is a bad idea. Take classes that challenge you. Take as many writing or drafting classes as you can. Learn corporate finance and intellectual property law and securities regulations. You are paying a lot of money to get a professional degree, which indicates that you have some important skills. Why sell yourself short? Be wise in your selection of non-core classes.
As usual, I would love to hear your thoughts. Do you agree that these are myths? Any other myths or advice for 1Ls?
Wednesday, August 17, 2016
JOTWELL: Steinberg on lawyers and strategic expertise
The new Courts Law essay comes from guest contributor Jessica Steinberg (George Washington), reviewing Colleen F. Shanahan, Anna E. Carpenter & Alyx Mark, Lawyers, Power, and Strategic Expertise (Denv. L. Rev.) (forthcoming), an empirical study of when and why having counsel matters in civil litigation.
More sports rules and perverse incentives
Good stories in Slate and NY Mag about the zero-tolerance false-start rules in Olympic track, under which a racer is disqualified if he false-starts. This is the third version of the Olympic rule. Pre-2003, each runner was allowed one false start and was disqualified only on the second. In 2003, the rule was changed to give the entire field one false start, with a DQ imposed on whoever does the second false start. The current rule was enacted in 2010, making this the second Olympic games under that rule; we have seen two DQs this week, although not by any favorites. Usain Bolt wass DQ'd under the rule at the 2011 World Championships, the only Olympic or world championship final he has lost since 2008. French hurdler Wilhem Belocian was DQd earlier this week and was seen falling to the track in tears, but he had qualified seventh out of eight runners.
The 2010 rule change was designed, at least in part, to eliminate perverse incentives. Slower runners would intentionally false start, using up the "freebie" for the field. This forced faster starters and runners to be a bit more cautious, and thus to hesitate just a bit off the blocks, lest they pick up that second false start that would disqualify them. The new rule eliminates the intentional false start by eliminating the benefit, and thus the incentive, for the slower runner to do this.
This sounds a bit like the logic behind the Infield Fly Rule: 1) Runners were gaining a potentially big advantage (slowing down the fast starters/runners) through the intentional false start; 2) The faster runners could not really counter this move, except perhaps by not false-starting following the intentional freebie; 3) slow runners were intentionally acting contrary to expectations (you do not want to false start); and 4) the advantage offered a perverse incentive to the slower runners to intentionally false-start (although not a great one--the trick did not work very often). The second prong is weak--the faster runners could counter the strategy by not false-starting, something they could do more easily than runners can avoid a double play on an uncaught infield fly. But this is an interesting comparable situation that is worth including in my discussion of similarly justified rules in other sports. [Update: On further thought, that second prong is not weak and this is precisely the same as the I/F/R situation. The only way to counter the intentional false start was for the faster runner to slow down his start--but that is precisely what the false-starter wants]
This situation shows the role that aesthetics play in creating sports rules. Rulemakers could have disincentived intentional false starts by returning to the old rule of giving every runner one freebie. But that old rule created problems of multiple false starts by multiple runners, causing long delays, fan boredom, and television overruns. So the new rule, while harsher, is aesthetically favorable to the sport.
Finally, runners and rulemakers have minimized the effect of the harsh rule. All runners slow down their starts a bit to avoid the risk--Bolt, never a fast starter, has slowed his start even more, relying on his remarkable ability to dominate the last 30-40 meters (as he did in winning gold in the 100m this week). And the rulemakers narrowed what qualifies as a false start to exclude flinches and twitches, so a runner false-starts only if his feet leave the starting blocks or his hands leave the track.
Tuesday, August 16, 2016
A call to action for civil justice reform
The following is by Linda Sandstrom Simard (Suffolk Law), who was a member of the Civil Justice Improvements Committee discussed in the post. These comments represent her own thoughts and opinions, not those of the Committee.
This summer the Conference of Chief Justices (“CCJ”), an association comprised of the chief justices of all of the state supreme courts, strongly endorsed the Call to Action and Recommendations of the Civil Justice Improvements Committee. Talk of civil justice reform is ubiquitous, but the CCJ endorsement of these Recommendations offers more than a glimmer of hope that key stakeholders in state courts around the country are ready to take serious action. The Report offers a comprehensive view of civil litigation in state courts and concludes that our legal system is too often not living up to the promise of a just, speedy, and inexpensive resolution of civil cases. The Report makes a series of evidence-based recommendations that seek to protect access to justice and restore faith in the civil justice system.
Following is a brief description of the Report and my thoughts on the likelihood that the Report will engender reform.
In 2013, the CCJ established the Civil Justice Improvements Committee. The Committee, comprised of state court leaders from the bench, bar and academia, undertook two years of intensive deliberations, reviewing data from pilot projects around the country, implemented rule changes, empirical research, and stakeholder input. Based upon this research, the Committee found that: (1) over the last several decades there has been a dramatic rise in self represented litigants, with more 75% of civil cases involving at least one party who is self-represented; (2) high-value tort and commercial contract disputes comprise a small proportion of civil caseloads; (3) the vast majority of civil cases are debt collection, landlord/tenant, mortgage foreclosures, and small claims cases involving relatively modest monetary claims; (4) in many instances, the cost of litigating a case through trial exceeds the monetary value of the case; (5) the vast majority of civil cases are disposed of without adjudication on the merits; and (6) some litigants with meritorious claims and defenses are effectively denied access to justice because they cannot afford to engage in litigation, and those litigants with adequate resources frequently opt for private alternative dispute resolution. If action is not taken, these findings suggest that our civil justice system is in serious jeopardy.
The CJI Committee’s Recommendations are premised upon the notion that transsubstantive procedure, or “one size fits all,” is not a sustainable model for the future. Complex cases involving an abundance of disputed issues of law and fact require more procedure than streamlined cases involving few contested issues. The Committee’s Recommendations suggest that courts must manage civil cases by assigning each case to a case management pathway that provides the amount of judicial attention needed to resolve the disputed issues in a just, timely, and cost-effective manner. The responsibility for effective case management must be shouldered by the entire court staff, not just the trial judge, along with cooperative lawyers and parties. Innovative uses of technology are highly encouraged as a means to meet the enhanced demands of “right sized” case management. The Report makes special reference to recommendations that address the unique demands of cases that involve asymmetrical legal expertise. Overall, these Recommendations seek to restore faith in the civil justice system by reducing cost and enhancing fairness and efficiency.
I believe there is reason to be optimistic about these Recommendations. At its core, the CJI Report endorses the concept of proportionality. Unlike the Federal Rules of Civil Procedure that require judges to make individualized determinations of proportionality for every discovery dispute, the CJI Report identifies procedural pathways that help courts to know which cases are likely to require substantial focused judicial attention and which cases are likely to need less judicial attention. Since state civil case loads are much larger than their federal counterparts, this modified version of proportionality is pragmatic and efficient. The Recommendations also recognize the need for flexibility in pathway assignments and encourage courts to reassign cases if presented with reasons why a pathway is inappropriate. The fact that these Recommendations coincide with the tenor of the recent amendments to the Federal Rules of Civil Procedure suggests that momentum may be growing for significant civil justice reform to take hold.
Of course, this is not to say that change will be easy. Implementing the Recommendations will require substantial judicial resources. Court personnel will need training to meet the enhanced demands of case management, and judicial training programs will be necessary for newly appointed judges as well as experienced judges who may need to change deeply rooted habits. Structural changes may also need to be considered. For example, judicial rotations, short terms of office and frequent elections are likely to complicate case management efforts and hinder efficiency. Finally, cultural change will be crucial. Litigation strategies that rely upon expertise and judgment, as opposed to routine reliance upon boilerplate discovery requests or vague and meaningless discovery responses, will enable lawyers to resolve disputed issues of law and fact efficiently. If we can meet these challenges, I believe implementation of the CJI Recommendations will be a significant step forward for civil justice in this country.
What Should Students Call Professors?
A decision that many of us make early on (or sometimes change later) in teaching is what to have students call us: “Professor X,” or our first name, or by some sort of nickname. Or this may organically evolve. I’ve gone from being called Professor Baradaran to most often, “Shima” in the last 6 years, but not by choice. I introduce myself every year in class as “Professor Baughman” pronounce it and sign all of my emails “Prof. B”, but still somehow, I am referred to as “Shima” by a large number of students. I understand that I went from one hard to pronounce last name (Baradaran) to another (Baughman) when I got married, but I don’t think that’s the problem here. I’ve spoken to several colleagues and they have experienced frustration with this nonconsensual first-name calling as well. I believe that students call me by my first name because there is a growing movement by professors to allow students to call them by their first name, both in undergrad and in law school.
I wonder what percentage of law professors encourage or allow students to call them by their first name and whether this is a good move. I tend to think that it is not a good development. Here are a couple reasons why:
- Call one professor “Frank”, call them all “Frank.” Some of us prawfs want to keep work life separate from casual life and having a title at work, helps us do that. Some of us feel like we have earned the title of Professor, and feel cool when our students call us that. Others are young (or look young), and the title of Professor may be the only separation they have to distinguish them from their students. Whatever it is, I think that this should be an individual choice that the professor makes. Maybe this can be avoided if professors who like to be called by their first names, warn students that they should not assume that other professors like this and to always ask in advance.
- The Classic Slippery Slope Argument. As far as I understand it, some law firms and definitely judicial chambers are places where judges or partners may not like to assume that interns or new associates or clerks treat them casually. I worry that calling professors by their first name in law school, may lead to false expectation that this is how it is in the legal profession. I actually think the legal profession is one of the few remaining professions where there is a sense of formality in our practice of law. We have to address judges by a certain title (or they will correct you at oral argument), we have to carefully include exact language, color, and formatting on briefs or they are rejected, addressing of opposing counsel and often clients often has to do this by their full name and title. And I believe an awkward situation may arise where a student may call his judge by her first name and it may be seen as a sign of disrespect (And unfortunately, serving on the Judicial Clerkship Committee I have heard these horror stories actually happening). Are we communicating these norms to our students? I worry about this given the growing casual nature of law teaching.
- Casual Nature of Law School. I have noticed in my time teaching that students are getting more casual at law school every year. Where in my first year of teaching, hardly anyone entered the classroom late, brought snacks to eat during class, or wore sweatpants or pajamas to class, these are now regular occurrences. Students have called me on my cell phone regularly (I’m not sure how they have obtained this number) and two students asked me if I could Skype their study group before one of my finals since they had a few extra questions and email responses just didn’t suffice. I regularly am asked if I can review a student’s 40+ page outline to see if there are any mistakes. These are requests I would never have made in law school even if I was paid a large amount of money. I worry that students have an extremely casual view of their professors and calling them by their first names may be exacerbating what I think is an already bigger issue of casual Millennials and respect.
But, trying to see this from the other side, the argument for having students call prawfs by their first name, I can understand. Prawfs want students to feel comfortable (especially possibly some nervous 1Ls) and feel that being on a first name basis provides that. This is also on trend with law schools having more mixers between students and professors and inviting students over to professors’ homes for social events to allow more natural interaction. For some it may be an equity thing—I call you by your first name to call on you, so you can call me by my first name. Finally, I totally understand the argument that these are professional students who have often worked in the business world and professors don’t need to artificially place themselves in a superior position to them.
Still, though, I believe the arguments against what I see as a new development among prawfs are stronger. What do you all think? Also, do you think this is a bigger problem for female professors? Minorities? Or younger professors? Or is it pretty universal?
Trinity Lutheran Church v. Pauley and the Case for Decentralizing Religious and Secular Accommodations
As I argue in a book chapter, I am a fan of decentralizing to subnational governments disputes over what I call “RADDs” – that is, “reasonable and deep disagreements.” A RADD is potent and divisive cocktail created by mixing two explosive ingredients – first, a reasonable dispute over a baseline of entitlement and, second, an intense conviction that the dispute touches on one’s identity as a member of an ethnocultural group. I believe that it is prudent to decentralize fights over RADDs because the absence of any common baselines – that is, the absence of a social and legal consensus defining who owns what -- make RADDs simultaneously irresolvable and viciously divisive. Because each side believes that it is playing defense against an invading enemy intent on cultural hegemony, battles over RADDs are treated by contestants as existential threats, inspiring an endless culture war in which the contestants generate acrimony that poisons ordinary politics. To defuse such battles, one can lower the stakes by delegating the resolution of RADDs to subnational governments in a way that allows each side’s reasonable view to prevail in some subnational jurisdictions. Federalism is the Westphalian solution to our Thirty Years (and counting) Culture Wars.
If you share my taste for defusing RADDs with a decentralizing fix, then there is no more important precedent than Locke v. Davey, the SCOTUS’s 2004 precedent that permitted but did not require Washington State to exclude a student seeking a devotional theology degree from receiving funding from the State’s otherwise-inclusive scholarship aid program. Locke is the federalism complement to Zelman v. Simmons-Harris, in which the Court permitted but did not require parents to use otherwise-available state-funded vouchers at religious schools. Both cases expand the scope of states’ power to define what one might call “secular accommodations” – that is, the accommodation of one’s desire not to be forced to contribute one’s tax dollars to the support of someone else’s religion. Zelman allows states to dispense with such accommodations; Locke allows states to provide such accommodations. The Court’s allowing both such approaches could be understood as a meta-accommodation that allows different jurisdictions’ rival views about secular accommodations to co-exist. I suggest that such a meta-accommodation through federalism best shows equal concern and respect for the RADD over whether or not a religious school should be prohibited from receiving, or entitled to receive, state aid. There are equally reasonable legal and political traditions in favor of both positions. Why not let each rule the roost somewhere?
Trinity Lutheran Church v. Pauley, a Free Exercise case to be argued before SCOTUS in the upcoming term, threatens to undo Locke. (With a 4-4 Court, the threat is admittedly weak). At issue in Trinity is Missouri’s state constitutional provision providing that “no money shall ever be taken from the public treasury, directly or indirectly, in aid of any church, section or denomination of religion.” Trinity Lutheran Church runs a school that wants assistance from an otherwise secular and neutral state funding program to re-surface its playground with ground-up tires. That state constitutional limit has been held to bar the aid, singling out a religious institution for a limit on state aid from which secular institutions are free.
Rick Garnett, my co-blogger and friend, would have the Court eat away at Locke by enforcing a nationally uniform rule of neutrality barring Missouri from discriminating against religious institutions in paving playgrounds with tires unless such discrimination is required by the Establishment clause. After the jump, I will argue why I think that this bid to resolve the RADDs with a nationally uniform rule cannot end well for either side.
For religiously minded persons seeking equal access to government benefits, Rick’s neutrality-based approach will seem like a simple and satisfying way to define Free Exercise rights -- until one applies it to religious organizations’ special exemptions from governmental burdens. If the neutrality approach were adopted across the board, then religious organizations would lose far more than they would gain. Of course, there are plausible arguments that allowing special treatment in favor of religious actions and organizations is more firmly ensconced in our constitutional text and traditions than allowing special burdens on religion. But this sort of fine-grained doctrinal argument tends to be most convincing to those already convinced: It cannot be the basis for a social truce between the friends and enemies of faith. Against precedents favoring special religious accommodations, one can, after all, invoke Estate of Thornton v Calder and Texas Monthly v. Bullock decrying them. Against precedents requiring religious organizations to receive equal access to state-funded benefits, there are all of those Lemon-Era precedents requiring exactly the opposite.
One can always argue, as does Rick, that the old Lemon line “reflected a way of thinking about aid to religious schools that [SCOTUS has], for good reasons, abandoned” in favor of an emphasis on “neutrality” rather than “strict separation.” But those reasons often seem good only to the religious side of the culture war. The aspiring Lemonite might say that he who lives by overruling former lines of precedent dies by the same sword: Why cannot a new Clinton-appointed Court abandon Zelman just as easily as the Rehnquist Court has semi-tossed Lemon? The battle over the “correct” theory of accommodations is like a judicial Game of Thrones in which one dynasty of doctrine supplants another only to be supplanted in turn as the Court’s membership shifts. Why not instead call a truce to this doctrinal churn, acknowledging that both sides have a position within the pale of respectability for which each state ought to be able to opt?
One might respond that Missouri’s discrimination against religious schools is a product of specifically anti-Catholic prejudice outside that respectable pale. As Rick notes, Missouri’s constitutional ban has its 19th century origins in “pervasive anti-Catholicism and nativism,” hardly an ideology that fits within today’s standards of religious equality. True enough, but the question that SCOTUS will eventually have to answer is whether Locke would save a carve-out that was (re-)enacted with a new and more acceptable purpose. What should be done about New York City’s “Regulation I.Q.,” for instance, banning services of worship in public school buildings after hours? Invoking long-bygone anti-Catholic prejudice does not answer that question.
I am inclined to let Senator James G. Blaine and his legal progeny rest in peace and allow states operating with currently acceptable non-endorsement motivations to enjoy broad latitude to carve out broad exemptions for religious institutions from both the benefits and burdens of their laws. The advantage of such a decentralizing solution is that each reasonable side of an unresolvable debate gets some share of policy-making power. No one’s rights are offended by Missouri’s carve-out in Trinity, if “rights” are defined by national consensus about religious equality, because no such consensus condemns the modest (albeit “discriminatory”) burden of being deprived of a new playground surface – especially given that Trinity Lutheran gets in return the much more valuable carve-outs from Missouri’s regulatory and tax burdens.
Monday, August 15, 2016
Co-Authoring & Essays in the Legal Academy
Explaining to other professors why we law professors tend to write alone can be challenging. When I told an accounting professor about my impression that it was "better" to write a single-author piece than a co-author piece, he responded that from his perspective it looked like I couldn't find anyone else that agreed with me.
Is my impression unfounded? I'm curious about how other law professors view this issue. My perception is that law professors tend to discount co-authored pieces and essays against articles. If a well-placed, single-author law review article is the gold coin of the realm, essays and co-author pieces count for something less, maybe silver or bronze. But how much less? There doesn't seem to be any clear standard. If an article is worth 10 points, is an essay worth 4 points? Is a co-authored article also worth 4 points? And then you have the co-authored essay. Is that also worth 4 points? They all seem to have the same value: not as much as a single-author article.
Some are more pessimistic about the value of co-authored pieces. Another view I've heard about co-authored work is that everyone assumes that the other author deserves all the credit for the piece, meaning that neither author gets any credit. Thus, a law review article with one name on it would be worth ten points. Adding a second author to the article would entirely destroy its "value." Some more thoughts on co-authoring after the jump.
One recent study found that publications by teams of co-authors tend to draw more citations and have a higher impact than single-author pieces. This puts pressure on the idea that co-authored work has less "value" than single-author production. For now, it may make sense to draw a line between career value and social/scholarly value. It does a young academic little good to devote too much time to co-author projects at the expense of producing traditional single-author work. Am I wrong about this impression?
For my part, I've enjoyed co-authoring and have done it repeatedly. In every instance I've taken the second author slot. It has given me the ability to work closely with some extremely talented people. It also tends to create more opportunities to talk about ideas. Because I've had the good luck of partnering with hard-working co-authors, it has never been difficult to coordinate. The co-authoring process also creates natural pauses that allow you to reflect on the project from a fresh perspective. I can put a draft down for a couple of weeks while a co-author takes the oar. (In the interim, I turn back to that bigger single-author piece.) Afterward, I can pick it up again with a fresh perspective.
I'm curious about what other faculty thing about co-authoring. My inclination is to keep doing it in a manageable way. It seems easier to collaborate on narrower, more focused essays. This lets me take on co-author projects without taking away the time I need to put together larger articles.
9th Junior Faculty Federal Courts Workshops
Saturday, August 13, 2016
More on names
Shima sparked a conversation over how prawfs and students should address one another. I want to explore a different issue of student names.
At SEALS last week, a co-panelist told a story relayed of a female law professor who had twice been the subject of formal administrative complaints by students whose (first) names the prof had mispronounced in class. In the discussion that followed, some panelists recognized the concern that mispronouncing the name can send a message of exclusion or otherness, while others suggested that this provided another good reason to use last names in class (hence the connection to Shima's post).
This story unnerved me, although I recognize that there may be more to it. I am troubled that students are so suspicious and so ready to assume the worst of what was presumptively an innocent mistake that the professor (hopefully) handled with some tact. I am troubled because, if mispronouncing a name does send a message of exclusion, there is not much I can do about it; any attempt to avoid mispronouncing would send that same message of "you have a funny name." Ask the student if I am not sure? "You did not ask Jim how to pronounce his name." Ask for phonetic spellings? "You didn't need Jim's phonetic spelling." Get phonetic spellings in advance? That does not help me during the first class. Use last names? I am not sure they are so much easier to pronounce (I began using first names in part because I thought it would minimize pronunciation problems).
As I said, I hope there is more to this story than the sparse details I heard.
Friday, August 12, 2016
Patent Doctrine (& Copyrightable) Subject Matter - IPSC 2016
Patent Doctrine (& Copyrightable) Subject Matter - IPSC 2016
Guest Post by Andres Sawicki, U. Miami
Are Engineered Genetic Sequences Copyrightable?: The U.S. Copyright Office Addresses a Matter of First Impression – Chris Holman, Claes Gustafsson& Andrew Torrance
Data-Generated Patents, Eligibility, & Information Flow –Brenda Simon
Inventive Application, Legal Transplants, Pre-Funk, and Judicial Policymaking –Josh Sarnoff
The Impact on Investment in Research and Development of the Supreme Court’s Eligibility Decisions – David Taylor
The Fallacy of Mayo’s Double Invention Requirement for Patenting of Scientific Discoveries – Peter Menell &Jeffrey Lefstin
Holman, Gustaffson, & Torrance—Are Engineered Sequences Copyrightable?: The U.S. Copyright Office Addresses a Matter of First Impression
Holman: Couple years ago, talked about why engineered DNA should be copyrightable. Big conceptual leap was extending c to software, so going to DNA no big deal. A lot of people have made this argument. Irving Kayton around the time when software was deemed copyrightable was shocked, perplexed when asked whether DNA should be too. And then wrote that it should be copyrightable. Drew Endy—synthentic biologist at Stanford—anyone who is involved in synthetic biology can’t understand why you can’t copyright genetic code. Holman worked with founders of DNA 2.0. It’s like Microsoft saying they sell plastic because they sell DVDs with software on it—DNA 2.0 doesn’t sell DNA, they sell the content encoded in it.
Holman and Torrance got the Prancer sequence from DNA 2.0 and submitted registration request to Copyright Office in July 2012. Received generic form rejection in August 2012. In November 2012, submitted appeal requesting reconsideration. Took 14 months until they heard from Director of Copyright Policy, apologizing for delay saying it’s a matter of first impression and an important issue. Director ultimately rejected registration with six reasons. Holman going to refute each.
Main argument from Copyright Office is that engineered sequences don’t fall with statutorily enumerated category. But statute uses “include” and legislative history shows the list is illustrative and not limitative. A lot of this came up in Bikram yoga case too. Nimmer similarly says if something is sufficiently analogous to existing subject matter, it should fit. Goldstein makes similar points, citing House Report.
Copyright Office says Congress amended statute to include software. Holman & Torrance draw analogy between software and genetic code. Amendment introduced limitations on software copyright, and defined computer programs. The CONTU report form 1979 is the basis for why Congress believed that software is copyrightable. Conclusion of report was that no legislative change required to make software copyrightable because it already was. Compare to architectural works amendment, which did add category. CONTU report was policy-based: large investment to create, cheap to copy, needs IP. Same applies to engineered DNA. History, in 1960s, Copyright Office took position software not copyrightable, but led to rule of doubt.
Office also said we can’t do prior art search. But Office doesn’t do searches for anything. Plus, it had no ability back in the 1960s with software. And it should be incumbent on Office to develop capacity.
Office also said no overlapping copyright and patent protection. But Oracle v Google and JEM v Pioneer to the contrary.
Office also said 102(b). But engineered DNA can be protected without violating 102(b).
Functionality arg. But so are copyrightable software programs, which don’t need artistic expression.
Bias against copyrightable expression in a biological system.
Q: Agree with first premise that software can be covered by both copyright and patent. But disagree with ultimate arg, and Oracle is mistaken. You can’t protect functional things under copyright. Software was done for anti-piracy benefits. CONTU retained idea-expression dichotomy. You can protect code, but not underlying functionality. Can you do that for DNA?
A: Yes, lots of redundancy in DNA.
Q: Oh so you can use junk code?
A: It’s not junk. There are an astronomical number of ways of coding for a protein.
Q: So if someone were to take our code for fluorescent protein and reverse engineer, you can prevent piracy of your version, but not their reverse engineered effort.
A: That’s exactly right. There is merger analysis and inoperability and a bunch of things you can import from software. The advantage over patent—imagine these in PAE hands. A troll asserted fluorescent protein patent. DNA 2.0 doesn’t want to prevent others from using function. They just want to prevent piracy.
Church wrote book in English letters and in DNA. So you can use DNA to encode English language.
Q: Why is life plus 70 the right regime?
A: I think it should be shorter, but I still think it’s not so bad because scope of protection isn’t terrible.
Q: Analogy to software a great start, but need to talk more about merger discussions. The premise was that if you can’t implement functionality another way, no protection. For the moment, we don’t know how to code DNA functionality multiple ways. What are the implications of locking up DNA code?
A: Think about Monstano—a farmer saving seeds. That’s piracy. They aren’t changing the code. But, if you have another company with a lab that does same function with different code, that should be permitted. For a small protein, because there are multiple ways to code, if you tried to make the identical protein, there are so many redundancies, if you make one code, there isn’t enough matter in universe to make all possible versions of that function.
Q: In software, I started my career talking about tailoring for software. I think software is a different animal because of functionality and interoperability. I think you’d be better off following a hybrid or sui generis proposal like semiconductor. If industry wants to support you, they might be able to get it. It’s just DNA is not close enough to other copyrightable stuff aside from software.
A: Yeah, when I got the rejection from the Office, DNA 2.0 didn’t want to appeal to federal court. But we are getting a lot of interest from lawyers who are pushing for these kinds of cases. And yeah, I agree that semiconductors and other countries’ fashion design protections might be a better model.
Simon—Data-Generating Patents, Eligibility, and Information Flow
Simon: I’ll discuss intersection of patent eligibility and info flow. Sup Ct has expressed concern about patent exclusivity impeding flow of info. Sichelman and I introduced idea of patents that generate data. They are patents that by design generate valuable data. Will talk about Sup Ct language reflecting info-flow concerns. Will discuss whether those decisions express concern not only about downstream tech, but also downstream data. Will also talk about unintended consequences of restricting eligibility.
Examples of data-generating patents. Genetic testing, sleep trackers, heart-rate monitors. True, ordinary use of patented inventions might generate data about ways to improve the design of that invention—e.g., garden hose. Data-generating patents different because data about users or world itself distinct from information about the patented invention. When these patents are issued, might create market power over not only invention, but data as well. Unlike trade secret law that has safeguards like reverse engineering or independent discovery. Tech advances in big data era have made this protection even more valuable.
Sup Ct decisions have expressed concern about some patents impeding flow of info. Karshtedt has a nice paper on Breyer’s parallels between copyright and patent. In Mayo, Breyer pointed to possibility that exclusivity might impede flow of info, and provided some examples. Raising price of using ideas. Cost of searching. Costly licensing agreements. Court later describes ways that patents on laws of nature can impede technology on later discovered features of metabolites, and individual patient characteristics. This latter stuff is something that the patent holder may have exclusive access to because of its data-generating patent.
AMP v. Myriad denied patentability to naturally-occurring genes and the info they encode. Thomas referred back to Mayo, balance between incentives and impeding info flow. Emphasizing info flow characteristics may show court’s concern with patentee leveraging patent exclusivity to exercise power over data gathered as a result of its patent. Myriad refuses to contribute patient data to public databases. That means competitors have limited data to use for their own research. Myriad reaped a bunch of lead-time advantages.
Final decision is Breyer’s LabCorp dissent from cert dismissal. Even way back in 2006, three Justices were commenting that patents can restrict flow of information. Also note that more recent case—Bilski—used similar language. Methods of hedging risk unpatentable. Stevens concurrence cited LabCorp and expressed concern with “Information Age” issues. Patent on foundational technology—sequencing or internet search—that provides for preclusive effect can prevent competitors from generating or accessing data.
Typically, concerns about info flow in patent seem puzzling. Disclosure is the quid pro quo, although we can argue about how effective it is. Data-generating patents raise a distinct issue—the patent allows for the generation of data that is then protected via trade secret.
Primary factor for determining whether they restrict info flow is whether they have a preemptive effect on marketplace competition for data. Contact lens with info about diabetes wouldn’t have preemptive effect because there are other ways to get the info about diabetes. May be problematic from ethical or privacy perspective, but not from info flow perspective.
Unintended consequences. Even if we can narrowly tailor restrictions, we have a problem that we will reduce disclosure overall because inventors will keep these inventions as trade secrets. Maybe we can counterbalance by imposing some data disclosure requirements. Might need some data exclusivity period to ensure that incentives are maintained. Prizes and rewards and sui generis protection possible too.
Q: Will this be industry-specific? Could imagine in software or electronics patents, the data re sales, usage, etc would be valuable in the same way that patient data might be valuable, so unless you want all of the data, you will have to limit by industry.
A: Most concerning patents at first blush are medical for public health reasons. But some of the data you are talking about, there’s a little bit of a blur. Imagine a deep brain stimulator measuring information from consumers. Is that commercial data? For some of these implementable devices or similar things like fitbit—how many hours of sleep you get—how much of that is health data? I would hesitate to implement strong industry-specific limitations. I would focus on preemptive character.
Q: To extent you identify a different class of invention, maybe there is an enablement angle. Maybe some of the data has to be accessible? That would need a significant rethinking of enablement, but it suggests that the standard might be different by data-generating patents.
A: But we’d have to dramatically change enablement requirement because it’s set at time of filing. Some have proposed something like this—maybe at time of maintenance fees. I can only imagine can of worms. It’s an interesting suggestion though.
Q: Can make the case that a lot of data wouldn’t be generated at all. Myriad a great example. Patients’ complaint was that medical community said patients shouldn’t be able to look at their own data.
A: Ted and I wrote a bit about prospect theory and coordination considerations. I think the conclusion to draw from this is that information flow concerns might be undercut by overly limiting patentable subject matters.
Inventive Application, Legal Transplants, Pre-Funk, and Judicial Policymaking –Josh Sarnoff
Sarnoff: Lefstin has a very good and thorough discussion of Neilson. Established line between principles in the abstract, which weren’t patentable, and applications, which were patentable. I think Lefstin does a great job of explaining that this is a practical application. From brief, legislative record says no inventive application hurdle. Not sure I agree. Might be overstated, especially with respect to composition of matter. LeRoy and O’Reilly. O’Reilly in particular brings Neilson to US. Two years before these cases was Hotchkiss,
which had human creativity and ingenuity requirement. So question is what do we do with the discovery itself—is that part of the creativity or not? My view is that when the dicta comes to US, we have the inventive application requirement.
I don’t think the true origin of inventive application is Funk Bros. I think Jeff does great job with 1952 Act legislative history, which decided not to overturn Funk. So if that case was inventive application, it would still be the law post-1952. Cases shortly after the Act made clear they understood inventive application is part of the law. Question whether it’s a good thing. And Congress didn’t eliminate ability of courts to modify law, subject to one constraint.
Flook relied on Funk too. Congress hasn’t reputed Funk. Should courts repudiate inventive application? I argued before, Ansonia Brass has the non-analogous use requirement, Reisenfeld said it too; non-analogous use is there for a good reason. We don’t want to lock up what the previous world of human inventions has given us. We want creative advances. There are earlier strains on non-analogous uses. Robinson and Leck say discovery of what nature can do is good, but lock up with patent rights only things that nature doesn’t itself do. Non-analogous things of what nature does. If new use is inventive in the other sense, it is non-obvious.
Why should we care? Mostly non-utilitarian moral views from 18th century. McCleod says this is God’s gift and locking up is a moral sin. Lockean view that we owe equal concern for each other. I think this is a better way to put it. Science itself shouldn’t be protected by patent rights. We can allow patents for inventive applications that aren’t just the world itself. If there are applications that allow you to effectively lock up the natural thing, then just do away with restriction on locking up natural thing.
Comparative perspective—scientific results are the common property of all mankind.
Prior art treatment dicta are followed, inventive application is required. Courts remain free to establish eligibility rules regarding applications of nature according to best policy.
Q: Under your view, you give Morse a claim—why not recognize that a lot of this area is overclaiming, and that was something potentially at issue in Neilson. Having a practical application is good. When you have a scientific law or principle, implicit in that is some fairly substantial scientific advance. What we don’t have is when is a discovery eligible?
A: If we’re gonna allow non-practical application, we might as well allow patenting discovery. If that stuff should be free for all to use, then granting a limited application just because you were the first makes no sense. If you can write the seventeen applications, that makes no sense too.
Q: Does statute matter at all? Two points. At time of Funk, for many authors, ingenuity was tied to [didn’t catch this]? How do we deal with Federico, finding a new property of a substance is ok—why?
A: You still had to have a non-analogous use. In terms of statute, it matters as a presumption. Once you recognize Funk was the law, Congress didn’t reverse, courts after
recognize it, then the answer is the law. Since then, other courts have played around and changed it. Now the Supreme Court is changing too. If you care about fidelity to 1952, fine. But I think Congress left it open in 1952. Didn’t change it but also didn’t prevent changes. Only question if there is a constitutional constraint on treatment of scientific discoveries. I don’t think Court will go there, esp post Eldred, but there’s a non-frivolous argument.
Q: Court has tended to lump all the excluded categories together. And Mayo suggests it doesn’t matter how narrow or specific your principle is.
A: Science and nature is pre-existing. Abstract ideas—we have no idea what that means. I view it as some abstract ideas are fundamental to how the world works. I am more sympathetic to smaller things that should be treated as human creativity. But we have no theory of abstract ideas so it’s a total mess. Still doesn’t tell you most important question—what level of incremental creativity, which requires some theory of difference. If we went to invention, we would have some theory. That’s something courts can build over time. Preemption makes no sense. I think Breyer has made a hash of the law. I would rather see us fund scientific discovery through taxes, but who knows.
The Impact on Investment in Research and Development of the Supreme Court’s Eligibility Decisions – David Taylor
Taylor: Haven’t done the empirical work on this yet, but just getting started. Interested in impact of 101 on R&D. We all know the two-part test. Caveat that I am reporter for AIPLA 101 task force, and this doesn’t represent their views. But lots of people view the current test as bad and are thinking about going to Congress. Would be nice to have data about extent to which Court’s decisions have impacted investment. I want to study that by surveying VC to test hypotheses. First hypo: four recent decisions have impacted decisions. Second: Impact significant. Third: Impact negative.
Want to look at diverse firms at various stages of VC funding and tech areas. Two types of questions. Have Court decisions impacted, including knowledge of decisions. And then indirectly without mentioning decisions, how has decision-making changed over time. I want database of VC firms from 2016 and from 2009. Plan to ask about activities from 2006-15. Survey only about US.
Some ideas. “In your opinion” questions about effect of patents on investment in invention and marketing. Meat of survey—on the left are tech areas and then effect on each area. Next question is on effect on each industry area. Are they aware of the decisions by name. Effects of particular cases on financing. How much, which decisions, and what has impact been—direction, tech, and industry. Between which tech areas—out of which and into which. Some broad questions about type of financing in time period. Then, if willing, amount of money invested by year. Want to go to 2006 to get behind Fed Circ Bilski decision. Can also look at size of investor.
Where it gets difficult and ugly is to ask particular questions about type of tech are by percentage by year. And then more complicated by industry. That’s it.
Q: Useful to get more granular to ask about whether decisions change to ability to get patent, changes to likelihood of getting sued, and then changes to uncertainty?
A: I like that. Especially the question about uncertainty.
Q: A question to get a bead on—decision of VC to fund a company is hugely complex. Questions to get directly at that? How do patent eligibility cases affect your decisions?
A: Maybe ask some sorting or ranking of factors about relevant importance?
Q: I’d change order of questions. You raise salience of decisions at the outset. I’d ask questions about investments first. And make them coarser so your response rate goes up. And then you will want to bury salience of eligibility. Also, you should do a five-point scale rather than three-point.
A: Great. Thanks.
Q: Narrow point—is patent protection important at all? And why? Often hear that it is part of an exit strategy. Broader question—why should we care? Real question is substitution effects. Ask legislators if they are going to change funding decisions in response.
A: Also why limit to patents?
Q: That’s my question too. Ask about non-patent appropriability mechanisms. For the people who answer no, this isn’t important to me. Question if that’s because they have substitutes available.
Q: You can still ask patent-specific questions, just do it at the end, and don’t let them go back.
The Fallacy of Mayo’s Double Invention Requirement for Patenting of Scientific Discoveries – Peter Menell &Jeffrey Lefstin
Menell: Want to fully credit Josh for his influence on Mayo. This is unusual for me because I usually do normative work, but this is historical, and Jeff is great with that. So we are doing a historical, interpretive paper. We agree that biosciences is an area where patents have been relatively successful. Four points. First, not explicitly in brief, when you peel back layers of Mayo, you realize Josh wrote it. Second, we don’t have any briefing or cases on a key word in the statute: “discovers.” Then we’ll go to a couple of historical points.
One q I have come to appreciate, it would be amazing if Justices could figure out everything on their own. This idea of omniscience is under-addressed. But they are human. Opening brief and petitioner briefs, mostly short. Most influential was Josh’s. Then a bunch on either side, including the government, saying this patent is just garbage on 102 or 103, and leave it at that. When we get to the outcome, the Court got the language from Josh. He talks about the requirement of prior art treatment, from O’Reilly. I think it was a mistake, though.
I’ll talk about the statute. There is this word “discovers.” I was taught to start with text, then structure, and then go higher up if you like. It is in Constitution, and then in patent acts throughout the years carry the language. Order has changed, but we’ve had discoveries throughout. Then a finding from Senate Report in 1836, that talks about much has been discovered but much unrevealed, and the mysteries of nature unfolded. He was talking about science. So no question at beginning of industrial revolution we are talking about science. And then it’s not discussed until the Plant Patent Act of 1930.
Lefstin: Assuming we care about statutory text, if you go to legislative history, a lot of concern about whether discovery of plant was constitutionally patentable. The meaning of invent at time of Constitution included discovery. For Plant Patent Act, we get some examples of what it means to invent or discover. Includes finding a plant in your backyard. Why do we care? Because Congress uses utility patent statute as home for Plant Patent Act. It reads “invented or discovered.” Maybe text doesn’t matter. Or maybe conventional propagation was in first and second. Or maybe they mean different things in the two places it comes up in statute, which I don’t think is tenable. 1952 reports indicate no change. I am less convinced than Josh about Funk Bros implications—don’t think Congress knew about it.
Menell: Another great discovery. Credit Jeff for discovering true meaning of Morse case. He claimed all uses of electromagnetism. In doing so, they cite to hot blast cases. The language is we must treat the case as if the principle was well known. Why? Out of context, Stevens and Breyer are making a plausible interpretation, but it’s completely incorrect. They were using this to postulate that if this were the same as the Minter case, it would still fit within the category of a machine. Morse got it right—unlike Neilson, where all methods of pre-heating improved blast furnace, not all methods of electromagnetism communicate at a distance. Stevens found that same language out of context in Flook and said treat the algorithm as unknown. We forgot about this because Diehr, which we thought overruled it.
Then we get to Mayo. Quotes the same passage. The question was: did Neilson inventively apply pre-heating? Yes, says Breyer, here are the unconventional steps. Jeff points out that Neilson case rejects inventive application argument.
Jeff: Main challenge of Neilson was enablement problem.
Menell: Treating the principle as well-known was about whether this qualifies as a machine. Under the Minter case, which had to do with self-adjusting chair, they decided it was a machine. We wanted in Sequenom to realize they misread the case. If you look at district courts now, it’s a disaster. And Patent Office is worse. So now algorithms are no longer relevant to invention. Go ask Forsyth Hall people. Can’t do AI without algorithms. I would take view that let’s take software out. But I think we’re going to spend another decade chasing our tails with a dysfunctional system.
Q: Quick point. I totally agree with Jeff on discussion of English cases. Clearly, they didn’t understand language they were reporting. They didn’t have substantial novelty requirement. We had just gone to non-obviousness. Then what do we make of the import of the language into our system, which was different from the other system. Who knows? But we did build on it in a variety of ways. Point is Congress hasn’t adequately addressed. Courts
have gone back and forth, and it’s really an open question. Courts are free to enforce inventive application, Congress is free to get rid of it entirely.
A: If Court wants to adopt the rule, then that would be fine. But they have to deal with text. Yours was the only brief with any substance on this issue. There is no case dealing with “discovers.” There are people who think—I don’t think religion solves the problem. A lot of my students say E=mc2, but the annealing patent is just understanding the properties of copper.
Q: How much has to do with the loss of a real utility requirement in patent law? In terms of practical application, seems that we’re just talking about utility requirement. Why aren’t people pushing the reinvigoration of that doctrine? One of the old cases talked about practical utility. That gets rid of a lot of the abstract idea problems.
A: But that creates the problems of State Street. A useful Arts test with utility req might work. Even in Alice, there was concurring opinion that said Stevens was right. Court should’ve taken State Street. Unfortunately, Court isn’t selecting cases right. I’m really upset they took Apple v. Samsung on the wrong issue. And then they take the cheerleader case, which is much worse if you want to define functionality. They aren’t getting the right issues. Maybe there were other things about Sequenom that troubled them. We need to error correct. But I don’t think the Court will.
Industrial utility highlights for me that these are legislative determinations.
Q: Alex Kasner piece in Stanford is great. What did they mean by “discovery”? And he does a long historical analysis.
A: When I think about Sequenom, I am astounded that the Supreme Court didn’t want to take this on. It is a breakthrough. It is a woman’s health issue. I’ve been told by Ariosa representatives that the patent was poorly drafted. But why wouldn’t it make sense to at least say this is the kind of breakthrough that is eligible. I don’t see that the Court has a good grasp of how people will respond. Seems odd to say if you do Nobel quality research, you are ineligible.
Commons - IPSC 2016
Commons - Breakout Session IV - IPSC 2016
Licensing Open Government Data – Jyh-An Lee
The Romance of the Commons – Sean Pager
3d Bioprinting Patent Boundaries – Tabrez Ebrahim
The North American Mitochondrial Disease Consortium: An Emerging Knowledge Commons – Brett Frischmann & Katherine Strandburg
Licensing Open Government Data – Jyh-An Lee
Abstract: Governments around the world create and collect enormous amount of a wide range of data. For various policy reasons, open data has become a popular government practice and international movement in recent years. It is estimated that more than 250 national or local governments from around 50 developed and developing countries have launched open government data initiatives. Businesses have developed innovative applications, products, and services based on open government data. Open data policies have wide been recognized as a tool to foster government transparency and economic growth. Open data policy involves various legal issues. Among others, it is critically important for governments involved in the open data movement to devise a most appropriate legal way to release its data, and intellectual property (IP) licensing has been viewed as one of the main obstacles for governments’ open data releasing. Entrepreneurs may hesitate to use or re-use government data if there is no reliable licensing or clear legal arrangement. This Article focuses on legal issues associated with open government data licenses. Different government agencies with different policy goals have chosen different licensing terms to release their data. This Article compares current open data licenses and argues that licenses terms reflects policy considerations, which are quite different from those contemplated in business transactions or shared in typical commons communities. The licensing of government data also concerns some fundamental IP issues, which are not covered or analyzed in depth in current literature.
Victoria Stodden: Two questions about incrementalism - 1) What happens when someone applies a totally inappropriate license to data (share-alike, etc.)? 2) How do you cope with evolving / changing data sets?
A: 1) Compatability is the issue. For a creative common license, they can be interoperable. Some regions have taken account of compatibility in the license. But you are right that share-alike is not the most appropriate for government data licenses. In this paper, I argue that preventing commons from shrinking is not a policy goal, because the data is always there. 2) In regions that protect data, there is a danger that if you make a significant addition every year, you could protect data forever.
Sean Pager: <Couldn't hear Sean's question over some construction noise>
A: It's not easy to apply commercial concepts to a publicly funded database.
Brett Frischmann: In the U.S., there was a debate about needing to grant patent rights to incentivize universities to use information generated. Does that pop up in the public sector data context, like weather or traffic data? Do we need exclusive rights to incentivize use of the data?
A: One example, in the Netherlands, data generated about the city of Amsterdam has been made open access.
The Romance of the Commons – Sean Pager
I may be the anti-commons paper. I'm trying to push back on some rhetoric used by commons proponents in the copyright context that borders on magical thinking. Romantic commons theory is the opposite of romantic authorship, but ends up at the same dystopian endpoint. Romantic authorship critique: Copyright skeptics picked up a French deconstruction of the importance of authors. Copyright skeptics suggest that corporate entities usurp the benefits and use authors like a stalking horse to that end.
Now, the romantic commons critique engages in some of the same magical thinking about the Internet and its ability to suspend the gravity of economic and commercial reality. Authors are undervalued and under-rewarded, while powerful corporate entities take advantage of the primacy of free movement of information on the Internet to usurp profits while authors fail to benefit. But the romantic commons critique mistakes volume for quality. People still send money to acquire commercial, professional content. Beyond a certain scale, it is difficult to make creative content for free. The romantic commons critique also mistakes technology for talent: home computers that duplicate 20th century technology doesn't turn the owner of the tech into a valuable creator. There is abundant content, but not of sufficient scope and ambition made by people with sufficient talent. Failing to compensate authors and incentivize creativity leaves us in a situation where, like the Olympics in the early 20th century, the only one who can afford to train / create are the ones who are independently wealthy.
Annemarie Bridy: 1) Define copyright skeptic. 2) Are we undervaluing authors, or simply a certain type of author? You seem focused on a certain type of professional, commercial level author. Why?
Sean Pager: 1) I am responding in part to the logic in papers like Lemley - IP in a World with No Scarcity. That paper makes a number of the claims I'm directly critiquing. Diane Zimmerman, Eric Johnson - These are the copyright skeptics to whom I'm responding. 2) I think copyright needs to make allowances for non-professional authors, but I think the magic commons thinking undervalues professional level authorship.
Annemarie: You seem to be making a value judgment.
Sean: I am, measured economically, the money people are willing to spend.
Brett Frischmann / Victoria: Can you back that claim in aggregate value?
Sean: I'm thinking per work.
Victoria: If everyone were willing to part with 1/8 of a cent, frictionless, it might generate more money than fewer $5 tickets.
Brett: Are they necessarily mutually exclusive?
Sean: Not necessarily.
Mike Madison: Scholars who make your style of argument more powerfully - Jane Ginsburg, among others, are making an express value-based, ethical argument. They are making a desert argument that isn't captured by a value-based, economic argument. The economic argument you are making may not be supportable. You are saying the dynamics of the system aren't making the things we (should) value.\
Sean: I'm talking about the rhetoric, not the economics per se.
Brett: McKenna is working about ambiguity of normative ends. There are a variety of ways to construct the world: fully supported professional class. You may need to think through the tradeoffs, and it may be difficult to make strong claims. 2) I'm not sure this is "commons" - you are using a romantic version of commons that is convenient for you, but I don't know if this is commons.
Mike: It sounds like you are talking to John Perry Barlow in 1996. That's not commons.
Brett: We commons scholars don't talk about commons this way.
Jyh-An Lee: Is there another term that might work?
Mike: I don't know what it is.
3d Bioprinting Patent Boundaries – Tabrez Ebrahim
3d Printing is an additive form of printing objects. 3d Bioprinting is a means of printing biologic material (tissues, organs) using the same additive process. For example, you can take tissue from someone's genetic makeup and print a tissue or organ. A potential problem - this sounds like a human organism, and under patent law, you can't patent a human organism. My paper is aims to define the boundaries of patentability and patent scope, and to analyze the ethics and morality involved.
Even if human organisms are not patentable, method claims, for example, might be patentable. In Europe, there is a morality test for living organisms (Article 53(a)).
With regard to ethics / morals, I'm investigating, in part whether patent law does / should embody ethical values in addition to economic values.
Is 3D bioprinting different from and deserving greater scrutiny than 3D printing? Should it be regulated differently than 3D printing?
I make two proposals: 1) claims of 3D printing should be shourter to avoid overreacher. 2) patent law should develop ethical limits, perhaps an "ethical PHOSITA (person having ordinary skill in the art), and perhaps the PTO should hire examiners with an ethical background.
One potential patentable claim: a Beauregard claim structure to claim what is printed in an electronic CAD file (storage medium). Are there limits when there are biologic elements? Is this "abstract material," post Alice? Is this a type of manufacture, or just abstract data?
I propose limiting the duration of the patent if we patent it, to enable quicker access. We might also consider regulatory limits on what can be marketed, although still patented.
Brett: Say more about ethical PHOSITAs.
Tabrez: I claim that there are ethical norms embedded, but not clearly defined, and we should clarify the ethics. There should be a morality inquiry regarding the PHOSITA.
Sapna Kumar: From an institutional design perspective, the PTO doesn't show any talent for ethical judgment. The FDA, on the other hand, is an entity that makes ethical judgments. Why not the FDA?
Jyh-An: When you say "needs more scrutiny," what needs more scrutiny?
Tabrez: Patentable subject matter - we should be making an ethical inquiry.
Mike: Deven Desai has been doing the most interesting big-picture examination of 3d printing technologies generally. His view is that 3d technology heralds the cusp of another industrial revolution - 3d printing is the steam. By raising the ethical implications of mechanical production and bioethics, you are adding something to the big picture. You have the introduction to a really interesting project, if you think beyond the technical questions for a certain subset of patents, and think broader about the intersection of 3d printing, health law, and ethics.
Brett: I find the patentability of this technology least interesting, and ethical, moral, and regulatory questions more interesting. In these sorts of fields, its often all about the upside. It's hard for me to know what the downsides are. Classifying and describing the downsides of what we do and don't know would be useful from an ethical / regulatory perspective. That's where I want to see you go.
Governing Medical Commons – Mike Madison, Brett Frischmann & Katherine Strandburg
This is a descriptive project. Knowledge commons = knowledge and information sharing institutions. The knowledge commons framework is a template for empirical research. We are trying to untangle empirical questions about tragic commons, scarcity, and abundance questions. We are looking at the institutions that try to solve knowledge and information production and distribution questions, coordination of researchers, preservation of information, etc. We are trying to capture what's actually going on, over time, systematically. We argue that collective action to solve these collective action dilemmas is 1) possible 2) without state intervention or strong IP rights. We are inspired by Elinor Ostrom's Instututional Analysis framework.
Our first book, Governing Knowledge Commons, collects case studies on how knowledge commons are working. Our new book takes the same research framework looking at a more specific framework, Governing Medical Commons. We'll probably focus domain by domain in the future.
What have we learned so far? No strong conclusions, but here are the headline takeaways: 1) knowledge commons may confront diverse obstacles / social dilemmas, which are not as simple as the free rider / tragic commons binary. 2) Knowledge commons operate / are nested within other complex systems. 3) Knowledge commons often depend on shared infrastructure. 4) Informal governance institutions, including trusted leadership, often play key roles. 5) Commons seem to play an important role in early stages of some industries. 6) There are many and complex motivations for individual participants.
In the medical commons context, we see the same things, but here are a few specific insights: 1) clustering and nesting - we see supply side, demand side, and infrastructural commons. 2) Data curation and coordination problems become clear. 3) Trusted leadership becomes critical. Social hierarchies continue to play a role - not clearly egalitarian systems. 4) Commons, esp. in this context, doesn't mean the absence of state intervention.
Jyh-An: What's unique about medical commons?
Mike: It's hard to say in the abstract. This is our first domain specific book. But we chose medicine first in part because Brett and Kathy conducted an early case study in a medical area. Many scholars were engaging in relevant research in health and biotech. It's hard to say that knowledge commons are dominant / particularly salient in medicine. I want to do research into education knowledge commons. Michael Burstein is interested in entrepreneur knowledge commons. Then we can start explaining how different knowledge commons are distinctive, if they are.
Amy Kapczynski: It may be interesting to ask, for example, how communities handle disputes. And it may be value to import this to conventional IP regimes / thinking.
Mike: Ostrom's design principles are curious, because they seem more like rules and guidelines. We spend 6-7 years trying to figure out how to do Ostrom-like inquiry that was flexible enough to investigate what we want to. It is important to think about porting into standard IP literature, and also information science people / IS community. Political scientists, institutional economists, are asking similar questions.
The North American Mitochondrial Disease Consortium: An Emerging Knowledge Commons – Brett Frischmann & Katherine Strandburg
To respond to Amy's last question, we've looked at dispute resolution. For some knowledge commons, it ends up being unimportant.
Amy: We made need more systematic inquiry into dispute resolution. Some case studies get at it, and some don't.
Brett: Ostrom's design principles arose from 30 years of case studies. We need to cast a broad net as we figure out how to get at what we want to know.
Our latest case study looks at another rare disease and a consortium looking at how to treat the disease. Rare disease researchers face challenges - they are treating a relatively small community, and information sharing and coordination is a critical issue. They want drugs / pharma, but you need data to attract pharma, so you need cooperation from a small community of patients and researchers. The consortium we studied, NAMDC, is a nested commons. The network and the consortium within the network is a good test bed for our framework and methodology.
A nested commons is various consortia that share protocols and research ideas at the macro level, and we zoom in on one member of these Rare Disease Consortia. The consortium we looked at has different members of the commons that belong to different institutions, like NIH, Pharma companies, and clinical research sites. And you can zoom in on a clinical research site like a hospital, and find another commons - different researchers, patients, families, and etc.
Main objectives for RDCRCs: 1) Creating pool of research subjects / patient data; 2) sustain / grow community 3) promote knowledge sharing among members of community, and to outsiders; 4) cooperate with patients in setting research agenda priorities; 5) translating research into treatment.
Consortia are complex environments. Researchers hope that solving mitochondrial disease may actually provide information that helps with other treatment.
In applying the knowledge commons framework to our study of this commons, we focused on seven "action areas", grouped in three categories: 1) Creating / sustaining collaborative research community 2) developing / managing shared pool of research subjects / patient data / biological specimens; and 3) managing relationships with pre-existing mitochondrial disease organizations. NAMDC is a new organization facing two challenges - a) treating patients, and dealing with the diagnostic dilemma - how best to treat patients when you have little data and b) developing a community and governance institutions. This lets us see an early history of a knowledge commons.
Two problems manifest: research criteria is sometimes too strict, and sometimes there are data entry problems and conflicting opinions about how to code data received.
Sean Pager: A law question / datapoint. A researcher had a relationship with a group of patients, in a quasi-contractual relationship with patients. When the researcher left, the university kept the data, and a court concluded the university could do so, despite patient displeasure, and patient understanding that their relationship was with the researcher. Are these consortiums thinking about the ownership question?
Brett: Interesting question.
Mike: Data ownership is the undiscovered country w/r/t university research. Despite the facts there are massive amounts of data generated, stored, and used, the lack of attention at all to basic law / governance questions is striking.
Victoria: Or everyone assumes they own it.
Brett: Not held as a trade secret.
Annemarie: My husband works in this field, and there are many collective action / coordination problems.
Brett: NAMDC owns / restricts access to data. Data is deposited at multiple institutions.
Victoria: Participants say they want their data to be open, but standard informed consent principles seem to cut in the other direction.
Brett: There is a data use policy. If you are a NAMDC researcher, you can get access, buy you have to have your research project approved. Universities haven't asserted ownership to date. The NIH grants anonymized public access after five years. And I'm not seeing that patients in this research consortium about open access as much as privacy.
Yvette Liebesman: Some members of these communities are willing to take greater risks.
Amy: If hacking data is a crime, you do own data. People can't use property, so they are trying to use contract to govern data, which functionally works a lot like property. Contract does allow for some control over third parties.
Mike: Who the "my" is in "my data" is a complicated question, between patients, researchers, and the university.
Thursday, August 11, 2016
IP, The Constitution, and the Courts - IPSC 2016
IPSC 2016 - Breakout Session III - IP, The Constitution, and the Courts
Lexmark and the Holding Dicta Distinction – Andrew Michaels
Established Rights, the Takings Clause, and Patent Law – Jason Rantanen
A Free Speech Right to Trademark Protection? – Lisa Ramsey
Lexmark and the Holding Dicta Distinction – Andrew Michaels
How do we distinguish dicta from holding? This project uses the Federal Circuit's dispute in Lexmark (on remand) over the breadth of the holding in Quanta. As Paul Gugliuzza summarized it for me (I was a late arriver), Michael's argument is that, rather than treating holding/dicta as a binary distinction, we should envision a spectrum of the types of things that courts say in their opinions.
A spectrum approach to holding v. dicta might helpfully restrict courts. If a holding says "No red convertibles in the park", we might worry about a case where a subsequent court says the opinion requires a holding of no vehicles in the park. They are not unrelated, but perhaps still dicta. Broader statements should have less capacity to bind than narrower holdings.
Jason Rantanen: This is interesting. We often see doctrinal pronouncement in Federal Circuit's case, much broader than necessary to decide the case. We also see language from earlier court opinions that are clearly dicta. Panels in the Federal Circuit nevertheless use it later. I wonder, however, whether we should take into account how the court is using the language. For example, do we bind the court to holding language only, or might they be appealing to the persuasiveness of early reasoning. Your spectrum focuses on text as it appears in the early opinion, but is that too narrow? Can dicta apply?
Andrew - Sometimes dicta is well considered. But if the court pretends it's a holding, and acts as if it is bound, then they are failing to adjudicate the dispute, and that's a problem.
Paul Gugliuzza - I think the Federal Circuit may engage in some over-use of dicta. Is there a prescriptive payoff to this spectrum? How does the court determine whether to follow the statement or not?
Andrew - The payoff is to require courts to deal more directly with the question of dicta.
Pam Samuelson - I think it's interesting when dicta becomes a holding, over time, and solves a problem. For example, the 3rd Circuit (Whelan) case had a lot of broad dicta that led to a lot of litigation. But the 2d Circuit also included a lot of dicta in Computer Assocs. v. Altai, and the dicta from the that case seems to have knocked out Whelan, and been followed, correctly from Pam's view, in many other circuits.
A subsequent observation from Paul: I think the spectrum provides an interesting descriptive contribution, but I wonder whether, instead of arguing whether a statement is holding or dicta, we'd just end up arguing about (1) where on the spectrum a particular statement falls and (2) whether, given its location on the spectrum, it's binding law or not.
A Problem of Subject Matter: Patent Demand Letters and the Federal Circuit’s Jurisdiction – Charles Duan & Kerry Sheehan
States are passing laws designed to cabin patent demand letters. We might presume that the Federal Circuit has primacy, but this paper argues the question isn't so cut and dried. The Supreme Court, in a case about attorney malpractice, held that there should be a balance struck between the interests of the federal courts and the state's consumer protection laws.
In a demand letter case, we could ask whether 1) this raises a sufficient issue of federal patent law, and 2) is the law unconstitutional or improper. To understand the second question, look to the Federal Circuit's Globetrotter case. The patent holder threatened to send letters to the defendant's clients. The defendants sued for tortious interference, and Fed. Cir. held that the Patent Act preempted acts that prevent sending demand letters.
We argue there is an odd disconnect in the Federal Circuit's analysis. It's a mistake that makes the Federal Circuit's jurisdiction appear larger than it is.
What is the right policy outcome? Should the Federal Circuit have primacy here? The uniformity issues that inspired the creation of the Federal Circuit doesn't necessarily reach every case that touches on patent law, and perhaps these demand letter cases are outside the needs of the uniformity requirement.
Jake Linford: I'm unclear on where the line is between the stuff the Federal Circuit controls and the stuff it doesn't. It sounds circular to me. Help me understand.
Charles: The Supreme Court doesn't take the view that the Federal Circuit is the final arbiter of all patent issues. The Christensen and Gund cases are examples where the Supreme Court put the responsibility with the Seventh Circuit and Texas courts respectively. Questions of validity of the patent may go to the Federal Circuit, but not claims about a clearly invalid patent.
Lisa Ramsey: One of the reasons this is so important is because people will get different results before a state court than the Federal Circuit. Is that right?
Charles: It's unclear. If we sort some cases for the Federal Circuit and others for the states, we might get divergent outcomes.
Pam Samuelson: How does the issue of validity of the patent get to the Federal Circuit if the case starts in state courts?
Charles: Removal is the mechanism.
Pam: If so, then how do we take the ability of the Federal Circuit away? If the Federal Circuit decides whether it has jurisdiction...
Charles: Perhaps the Supreme Court takes cert?
Paul Gugliuzza: What triggers the arising under jurisdiction of the patent clause? Isn't this a matter of patent jurisdiction?
Charles: I'm not sure this meets the Constitutional language...
Paul: The Federal Circuit may rely on Globetrotter, even if I disagree with them.
Paul Gugliuzza sent me the following summary of the Duan - Sheehan paper, which I find much better than my own:
Established Rights, the Takings Clause, and Patent Law – Jason Rantanen
Recent arguments have suggested that when patent laws change, the takings clause may be implicated. I wanted to understand the analytical reasoning behind the takings claim. Takings case law is a deep, Alice-in-Wonderland rabbit hole. How does it actually apply to patent law?
1) Jason agrees that patents are property subject to takings clause. (The Federal Circuit said no, in Zoltec, when the government infringes the patent. The Supreme Court, instead, suggested in dicta in the raisin takings case, that patents are the type of property subject to the takings clause)
2) But it's inappropriate to cut and paste takings case law to patent cases. Patents aren't like rights in real property. We know what a takings of a coal mind looks like. Patents aren't the same. In addition, one key right "taken" is the right to use, and the patent holder doesn't lose the right to use, only the right to exclude or alienate. So application of standard takings cases is difficult.
3) The question is instead whether the new law changes or destroys an "established property right" in the patent. That's the taking, if there is one. What's an established property right? The type associated with property, established with a high degree of legal certainty. See, for example, the Penn Central case, where the Supreme Court is looking for certain rights. If we are looking for high degree of legal certainty, many aspects of patent law has changed significantly and frequently over time. Patent has replaced the entire statutory framework at least four times, with only very minor exceptions. For example, when Congress passed the 1836 Patent Act, it replaced the prior act, and also applied the new act to pending litigation. There are many similarities, but this is a new draft. Same with the 1952 Act: "It shall apply to unexpired patents." Damages changed dramatically, as summarized in Halo v. Pulse. Patent owners used to get treble damages automatically, and they don't anymore. Patent holders in 1836 lost that right while claims were pending.
Lisa Ramsey: One argument against cancellation in the Redskins case is takings.
Jason Rantanen: The Redskins case considers whether the right was valid in the first place, which falls outside of standard takings analysis.
Camilla Hrdy: You may want to consider why the Supreme Court has held a trade secret can be taken. If so, why not a patent?
A Free Speech Right to Trademark Protection? – Lisa Ramsey
The Federal Circuit recently held that the 2(a) bar against registering disparaging trademarks is unconstitutional. Lisa's paper aims to make two unique contributions to literature on disparaging trademarks and the First Amendment:
- Is there a right under international treaties to be able to register a disparaging or scandalous trademark? The answer is no.
- A framework of six elements that should be applied in deciding whether laws against offensive trademarks run afoul of free speech rights.
The U.S. is not the only country that bans registration of scandalous marks. Canada even bans use.
We are members of the Paris Convention, which gives signees the discretion to decide whether to deny a registration on the grounds that a mark is contrary to morality or public order.
Lisa's framework (and 2(a) seems to meet most of these conditions):
- Is there government action? Who regulates the expression?
- Suppression, punishment, or harm: How does the regulation harm expression? Are there unconstitutional conditions imposed on speakers by denying the benefit? Lisa says no, because the benefit being denied is the right to restrict the speech of others.
- Expression. What is being regulated?
- Is this individual or government speech? Whose expression is regulated?
- No categorical exclusion for the expression: Is the regulation justified because of a categorical exclusion, like obscenity or misleading commercial expression?
- Does the regulation fail constitutional scrutiny? Is it content-neutral or content-based? That triggers different levels of scrutiny in the U.S.
What could the Court do if it wants to uphold 2(a)? 1) Say it's not suppression or punishment, and the unconditional conditions doctrine does not apply, under factor 2. 2) It satisfies the scrutiny under 6. 3) Make a "traditional contours" argument like in Eldred and Golan.
Saurabh Vishnubhakat: Pushing on Lisa's state action analysis, if we apply Shelly v. Kramer broadly (where the Supreme Court refused to allow the enforcement of racially restrictive covenants in court, and which may be limited to its fact), that may suggest everything is potentially a state action?
Rebecca Tushnet: If the Court is taking a "hands off" approach to conflicts between trademarks and the First Amendment, then doesn't hands off mean no registration? Isn't that state action?
Lisa: It is state action.
Rebecca: Then isn't everything state action.
Lisa: There are real benefits to registration that impacts the first amendment. Demand letters work better when backed by a registration. And when you have a registration, it's easier to push claims that some see as questionable, like dilution and merchandising cases.
Charles Duan: When it comes to disparaging marks, those have particularly strong expression value - used to express feelings, and therefore even worse to restrict than other registrations.
Pam: Is there an international standard?
Lisa: No, as I read the law, each country has discretion to set up the system it prefers.
Posted by Jake Linford on August 11, 2016 at 08:45 PM in Blogging, Civil Procedure, Constitutional thoughts, First Amendment, Information and Technology, Intellectual Property, International Law, Judicial Process, Property, Science | Permalink | Comments (0)
Copyright Doctrine: IPSC2016
IPSC - Breakout Session II - Copyright Doctrine
Summaries and discussion below the break. If I didn't know the questioner, I didn't guess. If you asked a question and I missed you, feel free to identify yourself in the comments.
Copyright State of Mind – Edward Lee
Authorship and Audience Appeal – Tim McFarlin
Free as the Heir?: Contextualizing the Role of Copyright Successors – Eva Subotnik
Leveraging Death: IP Estates and Shared Mourning – Andrew Gilden
Copyright State of Mind – Edward Lee
Offering a descriptive taxonomy about how state of mind is used in copyright law.
2d Circuit in Prince v. Cariou: transformative use, the first factor in the fair use test: objective state of mind
9th Circuit in Lenz v. Universal: DMCA 512(f) violation: subjective state of mind
State of mind re: copyright liability - it is often said that copyright infringement strict liability. This differs from criminal law, where mens rea (criminal intent) typically matters.
If we look beyond liability, state of mind figures prominently in many different copyright doctrine. For example, authorship, including intent to be joint authors (both objective indicia and subjective intent). We haven't considered the intent of the lawsuit - are we protecting copyright or privacy, for example, but Judge McKeown on the Ninth Circuit recently argued we should. For ISPs, we have the red flag cases which have both subjective and objective elements.
Dave Fagundes: Property also deals with intent. Adverse possession and first possession have a whole mess of intent-related doctrines. Perhaps the ownership intent doctrines might help conceptualize these issues.
Pam Samuelson: Think about remedies as well. Innocent infringement, as well as willful infringement. It can play out also in relation to injunctive relief. Plaintiff's state of mind might matter with regard to obtaining injunctive relief. See also the new Kirtsaeng attorneys' fee case.
Ed Lee: Perhaps I should also look at the Supreme Court's patent cases.
Matthew Sag: If there is a universal theory about what state of mind should be for any of these doctrines, is there a logic that connects us to why we have copyright in the first place?
Ed Lee: I'm skeptical of a uniform theory. See, for instance, DMCA which is a negotiation between stakeholders.
Dmitry Karshtedt: My understanding is that civil liability more objective than subjective, while for criminal liability, intent is more subjective. and should we see the same play out in copyright?
Reforming Infringement – Abraham Bell & Gideon Parchomovsky
We have an immodest goal of reforming remedies in copyright, more systematically including culpability in the analysis. Under the reformed regime, we would treat inadvertent infringement (where the infringer was unaware and couldn't reasonable become aware) and willful infringement (blatant disregard of copyright law) different from standard infringements (with a reasonable risk assumption).
The close cases are in the middle category of standard infringement. The default is standard infringement. Compensatory damages should be awarded in every case. Injunctions would be rare and no restitution for lost profits awarded in the inadvertent cases. We are trying to preserve statutory damages only for cases where it is difficult to prove actual damages. So the defendant in the standard infringement case could argue that statutory damages exceed actual damages.
Why bring it in? 1) Information forcing - incentivize owners of copyright to clarify ownership and terms of licenses. 2) Avoid overdeterrence of follow-on creation. 3) Increase fairness.
Ted Sichelman: In the patent context, we worry about transaction / licensing costs. It may matter for copyright as well. For example, if the work is an orphan work, why should I face huge potential liability?
Abraham: The inquiry should account for the difficulty of finding the copyright owner.
Ian Ayres: Does any kind of negligence go to willfulness because there is no reasonable basis for non-infringement?
Abraham: It's not clear how we would calculate such a thing: What is a reasonable risk, re: evaluation of risk of law. We're treating standard as a residual category. But we are still arguing about this point.
Pam Samuelson: Have you been thinking about remedies re: secondary liability? The framework appears to deal with direct liability, but secondary liability cases may be the more complicated cases, where we wonder how culpable is the platform? The statute tries to grapple with through 512.
Abraham: We didn't think about secondary liability until we talked with Lisa Ramsey last week.
Pam: Secondary liability is the area that needs the most reform!
Abraham: We'll have to bracket this right now. Secondary seems to follow primary, and we don't have a better model right now.
Shyam Balganesh: How much of your proposal unravels other parts of the system? Are you accounting for systemic effects? For example, if information forcing matters, why not deal with that through a heightened notice requirement? Do you think infringement is independently problematic, or is it the best place for achieving information forcing goals?
Abraham: Unlike information forcing, overdeterrence is harder to fix with levers in other places. This isn't the only way to accomplish these goals, and we don't claim that, or that it's the best way.
Jerry Liu: Is it necessary, from an overdeterrence standpoint, to distinguish between willful and standard infringement? Google Books was arguably willful infringement, but it was also efficient infringement.
Abraham: I think Google probably was a standard infringer, from a culpability standpoint. They took a fair use gamble, and they won.
Jerry: How about the MP3.com case?
Abraham: You can make an argument that format change / transferring medium is fair use, so standard.
Authorship and Audience Appeal – Tim McFarlin
Recent projects have looked at disputes between Chuck Berry and his piano player, and Orson Welles and a script-writer. In both cases, questions of audience appeal have been nagging at me, and I want to explore that further.
Can we better use audience appeal in the infringement context than the authorship context?
Audience appeal, from the Aalmuhammed v. Lee case (9th Cir 2000), is an important factor. Audience appeal turns on both contributions, (by potential coauthors), but "the share of each in the success cannot be appraised," citing Learned Hand. If that's right, and we can't evaluate audience appeal in the authorship context, is it a junk factor? If we can, how do we do it? And if we can, should we?
What do courts do with audience appeal? Mentioned in 21 cases, but 9 ignored it in reaching the decision. 9 found it weighed in favor of joint authorship, and 3 found it weighed against joint authorship?
How do we appraise it? If we find evidence of audience appeal from both contributions, at what point is the smaller contribution too small? 60/40?
Might audience appeal help with questions of infringement, for example in the Taurus / Led Zepellin case? Might we consider the appeal of Stairway to Heaven v. the appeal of Spirit's Taurus as a reason for public interest to weigh against injunctive relief? See Abend v. MCA (9th Cir. 1998).
Jake Linford: Perhaps talk to Paul Heald about his research on how musicians copy from each other. There is some potential danger in using audience appeal to decide infringement, injunctive relief, or damages, because that leads to a copyright regime where the party who is best-placed to take advantage of the works gets to use and make money with it, even if that party doesn't pay.
Peter DiCola: You are right to challenge Learned Hand. Audience appeal can be appraised. The question is whether it can be appraised convincingly. The part about in general where does audience appeal matter may be too general, and may not be at the heart of your paper.
Pam Samuelson: Some works have audience appeal, some don't, and it might not be relevant for unconventional expressive works For example, the internal design of computer programs are not appealing. You may need to unpack works where appeal matters and where it doesn't.
Jani McCutcheon: Watch where trademark and copyright protection overlap on this issue.
Free as the Heir?: Contextualizing the Role of Copyright Successors – Eva Subotnik
This paper is inspired by two recent controversies surrounding Harper Lee and To Kill a Mockingbird: the appearance of Go Set a Watchmen, and the decision by her estate to pull the student-priced paperback from the marketplace. Both of these stories are murky. Lee may not have been in her right mind when Go Set a Watchmen was released, and the announcement from Hachette about the student-priced paperback suggest both the estate and Lee wanted the low-priced version discontinued.
Should motivations of the author or the heir matter for copyright decisions? Eva argues that it should. The law should be tougher on post-death copyright successors. We should treat them more like stewards, and require some duties on their part. If copyright ownership limits post-mordem access, heirs should be encouraged to take care.
What might stewardship mean? It has its origins in theology, traditionally applied to land. It's taken on a secular cast today. Stewardship suggests that the owner has duties as well as rights. Stewardship has something in common with commons advocates - copyright should be forward looking, and concerned about future generations. Bobbi Kwall has argued that authors are stewards, and I think it should be applied to heirs as well. Unlike authors, publishers, and distributors who did work with the work, stewardships step in as recipients of a gift, and perhaps they should step into some duties.
Application: Eva doesn't argue for a statutory change, and it's not clear stewardship would change the analysis of the Harper Lee issues, but stewardship could change fair use analysis, for example with biographers and scholars. When the heir has the ownership of a sole copy, stewardship could matter [JL: unclear to me how]. Perhaps stewardship could allow authors to better shape stewardship of their legacy. [JL: Doesn't the termination provision already exclude wills?]
Brad Greenberg: A potential disconnect between assignments and statutory heirs of termination rights. What if the author's assignee is a good steward, and the children are poor heirs, from a stewardship standpoint? Is Stewart v. Abend's analysis of the renewal right a problem for your analysis? Should we also apply stewardship duties to non-author copyright owners?
Eva: To my mind, a post-death successor gains enhanced prominence in managing the copyright after death, and I'm trying to say something specific to that group of copyright owners.
Dave Fagundes: I like the idea of stewardship, but it's still inchoate, and I can't tell to whom is the steward responsible? The work? The public? The author's intent? What if authors wanted their families to be taken care of?
Eva: You could also add the author's legacy, which may differ from author's intent. [JL: This reminds me of Mira Sundara Rajan's project from the first breakout session.]
Ed Lee: Perhaps the moral rights of integrity literature could also be helpful, which is more about legacy than children.
Giancarlo Frosio: French case 2007 might be helpful. See also Kant.
Leveraging Death: IP Estates and Shared Mourning – Andrew Gilden
Scholars seem to distrust claims by estates and heirs, but the tend to succeed in advocating for statutory change, and winning cases before the courts. But I found some recent claims that sound in mourning and grief that perhaps we shouldn't discount in copyright and right of publicity cases.
IP Narratives that are traditionally invoked:
1) Anti-exploitation. Randy California was badgered for years to sue Jimmy Page, but his heirs stepped in to claim some recognition for him.
2) Family privacy. James Joyce / J.D. Salinger estates
3) Purity narratives. Limit downstream uses, especially those that raise potential sexual purity.
4) Inheritance. It's all that the author left to the family.
5) Custody (like child custody). Children as caretakers of the work.
Copyright scholarship tends to ignore these types of claims, but we see them invoked successfully in cases like family businesses, bodily disposition, organs and genetic information, digital assets, like email, and succession laws dealing with omitted family members.
What would happen if IP took these interests seriously? Perhaps there is a desire for shared mourning and grief, both by authors' heir and fans. Fans circulate and disseminate broadly as part of public mourning, but mourning families look inward, seek silence, achieve some semblance of privacy. These interests might not be as irrational as we might think.
One solution might be to bring issues of estate planning more to the fore. Marvin Gaye and Frank Sinatra created a family business when they secured copyright, whether they meant to or not.
Rebecca Curtin: You've made a very sympathetic case, and you've repeatedly spoken about family. Do you mean family, or could you include designated heirs, like the Ray Charles foundation? What might that mean?
Andrew: We may need to think differently about those who inherit intestate and those who don't.
Brad Greenberg: The incentive theory of inheritance suggests that authors will create in part to benefit children. But there could be a labor theory of inheritance: this was the authors, like the children, and it goes to the children. In addition, is this really about IP, or just copyright?
Andrew: Copyright and right of publicity. My take is more of the labor than the incentive theory.
Q: Why does the right publicity survive death?
Andrew: Jennifer Rothman has a very good paper on this. Right of publicity is labelled as property, and property descends, so in some states it descends.
Peter DiCola: I enjoy the presentation, and I ask not to upset the applecart, but what might the First Amendment tell us about these arguments about importance of controlling meaning?
Andrew: I don't think these insights should change fair use outcomes, but my concern is that heirs' motivations are okay, especially in light of how they work in other cases. The emotional appeals are not inherently problematic. (Although I have some problems with the purity rationale).
Jake Linford: Is this project normative as well as descriptive?
Andrew: It started more descriptive, but normatively, I see no problem. Prescriptively, perhaps we could ask authors to be more clear about how their intent at registration / protection, for example.
Giancarlo: Is there space for a moral rights style argument here?
Andrew: Perhaps attribution is the best moral rights claim.
Giancarlo: Is there a mechanism is the composers of Blurred Lines had said no? Can you make the heirs grant a license?
Andrew: Blurred Lines is a declaratory judgment action - the derivative authors brought the case to foreclose liability.
Tim: The estate's emotional appeal in the Taurus complaint may have been somewhat strategic, trying to deal with the perception of greedy, rent-seeking heirs by promising to give money to sick children.
IP for Characters & Symbols: IPSC 2016
IPSC 2016 Breakout Session I: IP for Characters and Symbols
I summarize the following presentations, and the discussions about them, below the fold. If I didn't know an audience participant, I didn't include a name, but if you are an anonymous commenter, tell us who you are in the comments.
Is Copyright an Author’s Right? An Authorship Perspective on Copyright Law – Mira Sundara Rajan
Works of Fiction: The Misconception of Literary Characters as Copyright Works – Jani McCutcheon
Zombie Cinderella and the Undead Public Domain – Rebecca Curtin
Trademarks, Core Values and Cultural Leadership – Deborah Gerhardt
Intellectual Property in Internet Folklore – Cathay Smith
Mira Sundara Rajan, Is Copyright an Author's Right? An Authorship Perspective on Copyright Law
Copyright is arguably the only regime designed to promote culture, and that should mean providing income to creators. But many authors struggle to make a legitimate income. Mira is concerned that copyright isn't correctly calibrated to that end. At a minimum, authors need more voice.
Lisa Ramsey asks whether Mira plans to frame this as a human right or some other way.
Mira: International law mentions a moral right of authors as a form of human rights. But the Berne treaty may effectively embody human rights in automatic protection at creation.
LRamsey: But then might the human right to copyright conflict with a human right to free speech? And if corporations hold copyright, is it proper to think about copyright as a human right?
Shyam Balganesh: There are two ways to look at copyright - looking at authors rights, and looking at the acts that authors take. You propose that the net income of authors is low, but it's not clear that copyright is the right mechanism to enhance their welfare. Perhaps authorship is the better focus than authors.
Mira: Japan grants to corporations something that looks like a human right in authorship functions, and Japan is an outlier here.
Jani McCutcheon, Works of Fiction: The Misconception of Literary Characters as Copyright Works
Fictional characters qualify as protectable copyright works in large part because of a problematic Learned Hand opinion, Nichols v. Universal Pictures Corp. But to protect characters as works, they must be identifiable. But where is the character perceived? You can't excise the character from the text, and characters are more abstraction than expression. If we are separating characters out as works, is there a right and a wrong way to read or construct the character. If not, it may be impossible to define the character as a protectable work. Characters traverse different media, which further complicates the question.
Deborah Gerhardt: Copyright has so many tests for the same thing. I love clear rules, I love the Feist opinion because it is clear. I'm resistant to your analysis because it gives us an entirely different originality test for characters than anything else.
Jani: I'm not sure we should be looking for a way to define the character, and I wouldn't apply the test to characters at all.
Betsy Rosenblatt: I'm quite sympathetic to the project, but I'll ask a question I've been asked. Why isn't this a problem for all of copyright? Reader response theory suggests all interaction with copyrighted works is dialogic. If so, this is a universal problem for copyrighted works. Perhaps this is similar to [Guy Rub and Margot Kaminski's] zoom-in, zoom-0ut problem.
Jani: This may be a broader phenomenon.
Lisa Ramsey: This reminds me of Betsy's work on Sherlock Holmes. But I'm conflicted. Some characters are well-delineated. If I add Harry Potter to my law school novel, is there any infringement? Of what?
Jami: What do we mean by take Harry Potter? Under my analysis, if little of the expression has been taken, and there is little / no substantial similarity between the works, there is no infringement. Admittedly, the name is potent, but because of trademark significance.
Inayat Chaudhry: What if there are characters like Calvin & Hobbes, and the whole work is based on the characters?
Jami: This is a hybrid work, with visual and literary components, which complicates the analysis.
Seagull Haiyan Song: I agree the current test doesn't work. But if copyright protection isn't the right solution, should there be something else? Protection of character rights as such?
Rebecca Curtin, Zombie Cinderella and the Undead Public Domain
[Is this the best title of the conference?]
Someone tried to register "Zombie Cinderella" as a mark for a doll. There was an initial refusal grounded in confusion with Disney's Cinderella. The Trademark Trial & Appeal Board reversed the refusal, holding the "Cinderella" part of Disney's mark was a conceptually weak indicator, in part b/c of third party dolls on the market, and in part b/c of long history of the Cinderella story.
The danger here is that the signal sent is that Disney should have worked harder to protect the mark. And we see protectable marks for Cinderella soap, cosmetics, etc., and that doesn't seem problematic in the same way. Is Cinderella generic for dolls? That doesn't seem quite right, and genericism doesn't fully animate what the public domain story lends to the underlying good.
Instead, I'm thinking in terms of extending the aesthetic functionality doctrine to cultural elements. Trademark needs a doctrine to deal with the use of fairy tale princesses as trademarks or brands.
Betsy: Aesthetic functionality is what Tyler Ochoa suggested to me instead of genericism as the solution to the Sherlock Holmes problem. I want to make a push for genericism (I'm glad you didn't go to descriptive). You are right - it's not descriptive for dolls, but it is the generic descriptor for the character. You can't call Sherlock anything other than Sherlock, and you can't call Cinderella anything other than Cinderella. We use nominative fair use to deal with it on the infringement side, but we should have to. Here, the term Cinderella is generic for what the product represents. AF is a poor fit: oxymoronic, and it seems to ask whether we buy something because it is pretty / attractive.
Deborah Gerhardt: Perhaps we need a public domain for characters like these.
Ann Bartow: Is this like copyright title, where you don't get protection in titles? [Jake: trademark handles title differently, for books - no protection for a single book, but protection for a series of books (Harry Potter & ___) or magazines.
Ed Lee: I would prefer a more full-throated defense of the public domain created by the copyrighted work aspect. You could try to recapture a trademark public domain - what's the proper boundary of a copyrighted [cultural?] character in the public domain. [JL: Is this then a Dastar problem - no trademark protection because the character as cultural artifact in doll context belongs in the copyright bucket, and protection has expired?]
Laura Heymann: You may benefit from disaggregating the individual aspects of Cinderella and her characteristics. United used Rhapsody in Blue - the fact that it's in the public domain doesn't necessarily mean it cannot have some trademark function, so more careful pulling apart may be valuable.
Deborah Gerhardt, Trademarks, Core Values and Cultural Leadership
A trademark may represent core values around which a community can coalesce. When you look at a brand community, what values does it have? Is the communal identity potential harmed by dilution, for example?
For example, brands are now pressured to make a stand on cultural issues. Target, for example, acted to restrict open gun carry in its stores. Here the brand is used as a tool for political reform. PayPal refused to bring in a business center in direct response to North Carolina's HB 2.
To have a mark strong enough to support a dilution claim, perhaps some identifiable core value is the minimum. If so, dilution harm is a disruption between the core value and the ostensibly diluting use. Goldfish crackers with marijuana - there may be disruption between core values and the brand. Louis Vuitton parody toy handbags? No disruption of the core value, merely playing with the core value. [JL: If that's right, is this anything more than a parody non-parody analysis? Not clear to me.]
Andrew Gilden: Does your "core values" require a popular political stance, or cultural buy in? If the majority turns in favor of equality, is this really a "core" value.
Deborah: Imagine that someone else had interfered with Ashley Madison's ability to signal its core value of secrecy and discretion. That might be a core value that the majority of Americans doesn't "value," but it at the core of Ashley Madison's brand identity.
Andrew: What if Christian Mingle tried to adopt an abandoned Ashley Madison brand.
Deborah: Sometimes core values are forged in crisis.
Seagull: Core values, under your definition, seem like they must be shifting.
Laura Heymann: Do you need to distinguish between value and core attribute?
Cathay Smith - Intellectual Property in Internet Folklore
Are there protectable rights in internet folklore? My project looks at the evolution of Slenderman, his propertization, and the coming movie, to investigate this question, and ask who is benefitted and harmed.
The character first showed up on the Something Awful website, in an image posted by Victor Surge. At first, people posted their own "sightings" of Slenderman without claiming any ownership of the character. But as the character has become more popular, parties have begun claiming ownership rights. At least two short films posted online were taken down after receiving a takedown notice. But the provenance of the ownership is uncertain. The claims lead to a chilling effect.
Is there ownership in Slenderman? Cathay argues no - Slenderman as we understand him wasn't fully developed with the first Victor Surge posts, but collectively as he became popular. She also argues factual estoppel - if the author(s) claim Slenderman is a real person and posted sightings are factual, then copyright claims might be estopped. Rights in the name of the title / name are also weak, under Rogers v. Grimaldi.
Normatively, property rights seem unjust. The Hollywood blockbuster isn't giving back to the community. This is also a nice example of chilling effects. In addition, propertization runs counter to community norms and ethos.
Ed Lee: Copyright might be a bad fit. Perhaps attribution, as a sui generis right, should be respected.
Cathay: Do you mean giving rights to the community, or preventing propertization of something created by the community.
Ed Lee: There are a range of options. I mean something more unleashed / free than standard property rights.
Lisa Ramsey: This reminds me of the orphan works problem - who is the owner? There are also joint works problems. So under current copyright doctrine, if people are fixing individual images, those seem independently protectable. Are the derivative works, derived from what version of the character, and if so, can you get protection in them?
Q: Is this character just a standard bogeyman? How much of this is really new? [Lisa Ramsey: Scenes-a-faire]
Seagull: Might we get something from creative commons analysis.
Q: Other commons uses of musical communities might also be valuable to consider.
IPSC 2016 First Plenary Session
Thanks to Rachel Sachs for the following summary of the opening plenary session at IPSC! The following papers are summarized, and Q&A recounted, below the fold.
Scarcity of Attention in a World without IP
What’s In vs. What’s Out: How IP’s Boundary Rules Shape Innovation
Mark McKenna & Christopher Sprigman
What We Buy When We “Buy Now”
Aaron Perzanowski & Chris Hoofnagle
Jake Linford: Attention Scarcity in a World without Copyright
The standard account of copyright is that we have it and impose artificial scarcity so that artists can recoup their sunk costs in creating information. But the costs of creating/disseminating information have fallen, and some argue that maybe we should narrow copyright as a result.
This paper argues that narrowing copyright for this reason may be too hasty! It does so by introducing a complicating wrinkle: attention scarcity. The cheaper it is to disseminate information and the more information we get, it may create information gluts. Information gluts can impose costs on consumers, including consumers of copyrighted expression. And the competition for scarce attention is often a zero-sum affair, in which competitors benefit by using copyrighted expression (some of which they don’t pay for and thus use impermissibly) to attract and manipulate scarce attention. As such, some calls to reduce copyright protection may worsen these problems of attention scarcity and information gluts.
Linford does consider the possibility that less copyright protection is better for attention scarcity. What might happen if we reduce copyright protection? One option is that we have less entry. If we have narrower protection then there’s less incentive to enter, but then at the same time there are lower “expression costs.” With copyright retained, you have a relatively higher incentive to create, but you also have higher expression costs. Linford’s concern is that lowering protection might result in less creative or distinct entry, things that are more similar to each other, which is duplicative and results in wasteful racing to capture the first-mover advantages for derivative works. Here, Linford relies on recent work by Joe Fishman (Vanderbilt) arguing that constraints imposed by copyright can sometimes push creators to be even more creative, work that is supported by recent psychological research.
Lemley question: It turns out that crowdsourcing is at least as good and maybe better than expert selection in helping us separate good from bad creative works. So yes, if twenty people make a derivative Star Wars movie, the crowd is good at telling us which is good and bad. Are we really worse off?
Linford: One key danger is that Lucas has to rush out The Empire Strikes Back to compete with those twenty derivative movies, and we may be concerned about the effect of that pressure.
Betsy Rosenblatt: We live in a world where trends are pervasive, even in a world with heavy copyright. One successful horror film leads to twenty more mediocre ones. People tire of sameness. The solution doesn’t seem to be “stop the trend from happening,” it seems to be “let the trend run itself out.” Information scarcity may not create the problem/solution set Linford is describing.
Linford: Thinks what’s more likely is that trends will purge themselves by, instead of having 20 horror movies that pick up the tropes of the genre, you end up with 20 more identical horror movies. The more you narrow it, the more similar those interpretations are.
Central question: What sorts of things are sorted into the utility patent system rather than design patent, copyright, or trademark law? This matters for the current utility patent debates over patentable subject matter but more importantly for the tructure of the system overall. Copyright, trademark, and design patents all have doctrines designed to exclude useful or functional matter on the grounds that such matter is the proper domain of utility patent law. They define themselves in opposition to utility patent law. They all police the boundaries differently, and with different levels of rigor. They don’t do it because the material doesn’t otherwise meet the requirement of those systems – functional material may still indicate source (trademark) or have expressive content (copyright) – but they do it because we think it’s the domain of utility patent law. Mark & Kathy STrandburg have called this the Utility Patent Supremacy Principle. This only works if the other systems have a reasonably clear view of what belongs to the utility patent system.
However, in their view the sense of utility patents deployed in other areas of IP is quite reductive and intuitive, and lack of a clear sense of patent law’s boundaries creates problems both for patent law and these other fields. It’s especially hard to apply when utility patent eligibility is in flux, as it is now. Patent law itself has an inconsistent sense of its own grounding – what counts as technological innovation?
Conundrum: there’s a widespread belief that utility patent law focuses on technological innovation, but in practice that’s inconsistently enforced. Yet all other areas of IP act as if there’s a clear sense of what utility patent law is about (technological innovation) and that other areas of IP should defer to utility patents in that area.
Provides as an example the Varsity Brands case, decided by the Sixth Circuit and scheduled to be heard at the Supreme Court this upcoming term. What divided the appellate opinions in that case was their assessment of functionality. For the majority, the chevrons on the cheerleader uniforms just served to cover the body. But for the dissent, the function is to identify the wearer as a cheerleader. And in that chase, the chevrons are not separable. But if the function is just to cover the body, chevrons are separable and thus copyrightable. This case turns on the definition of functionality and what kinds of functionality the courts are supposed to keep out of copyright, which is undertheorized, as they’ve been arguing.
Linford: What’s the right answer in terms of which way should we push the doctrine?
McKenna: The paper is mostly diagnostic, it’s not prescriptive. The primary point is to identify a paradox at the heart of the system, if you think of the various forms of IP as a cohesive system. We don’t have a particular answer yet.
Ouellette: Where do you think this causes the most difficulty? Overlap may not obviously create problems.
McKenna: Overlap does create some problems, makes it more difficult for people to know what the bounds are of permissible conduct and expression. The accumulation of rights is a problem at least some times for overprotection. When we think about what kind of fair use rights we want to give, as an example, we don’t account for the possibility of overlap.
Sprigman: Some things will end up being protected in multiple ways, but some things won’t end up being protected at all – patent law may kick things out on grounds of novelty or non-obviousness, but other fields will kick it out as being functional.
Janet Freilich: Patent Clutter
Patent claims point out and distinctly claim the invention, and they’re often thought to be shorthand for and synonymous with the invention. But there are few empirical studies of these claims. This study asks whether claims are really only about the invention, or whether claims do a lot more than just point out the invention. The method she uses is to look at whether language appearing in the claim language also appears in the specification. We should care about this because if something in the claim isn’t discussed in the specification, it’s unlikely to be new or used in a new way, or alternatively it may fail the enablement or written description requirements.
Freilich finds that a great deal of claim language (roughly 25%) appears rarely or never in the specification. An average of 9.4% of claim words appear nowhere in the specification, 8.3% appear once, 7.5% appear twice. She calls this non-inventive language, and about 90% of it appears in dependent claims. Patents that have more non-inventive language have fewer forward citations and it’s less likely that the patent is maintained, two common measures (though imperfect) of patent value. Her theory is that language in the claims but not the specification is not part of the core invention of the patent.
Freilich considers limitations of her study. For instance, her methodology can’t account for drawings. She also can’t account for genus/species discussions.
Why do patentees do this? There’s an information transmission functions for the patentees. It may also serve a decoy function – competitors may not be sure what you’re planning to do with an invention. It might help to avoid rejection during prosecution. And it might provide insurance against future commercial uncertainty or litigation.
Freilich argues that some of these claims may not satisfy the enablement and written description requirements. There’s also a clarity difficulty here. Claims are already hard to read – non-inventive language makes claims more difficult to read even, especially because the additions by definition are not defined in the specification. Examiners also report struggling with non-inventive language, making their jobs harder. It also makes patents hard to search, when you use keyword searches (a lot of false positives). It may also create the illusion of a patent thicket in an area.
Ultimately, Freilich urges us to think of claims as very complicated and doing more than just describing the invention. It opens up questions like what does the ideal claim look like? There is a tradeoff between precisions and concision. It may not be practical to get rid of all of this, but some of this is clearly problematic.
Fromer: Troubled by the assumption that what’s in the claim language is the only thing that relates to the invention. The specification is frozen at the time the patent is filed, but claims may be amended throughout prosecution. Without looking at the original claim language, it’s difficult to make these kinds of conclusions. More generally, there are many ways to express something and often in practice the specification is more heavily written by the inventors, while the claims are written by lawyers. It doesn’t mean it’s not inventive, just that different people write something in different ways.
Freilich: This is not a precise proxy, but in general patent prosecutors try to ensure that what’sin the claims is reflected in the specification. And she does have some data on claims as proposed versus
granted. A good amount of patents add non-inventive language during prosecution, but others take it out or remain the same.
Vishnubhakat: What you describe as non-inventive language could be language in the claim and simply be what the inventor regards as her invention. If you have it in the claims and not the specification, it could be ill-enabled and described but still satisfy novelty and nonobviousness. So the finding that 9.4% of words never appear in the specification suggests that if this is a story about people who are inventing things and not describing well enough to claim the full scope of the invention is that they’re leaving claim scope on the table, and that seems consistent with a finding that about 10% of patent grants are first-action allowances where there’s not a back-and-forth between examiners and patent applications.
This project builds on a big question: what does it mean to own something? What does it mean to buy something? The now-famous Amazon 1984 case is a big example of why this is a difficult question. Some people look at this and say that consumers understand that they’re buying a license to something, not a copy of it. Perzanowski has never heard a consumer say this. Perzanowski & Hoofnagle set out to understand how consumers perceive this language.
They created a fictitious marketplace and surveyed almost 1300 consumers and asked them about what the “buy now” language means. They screened consumers to be sure that they were all in the market for digital books, music, or movies, and ensured representativeness – pretty close to census data on nearly all metrics. They sorted them into three categories. They saw a page for an ebook, an mp3 album, or a digital movie. Each respondent could also choose between different titles within those media forms. Look at the ebook category as an example. Some people got the “buy now” button for a digital item, some people got “buy now” for a paperback copy, some people got a “license now” button for a digital item, and some people got a little notice about what they were permitted to do with the digital item they were paying for.
Key findings: 1. The “Buy Now” button misleads a substantial number of consumers about the rights they acquire in digital media. Substantial numbers of people think they can lend, gift, or devise these copies by will. The number of people who think they “own” a product drops significantly between people who saw “buy now” or “license now,” although the “license now” group still had a high percentage of people in the lending and gift categories. Many subjects, though, chose “don’t know” in the “license now” group.
2. Those misperceptions are material to consumer decision making. More than half of the respondents would pay more for digital goods that enabled lending, reselling, or using device of that choice, and respondents said they would prefer to retain those rights. And many consumers said they were more likely to download things illegally or stream them if they didn’t have those rights.
3. Replacing the buy now button with a short notice explaining the rights coming with the copy significantly reduced misperceptions. The short notice group seeing the ebook shows significant reductions in the owning, lending, gift, will, and resale categories. However, this wasn’t true for the digital movie group.
Goldman: I wonder if you can tell a different story from the data, which is that it’s really hard to educate consumers. You can still argue that most consumers aren’t getting the message even in the short notice group. What is the best way to educate them?
Perzanowski: Keep in mind that these people had precisely one exposure for ten or fifteen seconds to the short notice. He’d imagine that with repeated exposure you might see those results increasing more. Further, he’s not a professional user interface developer, and someone who has expertise in this might be able to improve it. It’s a promising avenue for improving consumer understanding but more work needs to be done. What we might see is instead of consumers learning is that they don’t bother to read it, which is the opposite of what we’d hope for.
Liveblogging the Intellectual Property Scholars Conference - 2016
Today and tomorrow (August 11 - 12), it's all IPSC, all the time. If you are at IPSC, send me your summary of the panel you attend, and I will post it here on Prawfsblawg. I will post links to posts about specific panels in the comments to this post.
Scholars are also tweeting using the #IPSC16 hashtag, so you can follow along there on Twitter.
Wednesday, August 10, 2016
Florida congresswoman is anti-Trump, does not know Florida law
Florida congresswoman Ileana Ros-Lehtinen said yesterday that she would not vote for Donald Trump for President, but instead would likely write-in Jeb Bush (since she also cannot support Hillary Clinton).
But it will not be that easy. Florida law does not automatically provide a write-in space for an office, but only if one or more people qualify as write-in candidates. And then a voter only can write-in the name of that qualified candidate, not some random person; writing in a random name results in an invalid vote. I do not know whether anyone has qualified as a write-in in Florida, but presumably Jeb! has not bothered. So Ros-Lehtinen's planned move would result in an invalid vote for President (which she may not mind, if he goal is just to make a point by not voting for either of the main named candidates).
How do I know all this? Because four years ago, I wanted to use a write-in so I could vote against Ileana Ros-Lehtinen for Congress. She ran unopposed, so there was no named candidate to vote for. But since no write-in candidate had qualified, I did not have that option, either. In fact, the office did not appear on the ballot at all, also depriving me of the option of a symbolic non-vote).
Fees & Your 403(b) Retirement Plan
After my last post on fees, you may be wondering about the feel levels in your defined-contribution retirement accounts. Many faculty no longer receive defined-benefit pension plans. Instead, universities and faculty contribute to a retirement account under the partial control of the faculty member. I say partial control because most 403(b) retirement plans only allow faculty to pick from a limited menu of options. Many people struggle to make optimal choices in this context for a variety of reasons, including, poor plan options, lack of expertise, an inability to invest elsewhere, and other reasons.
The New York Times has an article discussing a new lawsuit over fees in academic retirement plans. The suit alleges that faculty at M.I.T., N.Y.U., and Yale paid excessive fees because their universities failed to monitor the fees extracted from their defined-contribution retirement plans:
The complaints allege that the universities, as the plan sponsors, failed to monitor excessive fees paid to administer the plans and did not replace more expensive, poor-performing investments with cheaper ones. Had the plans eliminated their long lists of investment options and used their bargaining power to cut costs, the complaints argue, participants could have collectively saved tens of millions of dollars.
Some thoughts on what faculty might do to limit problems after the jump.
If you don't know how much you're paying in fees for your retirement plan, you're not alone. An AARP survey found that 74% of retirement plan participants don't know how much they pay. So, how much is too much? Larger plans can generally achieve lower fees. Plans with $500 million or more in assets average about .37% in fees. If your fees are high for the size of your plan, the Wall Street Journal has advice for lobbying internally for a change to achieve lower fees. You might also want to quietly point out that switching to a more efficient plan could reduce the university's litigation risk.
Tuesday, August 09, 2016
The Stanford Live-Blogging Experiment
This weekend, August 11-12, Stanford Law School hosts the Intellectual Property Scholars Conference. My colleagues and I will present 146 papers in two days. That requires concurrent tracks, and I inevitably miss hearing some brilliant scholars present interesting projects. I'm going to use my platform on Prawfs to contribute to the solution: I'm live-blogging the panels I attend. You can follow along here this weekend.
I didn't invent live-blogging at academic conferences; I assume Rebecca Tushnet did. At a minimum, she's a prolific live-blogger, and I expect she'll provide excellent summaries of those panels she attends at IPSC. But Rebecca and I can't cover every panel. That's where you come in. If you are attending IPSC, you can send a summary of the panels you attend to jlinford(at)law.fsu.edu, and I will post them here on Prawfsblawg. With your help, we can cover every session.
In addition, if you plan to live-tweet IPSC 2016, send me your twitter handle, and I'll post it as well. I'll do some IPSC-related tweeting @LinfordInfo, and I expect to see frequent updates from @scholzlauren and others.
Attorney advertising as jury tampering
While at Amelia Island for SEALS over the weekend, we caught a TV ad for a personal-injury lawyer. The entire ad focused on the legal rule prohibiting juries in personal injury cases (the ad focused on automobile accidents) from learning that the defendant has liability insurance. This is a common law rule in Florida, codified in the Federal Rules. The ad argues that juries are too sympathetic to, and thus unwilling to find against, defendants in these cases, erroneously believing, because they lack this one piece of information, that finding for the plaintiff will impose crippling liability on a powerless individual. The ad announces that almost all drivers have insurance and will not bear the cost of civil judgment, which instead will be borne by the big, bad insurance company. And it urges viewers to "spread the word" about the state of the law. Presumably, although only implicitly, these are cases in which the evidence otherwise shows that the defendant should be liable, and the plaintiff loses because of this misplaces sympathy. Of course, it ignores the flipside concern--a jury imposing liability against a defendant despite the evidence, believing an adverse verdict is "costless" to the insured defendant.
I am being tongue-in-cheek about calling the ad jury tampering. I believe it paints with too broad a brush, unconnected to any case, geographic, or potential juror (although I welcome the correction if jury tampering can be defined more broadly). Nevertheless, we can wonder about the ethics of an attorney "spreading the word" to the public about something they are not supposed to know as jurors and encouraging them (even if not explicitly) to use something they are not supposed to use as jurors.
This reminds me of a controversy that cropped up in the '90s, where people in parking lot or sidewalks outside courthouses gave potential and actual jurors information about the power of nullification.
Practice your talks--with dogs
One of the worst parts of attending conferences, workshops, etc., is sitting through the obviously unprepared presentation. Speakers meander, repeat themselves, run over time, race through the final points because they wasted too much time getting started, etc.* There is a tough balance to strike. You do not want to sound overly rehearsed or as if you are reading the paper (although that is the norm in many fields, such as English). But you want to be coherent and stay within the time limits. And that requires that you practice the talk with a timer and tweak as you must.**
[*] Not for nothing, I find these problems--especially the last two--exacerbated when the speaker uses PowerPoint.
[**] This is especially true for job talks, but it applies to any presentation.
So I liked this story about a program at American University's Kogod Center for Business Communications, which provides dogs as an audience for students (especially those anxious about public speaking) to practice presentations. The dogs have a calming influence; the students practice before a non-judgmental audience; and the students have to work a bit to keep the audience attention (the director of the study says a dog is no more distracted than the typical college student, which might not be untrue). The accompanying video is after the jump.
My dog better be ready to sit through some talks in the coming years.
Monday, August 08, 2016
Fragmented Financial Advice & Fees
In an earlier post, I mentioned that the term financial adviser lacks any real meaning. If you want to know the risks and likely biases of a particular financial adviser, you'll need to look behind the business card. For the retail market, the person identifying as a financial adviser is likely a stockbroker, registered investment adviser, or insurance salesperson, or some combination of the foregoing. A single financial adviser may even wear all three hats with one customer at the same time, depending on the accounts at issue. This makes it difficult to track what duties a financial adviser actually owes in a particular context. Making it more complex, the fragmented regulatory structure means that this single financial adviser may have three different primary regulators, FINRA, the SEC, and state insurance regulators.
In some circumstances, a self-serving financial adviser may shuffle unwitting clients though these different roles in a series of transactions and arrangements that maximize the financial adviser's compensation. For example, a financial adviser may begin working with a particular client while wearing a stockbroker hat and receiving compensation tied to inducing transactions. First, adviser recommends a number of higher-fee mutual funds such as front-loaded A Class mutual fund shares that cost 4% up front and 1% in ongoing fees each year. While these funds will assuredly underperform the market, they do put immediate cash in the financial adviser's pocket. After this first conflicted recommendation, a financial adviser may not be able to justify more transactions without irritating the firm's compliance personnel. After a year or two, the financial adviser may pitch a new account type and move to collecting a fee on the basis of assets under management, say 1.5%, by switching hats and "servicing" the client as a registered investment adviser. Because it's awkward to badmouth the funds the adviser initially sold, they'll probably sit in the account, bringing the total fees paid to about 2.5% annually. See what these fees can do to a portfolio after the jump.
High fees ruin returns. Consider the differences in return for investing a $100,000 inheritance over 20 years. Vanguard sells an index fund that charges 0.05% to track the S&P 500. Over 20 years (assuming 10% returns to match average returns since 1970), this would grow to $666,054. If you buy a mutual fund focused on S&P 500 companies and then layer on an investment advisory fee for a total fee level of 2.5%, you're going to have a different retirement scenario with $405,458 in savings. You will have paid out over $115,000 in fees. That is $260,596 less in the end than what you would have if you weren't paying 2.5%. (If you threw in that extra 4% commission for the first year and only paid 1% in mutual funds fees for the first two years, you come out with $401,309 after twenty years.) Many mutual funds charge even higher fees, sometimes running to 1.5% or more, making it possible for retail investors to have total fee burdens of over 3%. It's a great deal for the fund managers and financial advisers.
Maybe those assumptions seem a little far-fetched to you. Who knows if we'll see 10% returns over the next two decades? I certainly don't have a crystal ball. Still, running these numbers isn't hard and low fees should beat high fees over time. You can use a calculator from Bankrate or FINRA's Fund Analyzer to look at possible futures with different assumptions, such as only 5% annual returns or a shorter number of years. You can even take the mutual funds in your own portfolio and race them against their benchmarks.
On the whole, far too many pay far too much in fees because of conflicts of interest and because the market for investment advice isn't particularly competitive. The White House released a report in February 2015, estimating that Americans pay about $17 billion dollars a year more in fees because of conflicts of interest. That's a significant amount of money and means that many people will run out of retirement money much sooner than they would have if their savings hadn't been diverted away to financial intermediaries.
This isn't to say that financial advisers don't deserve to be paid. If they're providing a valuable service, you should pay them a fair amount. Sadly, many people don't realize how much they're paying or even how they're paying for advice.
Sunday, August 07, 2016
MarkelFest! at SEALS--Tonight
We will continue the SEALS tradition of holding a MarkelFest! happy hour at SEALS. Come drink, catch up, watch the Olympics, and remember Dan. It will be at 9 p.m. on Sunday (this evening), August 7, in the Seaglass Lounge at the Omni.
Hope to see everyone there.
Friday, August 05, 2016
Thanks to the prawfsblawg powers that be for allowing me to bloviate over the past month. It’s been an eventful month, in terms of news (and for me personally my computer crashed (so I was offline for part of the month) and then I started off on a road trip.) This is my last post until (if) I get invited back.
I’ve been driving across the country from California to St. Louis to start a year visiting at Washington University in St. Louis, and while I’ve been driving I’ve been listening to podcasts. Three in particular: Criminal; Invisibilia; and Revisionist History. The one that most disappointed me was Criminal, hosted by Phoebe Judge and produced by Lauren Soper. It’s got great production values, and it pick interesting, sometimes “torn from the headlines,” sometimes offbeat topics. So I really should like it. But I don’t, and here’s why: it stops right at the point you want the story to start.
The one that made me somewhat angry was the third episode about Manhattan and Brooklynites faking $20 bills and passing them off in dark bars and nightclubs until one of the protagonists get caught. It is clear from the descriptions that the two counterfeiters are white and comfortably middle class, college educated types. There is an interesting description of them and their scheme, and one of them getting caught. At which point, the host asks “How did it feel to be a criminal.” And the criminal replies that she *doesn’t* feel like a criminal. And then, instead of exploring *this* fact—that she is wrong and that she is, objectively a criminal (morally, legally, and in every way except her own self perception); that she has impoverished the people to whom her notes (140 dollars worth per night of crime spree-ing) were passed; that there seems to be an issue of privilege here—class, race, and gender privilege (she was part of a male/female crime conspiracy, and the conspirators established that she was the one least likely to get caught); and so on. How could the interviewer…Just. Stop. There?! Ugh.
Am I wrong about Criminal? Are there any podcasts we criminal professors, or law folks in general, should be listening to? I’m planning on walking to work, and I listen to podcasts as I walk. I’ve also listened to Criminal (In)Justice with David Harris, Serial (how could one not); and The Center for Court Innovation podcasts. What other treats await?
Thursday, August 04, 2016
What type of voter fraud?
In setting up his pre-narrative of a stolen election, Donald Trump has decried recent lower-court decisions declaring invalid voting laws in North Carolina, Wisconsin, Kansas, Texas, and North Dakota, including voter ID requirements. These laws were designed to prevent impersonation fraud--someone voting as John Smith who is not, in fact, John Smith.
But note that Trump has not been complaining about impersonation fraud, but about repeat-voter fraud--"If you don’t have voter ID, you can just keep voting and voting and voting." (Chicago's old "Vote early, vote often"). But voter ID laws do nothing to eliminate repeat-voter fraud and do not seem designed to do so. The defense against that practice is the voter list; the poll worker does not allow someone to vote if she is not on the list (or allows only a provisional ballot) and she crosses the voter's name off the list once that person appears. Repeat voting is possible only if: 1) the poll worker fails to cross the name off or 2) the voter goes to other precincts, where she is not on the list, to vote. But requiring ID does not stop that practice. If the poll workers are not vigilant, I can repeat-vote to me heart's content with an ID, just as I could without an ID. That is, if I show an ID proving I am John Smith but the poll worker does not cross my name off the first time, I can come back again and again and vote as John Smith, showing my ID each time. Similarly, if I then drive to the wrong precinct with an ID proving I am John Smith but the poll worker allows me to vote despite my name not being on the list, I can cast that repeat vote as John Smith, showing my ID.
Unfortunately, most of the news reports of Trump's comments have repeated the (true) line that there is virtually no evidence of in-person voter fraud, without specifying that the fraud Trump is talking about is not even the type that ID laws are designed to redress. Which, also unfortunately, means the news reports are missing the fact that Trump is not aware enough to understand his own conspiracy theories.
Liberal Bias in Legal Academia?
I'm not sure I need to build my liberal cred being a minority, a first generation immigrant, a New Yorker, and a woman, but I will anyway. I campaigned, donated, and voted for Obama twice and have probably voted democratic in very national election I have been able to to vote in. I'll (unhappily) vote for Hillary, and so will my entire family (though my parents really did like Bernie during his run). In fairness, I was President of the Young Republicans in high school, voted for many Republicans while I lived in New York City (to create some political balance), and am a registered Republican in the state of Utah where I live, since it is a heavily Republican state with a lot of strong Republican candidates and I want to be able to attend the primary elections and have a say in who my local leaders are.
That said and my leanings somewhat clear to you, I am writing this post about what I see as potential liberal bias in the legal academy. This post poses several questions that are intended to be thought-provoking rather than damning to academics or prescriptive on some sort of solution.
According to a recent op-ed by Nicolas Kristof of the NY Times, there is ample evidence that the vast majority of academics are liberal. I am not sure the same data has been shown in the legal academy, but I would not be surprised if it is too far off. Kristof cites four studies that show that Republicans in the humanities are in the minority at between 6-11% and in the social sciences between 7-9%. A sociologist, George Yancey, conducted a survey in which 30% of academics said they would be less likely to support a job seeker if they knew that person was a Republican. The bias is even worse for evangelical Christians, where in the same survey 59% of anthropologists and 53% of English professors would be less likely to hire someone if they knew he was evangelical.
Michael Bloomberg addressed the Harvard graduating class in 2014 and discussed liberal bias in his talk. He pointed out the irony of the political shift over time, "In the 1950s, the right wing was attempting to repress left wing ideas. Today, on many college campuses, it is liberals trying to repress conservative ideas, even as conservative faculty members are at risk of becoming an endangered species. And perhaps nowhere is that more true than here in the Ivy League." Indeed, this is probably worse in the Ivy League than in other places. In the 2012 presidential race, according to the Federal Election Commission, 96% of all campaign contributions from Ivy League faculty and employees went to Obama.
I've heard some of this in the past, and thought, so what? Maybe academics are just smarter than the average citizen (this is certainly biased too) and so what if they are more politically aligned with the left? Maybe the Republican party needs to change in order to capture more academic values (whatever they are)? I definitely think there may be some validity to this argument, but I think there are problems with the current system.
For one, censorship of conservative speakers has been a prominent problem in the last few years. Conservative speakers have been uninvited to speak at Johns Hopkins, Brandeis, Haverford, Rutgers, Smith, Swarthmore and many other universities simply because some students did not agree with their message. This censorship may also demonstrate a certain homogeneity of thought among academics that could be dangerous. If we pride ourselves in being open to all ideas, examining principles carefully and trying to come to the "right answer," it would be more fitting if we were open to a broader range of ideas, rather than the ones that were approved as a majority view.
And more on a personal note, I've had colleagues who have been nervous about their job talks seeming too "conservative", being ashamed that having clerked for a conservative judge (who they may not have agreed with) has created a scarlet letter for them in academia, going through lengths to hide their religious affiliation, and most depressing of all, having not written about topics they have researched about for fear that they didn't fit with the liberal norms of their faculty.
Just two quick anecdotes from my own research that I hope many of my colleagues do not share experience with. In one study I did with an economist early on in my career, we discovered (in looking at bail and violent crime) that when released on bail young black men commit more violent crime than any other age group, race, or gender, and preventatively detaining them before trial would cut down on a lot of violent crime. I would never advocate this due to constitutional prohibitions against race-selective detention, and other moral and philosophical problems with this concept. The thing I want to highlight though is how nervous I was about this finding. My coauthor and I didn't know what to do with this. We felt racist finding it, we were nervous to highlight it in our paper (and didn't), and I didn't want to let it even influence my opinion or future work. But why? Shouldn't knowing that a certain subset of the public commits a massive disproportion of violent crime be important to me as an empirical criminal law scholar? Do others in my field deserve to know this? Could this not necessarily help make America safer if we tried to understand the root of this statistic?
I had a similar experience when I looked at whether judges were "racist" in their bail determinations and determined (surprisingly) that they actually weren't detaining enough black people if their focus was on preventing violent crime. This finding as well I massaged and explained in a way that would not make me seem like a racist or conservative or someone speaking out of the norm. I never hid the finding or misrepresented anything, but I hated feeling that I couldn't just state the facts of what I found empirically without worrying about the perception of how I would be perceived by my colleagues. I don't know what to make of these experiences. I worry that I may have an implicit liberal bias that may be getting in the way of helping me to be objective and find truth. And I worry that it is not just me that may feel this from time to time.
Fellow academics, I would love your feedback and thoughts on this issue.