Monday, October 01, 2018
Thanks to our September visitors. For October, we are joined by returners Eric Miller (Loyola-LA) and Emily Gold Waldman (Pace).
And a reminder that we are always looking for visitors, so please reach out to me if you are interested in joining us for a month.
Monday, September 03, 2018
Note to PrawfsBlawg readers: Appearance of comments
A note to readers and commenters:
Comments to posts now appear newest to oldest. We did this to accommodate our annual faculty hiring post and our semi-annual submission post. Both posts generate hundreds of comments, requiring readers to scroll through multiple pages to read new comments. The old hack for this problem--a jump link--no longer works and Typepad recommended this as the solution. So this is the workable solution--new comments appear immediately below the post.
Unfortunately, we only could make the change globally, so comments must appear this way for all posts.
This format is necessary while the hiring and submission threads are alive and active, which should be another few months. After that, we will evaluate the appearance and decide whether to keep it or switch back. We already have heard from one reader who describes it as "crazy and moronic," so we will take that under advisement.
Saturday, September 01, 2018
Thank you to our summer-long visitors, who joined us for July and August.
With September upon us, welcome back to Jennifer Bard (visiting at Georgetown's O'Neill Institute and Harvard's Petrie Flom Institute), Oren Perez (Dean at Bar Ilan), and Margaret Ryznar (Indiana-Indianpolis).
Sunday, August 12, 2018
Further Reflections on the End of Ambition
Almost exactly three years ago, on the last day of my guest-blogging month, I posted a piece entitled The End of Ambition. Sometimes I go back to what I wrote long ago and cringe (I was tempted to link the piece that most makes me cringe, but nah) but this one I like. It started as a contemplation of what it's like to face the end of your career and turned into a broader assessment of what it means to grow up, to be an adult (something we've recently explored in connection with law students).
Well, here we go again, except now I'm 1000000 (Aside #1: as my friend Raffael Cavallaro said, "there are 10 kinds of people in the world, those who understand binary and those who don't") and looking pretty good for 1000000. (Aside #2: if horses ruled the world, "digital" really would mean "binary".) But when you hit 1000001, you hit the normal age for filing for Social Security, and at 10000110 you have maxed out on the value of deferring your benefits. (For those of you who have many years yet before this becomes an issue, it involves the uncomfortable evaluation of how long past 10000110 you and/or your surviving partner think you will make it. The longer the period, the more sense it makes to defer.)
What prompted the re-reflection is being on this blog extensively at the same time the "submission angsting" and "hiring committee" posts have gone up, and my recent pontifications (sparked by Kaci Bishop's article) on fear and failure. What I want to do here, from the perspective of one who has achieve the ripe old age of 10 to the 110th power, is link fear and failure to ambition. My thesis here is that there is a continuum of ambition from the macro to the micro, and our brains don't do a great job of making that clear, hence causing our nervous system to spit out fear of failure juice in many of the wrong places.Here are prototypes of macro ambition: getting hired as a tenure-track law professor or being awarded tenure. Placing law review articles have a lot to do with both (so it seems). I do very much understand macro-ambition. My school and professional lives were a continuous series of them - grades, class standing, university admissions, law school admissions, getting a law firm job, making partner, getting the in-house job, becoming the GC. I've said this before - when you attempt to break into academia and then climb the tenure ladder as a superannuated newbie, the actual consequence of failure is, I think, less significant in one's life than if you start out young. I think there is also a lower fear factor - and thus more willingness to swing for the fences. (By the way, it's been around for well over a decade now, but you can find that particular story in Memo to Lawyers: How Not to "Retire and Teach".)
Here is my prototype of the micro-est of micro ambitions. When you get to be 1000000 and you worry about the increasing number of senior moments, you do things to assure yourself that you aren't losing it. One of mine is doing the New York Times crossword puzzle every day. Monday and Tuesday are too easy, so I do them online and see how fast I can complete them. Wednesday through Sunday merit printing them. I do them in ink and my goal is not to make a mistake. I can annoy my wife no end by finishing the Saturday or Sunday puzzle perfectly and then proudly displaying it as though it is actually some kind of meaningful accomplishment.
Now some people never stop having and acting upon macro-ambitions. Joe Biden is thinking about running for President, I'm pretty sure. I am in the process of coming to terms with the end of mine. (Trust me, I had them and could tell you stories.) What I'm thinking now is that there isn't really an end of ambition. It's just that most of the macros get taken over by the micros. Not going to be a CEO. Not going to be a university president. Not even going to be a lateral hire. It's now a bucket list. Yeah, it would be cool to place an article in the Yale Law Journal. It won't make a helluva big difference to anything, but it would be another thing to check off, somewhere between doing the Saturday puzzle completely correct in ink and being President.
The thing is the fear. I've already admitted publicly that I have the typical type-A failure dreams. I'm not sure which is the chicken and which is the egg - ambitious goals or fear of failure - or if maybe they are the same thing. But it has made me think about Woody Allen's observation on this in Annie Hall: "You know, a guy walks into a psychiatrist's office and says, hey doc, my brother's crazy! He thinks he's a chicken. Then the doc says, why don't you turn him in? Then the guy says, I would but I need the eggs."
Woody was talking about relationships, but I'm talking about fear of failure. I still get slightly (not pathologically) annoyed at myself for screwing up the crossword. If you lose the fear, do you also lose the ability to achieve whatever it is you want to achieve?
UPDATE: I corrected my age from the original posting (h/t Dean Andy Perlman). I am 1000000, not 100000. When you get to 1000000, it's hard to see all those zeroes. Another damn failure! There goes the brain again, releasing those fear of failure juices.
Monday, July 16, 2018
There Is Nothing New Under the Sun - Xenophobia Edition
Part of this is recycled from something I posted (can it be?) on Christmas Day, 2007 over on Legal Profession Blog. At the time it was a tribute to my wife Alene's grandfather, Nathan Milstein, one of the longest serving lawyers in the history of the Michigan bar. (That is him on the left, Alene on the right, and our niece, Paris Franklin, in the middle.) The last couple paragraphs in that post prompt me to reprise much of it.
Nathan was born in 1907, graduated from Detroit Central High School in 1924, and attended the Detroit College of Law (then the Detroit City Law School and now the Michigan State University College of Law) and Wayne University Law School, receiving his LL.B. at age 21 in 1929. Nathan passed away in 2003, having continued to practice until his late eighties.
Nathan's practice in the 1930s included, among other things, immigration. That came up in a conversation Alene had with my colleague, Prof. Ragini Shah, who founded Suffolk's Immigration Clinic.
I am burying the lede here, so bear with me.
What prompted the post over ten years ago was the renewed interest in Diego Rivera and Frida Kahlo. Our family takes a special interest in all things Rivera and Kahlo as a result of a particular historical interlude: their four year stay in Detroit, beginning in 1929, when, at the behest of Edsel B. Ford, Rivera painted his monumental murals on the walls of the Detroit Institute of Arts. We have hanging in our living room three prints signed by Rivera, part of a collection of ten he gave to Nathan, who represented and befriended Rivera and Kahlo during their stay in Detroit. (Family legend has it that Kahlo made a pass at Nathan, but this is unconfirmed.)After Nathan passed away (at 96), Alene and I spent many hours going through his voluminous files. One truly appreciates the historian's and the biographer's art of distilling the story from the data when looking at records like these. The documents are tantalizing.
For example, Nathan was a bachelor until 1946, when he married Alene's grandmother, who was a widow with two children. Before that, he was supporting his mother and sisters. When the war broke out, he tried for years to find a way to serve without being drafted as a private (which in 1941 paid $21 a month, not enough to support the family.) Ultimately he found a job as a civilian flight instructor, but the file of letters and rejections to almost every branch of the military and government agency is about two inches thick. I have framed in my office my personal favorite: the letter signed by John Edgar Hoover advising Nathan he had failed the F.B.I entrance exam, which I had first interpreted as having been on account of Nathan's being Jewish while taking it.
Back in 2007, the interest in Rivera inspired me to go back through some of Nathan's files. What became clear was that it was likely Hoover objected to Nathan not only because of his ethnicity, but also because he consorted, in the course of his immigration practice, with all sorts of "undesirables," and espoused public positions to which the FBI director of long memory must have objected. (I like to think that Hoover's two issues with Nathan were related to each other.)
For example, there was a file of correspondence relating to his representation in late 1932 of one Halvard Lange Bojer, the son of noted Norwegian author, Johan Bojer. The younger Bojer, an engineer who had emigrated to the U.S. in 1928, was working for General Electric in Fort Wayne, Indiana, when he was arrested by the Immigration Service, and transported to the Wayne County Jail in Detroit, on the grounds that he was a member of the Communist Party. Bojer himself described it to a reporter as follows: "They tell me that I'm a Communist. . .It so happens that I'm a member of the Communist Party Opposition, whose headquarters is in New York. Members of that Party, though glad to take Moscow's advice, refuse to take Moscow's dictation. There are other differences, such as our belief that the worker's solution is in the organization of a Labor Party, comprised of Trade Unions, similar to that of England. Also, we disbelieve in Moscow's theory that existing labor organizations, such as the A.F. of L., should be wrecked for the formation of Communist units."
The American Civil Liberties Union attempted to intervene on Bojer's behalf. (I couldn't tell if Nathan was already representing Bojer or if the ACLU retained him on Bojer's behalf.) On December 12, 1932, Roger Baldwin, the ACLU Director, wrote to Nathan, urging Bojer to fight deportation as a test case. Baldwin stated: "The issue is far more than personal to him. This is the first case, so far as we are aware, when a member of his particular Communist group has been held for deportation on the ground of membership. It is worth fighting through because it offers a test of the application of the law to other than members of the Communist Party." Nathan met with Bojer in the Wayne County jail, where Bojer, "a very affable and highly cultured young man," advised that he had no desire to appeal the deportation, and was willing to return to Norway. He was released pursuant to a bond posted by his friends in Fort Wayne, and joined an "East bound deportation party" on December 29, 1932.
There was an interesting postscript to that story. Bojer's son or grandson (I don't remember which) in Norway somehow saw the blog post, got in touch with me, and I ended up sending him copies of all the papers.
So finally here is the lede, which was something of an afterthought in the 2007 post, but which in the past two years takes on relevance if not prescience. The files contained an excerpt from Nathan's tribute to Judge Arthur C. Denison on the occasion of his retirement from the 6th Circuit Court of Appeals in January, 1932:
Humanizing the enforcement of existing laws relating to admission and deportation of aliens has become a serious problem confronting social leaders throughout the country. In the present delirium of unemployment when a vague terror seizes the nation, this fear is translated into alien hatred. Public discontent must be directed away from the cause of the unrest and to accomplish this, a counter irritant is administered. The ever oppressed alien is again victimized. The term alien becomes synonymous with undesirable. Deportation "drives" and "spectacular raids" then become common occurrences. Wholesale deportation follows as a panacea for what ails the nation. This national hysteria influences the action of public officials and finds expression in more rigid and relentless enforcement of deportation laws. Even the courts are sometimes swept into the whirling cyclone, marring the annals of juridical science with unprecedented decisions. To espouse the cause of the under-privileged requires great courage. Those who bear the courage of their convictions and refuse to be swayed, belong to the school of Holmes and Brandeis. So few do they number that a loss in the ranks is keenly felt by liberty loving citizens.
And here's more.
The recent resignation of Judge Arthur C. Denison of the United States Circuit Court of Appeals for the Sixth Circuit is such a loss. As a student of social conditions, he has clearly recognized a festering condition to which the Congress of the United States has closed its eyes. Dwelling above the sound of passing shibboleths, he has refused to harken to the murmur of the moment. Recognizing that immigration statutes are very drastic and deal arbitrarily with human liberty, he has found it necessary to remind Immigration Authorities that aliens are human beings and as such have rights in any country in which they are domiciled, not under the principles of natural justice, but under the Constitution itself. Aliens help to create the wealth of our nation; they are subject to its laws and must comply with all its demands of taxation. Aliens, therefore, who have become part of our household and who have cast their lot permanently with ours, must be accorded the protection of law that is granted our citizens.
Monday, July 02, 2018
Many thanks to Howard for arranging to have me contribute as a guest blogger this month!
A few months before I began my tenure-track position in 2014, I was nervous that my seemingly diverse research interests were going to create problems for me down the line. I had interests in professional responsibility, corporate governance, workplace law, and organizational misconduct, which meant I did not feel like I “fit” neatly within a field of legal research. I knew that my research was all connected, but I felt like conveying that connection to others was sometimes a bit difficult. Thankfully, I had a wonderful conversation with a senior scholar who said something to the effect of: “You just research compliance. It is kind of new, so people may not realize it, but that is what you are doing.” These words were instantly clarifying and gratifying. I suppose I knew I was researching compliance issues, but not having met many scholars who defined themselves in that way at that time, I did not realize it was legitimate to actually use the compliance title to describe my work.
Today, compliance has developed into its own, albeit some might still say new, field. There are several law schools with centers, programs, or areas of study in compliance. The ALI is working on a set of Principles of the Law in Compliance, Enforcement, and Risk Management. And there are a variety of compliance-specific conferences that I can attend. Compliance is, however, an interdisciplinary field. Some people writing in the space describe themselves as corporate law scholars, some as criminal law scholars, and there is quite a bit of very good work being done by business school professors. Personally, while I self-identify as a compliance scholar, I do so with the caveat that I draw on research from several areas within legal scholarship and organizational behavior. More specifically, the underlying research question that motivates my scholarship asks how one might address dysfunctions within organizations in an effort to create more productive, healthy, and ethical environments within firms.
This month I’ll be blogging a bit about my compliance research, but also about the experience of working within a field that is (i) still emerging and (ii) interdisciplinary in scope. For me this has been a really exciting endeavor, but it does have its own set of challenges to work through. But for now, I will just wish you all an early Happy July 4th.
Sunday, July 01, 2018
Welcome to July. Thanks to the participants in our second annual End-of-Term symposium, which turned out to be a lot more eventful (and depressing, for some of us) than expected; they will be finishing up this weekend. We will see you all again next June.
And welcome to our July visitors--returning guests Hadar Aviram (Hastings) and Jeff Lipshaw Suffolk) and first-time guests Dorit Reiss (Hastings) and Veronica Root (Notre Dame). Thank you for joining us.
Friday, June 01, 2018
Farewell! (Derek Muller)
Thanks to Howard and the crew here at Prawfs for indulging me for nearly two months. I deeply appreciate the conversation and hope I provided some content prawfs found valuable!
If you'd like to read more of my work, I blog at Excess of Democracy, which I launched five years ago and named after a phrase used by Elbridge Gerry during the constitutional convention. It has some election law content, but it includes a variety of topics, especially on legal education. You can also find me on Twitter.
Finally, I'll highlight a few of my articles in the event any piques your interest! (More drafts to be posted this summer....)
- Hot off the press is Legal Quandaries in the Alabama Senate Election of 2017, 69 Ala. L. Rev. 983 (2018), examining the many complexities of the Seventeenth Amendment, special elections generally, and Alabama state law specifically that arose with the controversy surrounding Roy Moore.
- The High Cost of Lowering the Bar is a work in progress with my colleague Rob Anderson. Through a study of bar discipline rates in California, we conclude that lower bar exam scores are correlated with higher discipline rates, and that lowering the passing score would result in higher discipline rates. We acknowledge we lack a causal relationship, and we offer different ways of thinking through the costs and benefits in a more holistic way when it comes to evaluating bar exam cut scores. (Feedback welcome as this remains a work in progress!)
- 'Natural Born' Disputes in the 2016 Presidential Election, 85 Fordham L. Rev. 1097 (2016), notes the many problems, mostly jurisdictional, that arose during questions surrounding the eligibility of Ted Cruz and other candidates in the 2016 election. It calls for a constitutional amendment to quash future disputes. (For a much more robust treatment of the constitutional amendment question, check out Kevin Walsh's forthcoming piece in the Duke Journal of Constitutional Law & Public Policy, The 'Irish Born' One American Citizenship Amendment.)
- Ballot Speech, 58 Ariz. L. Rev. 693 (2016), identifies the ballot itself--the names of candidates, their party affiliation, descriptive terms--as an essential resource for candidates to speak to voters and offers a framework that would better protect that forum.
- Finally, as the Connecticut legislature recently passed the National Popular Vote Compact, I thought I'd share a couple of older pieces on why I think such a compact requires congressional consent under the Compact Clause, and a piece on the practical difficulties of a national presidential election while administration of the Electoral College and the right to vote remains largely left to the states.
Friday, May 11, 2018
On mixing academic and journalistic writing (Updated)
Olga Khazan at The Atlantic summarizes a new article by Austin Frakt, Aaron Carroll, Harold Pollack, and Keith Humphreys--all academics who write for newspapers, blogs, and other popular outlets--discussing the rewards and challenges of writing for popular journalistic outlets and audiences as an academic.
From my limited experience writing regularly here and at SCOTUSBlog and dabbling with op-eds in newspapers or magazines, it seems to me there are two issues--one is style/tone, the other is level of detail and support. The latter obviously decreases in these formats--writing 500-1000 words on a germinating idea that will get 20,000 in a full article means less detail and support. A blog post or opinion recap is not meant to be a full scholarly analysis. I find style/tone to be trickier--I assume readers here are law-trained, which I sometimes forget when writing for a different audience that is law-interested but not law-trained.
Update: I also agree with Frakt, et al. about speed, which is unnecessary for academic projects. I am a slow reader and processor, so the process of quickly turning around a report on an argument or opinion is painful for me. I also tend to rush when pressed for time and make bad grammatical mistakes or fail to provide the right links (as happened in this post--the link to Khazan's piece is fixed).
Tuesday, May 01, 2018
May is upon us, and so is the start of visits from returning guest David Orentlicher (UNLV) and newcomer Justin Murray (Climenko Fellow). In addition, Adam Kolber and Derek Muller will continue their late-starting April stint into May.
Saturday, April 07, 2018
A flurry of final posts for our Futures of Legal Education Symposium are going up this weekend. We will put up a single post with all the contributions next week.
Our late-starting April/May visitors will be Seth Davis (UC-Irvine), Andrew Ferguson (UDC), Adam Kolber (Brooklyn), and Derek Muller (Pepperdine). They will be here through April and into May.
And June will feature our second End-of-SCOTUS-Term Symposium; stay tuned.
Monday, March 19, 2018
Writing is Architecture First, Interior Design is Secondary: On Trains, Houses & Pyramids
That's a variation on Hemingway, again. I posted a few days ago a fun, though a bit random list of quotes about writing (oh the Internet, where curating quotes has become the soul-less pastime of too many who've never actually read those they quote. May we always quote soulfully is my wish to us prawfs and writers at large...). Hemingway said prose is architecture, not interior design and that the Baroque is over. I think he meant that the substantive of what you want to say needs to guide the writing and that you need to write in a punchy concise way, avoiding fluff for merely decorative purpose. Say what you mean and mean what you say and get rid of all the garnish. I like garnish and I think interior design is important too. I'd even argue for bringing a bit of Baroque back (Bach J), carefully . But I completely agree that the structure is first and foremost in writing a good article or book. The bare bones are the piece of the writing puzzle that needs to be done right.
Today I spoke with my seminar students about their research projects and I thought I'd offer here, as a second installation of posts about writing, the metaphors I use with my students to help us think about structure. One of my favorite teachers in law school, who later became one of my doctoral advisors, was Martha Minow. I remember her telling us in a seminar on law and social justice, similar to the one I teach today, that you can write a house or a train. I think she said houses are what books look like and trains are articles. I don't agree with that division, I think both articles and books can be houses or trains. But the visual I've always found useful in thinking about what I am doing and how to build my project. If you are building a house, you take the reader with you through a pathway into a place where you have a nice entrance, a main hall and some public spaces, and then doors, and windows into rooms, each holding an interesting set of ideas about a related topic. Together the house makes sense but each room also stands on its own. If you are building a train, you think linearly about your project. It could be chronological or it could be a problem in search of a solution and the solution unfolds as your present and analyze layers of evidence, perhaps empirical data, theoretical arguments, policy claims. To the houses and trains I added today in class the visuals of pyramids and reverse pyramids. In every discipline, a good portion of research involves the qualities of lumping or splitting. In legal scholarship, often insights come from taking a broad issue, a broad base of a pyramid, a classifying and regrouping the issues to show how we actually have separate questions emerging from different subcategories and these should be addressed distinctly. We also often have insights when we look sideways, from a reverse pyramid narrow tip into horizontal fields, related topics that offer new insights. Research is often an import-export business.
I don’t know if these visuals are useful only to me or beyond but I’ve found that sketching my next writing project, including actually drawing stuff, not just outlining gets me into better architectural shape and only then can I begin to think about the décor.
Thursday, February 01, 2018
Thanks to our January visitors for a good start to the new year.
Welcome to our returning visitors--Jen Kreder (Northern Kentucky), Corinna Lain (Richmond), and Jordy Singer (New England).
As always, if you will be in the Los Angeles area and would like to be a guest at a live taping of PrawfsBlawg (especially if you have never visited), email me.
Monday, January 01, 2018
Thanks for Having Me, and New Year's Resolutions
*Tap, Tap* Is this thing on? It's probably been... well, an eon (in cyberyears) since I was last blogging. Thanks for having me back and for the warm Prawfsblawg welcome. Here's my Jan. 1st resolution. Do any of you have new year's resolutions about scholarship?
Happy 2018 from everyone at Prawfs. And welcome to the new year with our January returning guests--Miriam Cherry (SLU), Megan LaBelle (Catholic), Ann Marie Marciarille (UMKC), and Mark Moller (DePaul). Our December visitors may stick around for a few weeks.
We look forward to another great year at Prawfs.
Thursday, November 30, 2017
Welcome to December and returning guests Andra Robertson (Case Western) and Michael Mannheimer (Northern Kentucky). And thanks to our November visitors for a great month.
Thursday, October 05, 2017
A belated welcome to our October guests--Deborah Ahrens (Seattle), Elizabeth Dale (Florida), Tessa Davis (South Carolina), Josh Douglas (Kentucky), and Michael Morley (Barry). And thanks to our September guests, who may stick around for a few final posts.
Tuesday, September 05, 2017
Happy September. Thanks to our August guests.
And welcome to a big slate of September returning guests: Jennifer Bard (Cincinnati), Ian Bartrum (UNLV), Elizabeth McCuskey (Toledo, visiting at SLU), Eric Miller (Loyola-LA), and Jack Preis (Richmond).
Thursday, July 20, 2017
Opinions About Giving Legal Opinions
Nowadays, news reports resemble the sorts of crazy hypotheticals that law professors love (and law students loathe). And since we love far-fetched hypotheticals, many law professors have taken to giving our legal opinions about the political news item of the day.
In addition to having our own opinions about the latest news, law professors are often confronted by the opinions of their colleagues. Newspapers, blogs, and Twitter are full of divergent opinions on these topics, and many of us end up having strong opinions about our colleagues’ opinions.
Given the ubiquity of legal opinions (and opinions about those legal opinions), I’d like to offer five opinions about how I think law professors ought to share their legal opinions with the public.
First, be careful when you offer opinions that are available to the general public. It used to be that law professors had to wait for a media call or have an op ed accepted in order to share their views on the legal topic of the day. Not so anymore. Blogs and Twitter allow us to give our opinions easily – perhaps too easily at times. And although these platforms might seem like social media, it is important to remember that the opinions you give in these fora are public statements. Even if you have only 70 followers, and most of those are your family and college friends, something that you tweet could be shared and read by total strangers with no background in the law and no sense of who you are.
I say “be careful,” not only because you are stuck with whatever reputational fall out might occur from a publicly expressed opinion, but also because your public statements come with an implicit aura of authority. When we identify ourselves as law professors, that signals that we are experts whose opinions ought to be taken seriously. We should remind ourselves about that explicit claim of expertise when offering a public opinion. And if you aren’t actually claiming that expertise—say if you are offering an opinion outside of your field—make sure to offer that qualification, and seriously consider whether you ought to share the opinion publicly at all.
Second, certainty when expressing a legal opinion is rarely warranted. Just as we often respond to student questions by saying “it depends,” we should also acknowledge the same uncertainty in our public statements. I’ve found it useful, for example, to remind myself that a legal opinion is no more than a prediction about how a court will rule in a given situation. I don’t mean to suggest that legal opinions should be nothing more than psychological predictions about how certain judges will rule. (I personally find those sorts of opinions a little tedious and somewhat presumptuous.) But most legal opinions are offered in circumstances that are not identical to prevailing Supreme Court case law, and so all that we are offering is a guess about how courts will decide a case using existing statutes and case law.
There is real temptation to project certainty. It may make us feel more confident to sound certain. Or we may want to impress the journalist who has called us. Sometimes reporters are just looking for a sound bite to drop into their article, and at least some of them want you to speak definitively in that sound bite. But a journalist’s job is to inform the public; and if we make it seem as though the law is clear in areas where it isn’t, then we are misleading the reporter (and in turn, the public) rather than informing them.
Third, be willing to rethink your opinions and to admit your mistakes. The law professors that I admire the most are those who have changed their minds. For what it is worth, this is easier to do if you don’t initially express your opinions with too much certainty. If you couch your opinion in terms of “here is what I think at this point,” you leave your ego plenty of room to walk away from that opinion after further reflection or after new information comes to light.
Fourth, be measured and thoughtful when you disagree with the legal opinions expressed by others. Law professors are human, and they are more likely to engage with you on the substance of an issue if you are respectful in your disagreement. I don’t just mean avoid being a jerk. I mean you should go out of your way to frame your disagreement terms that couldn’t possibly be mistaken as hostile or aggressive. It is easy to mistake tone online, so you are better off saying “I really enjoyed this interesting post. Do you have any thoughts on X?” where X is a piece of information that contradicts a factual point the other professor made, or where X is an opinion by someone else that goes the other way. A less conciliatory tone is likely to get the other professor’s hackles up, and if someone’s hackles are up, then he or she is less likely to engage your substantive concerns.
Fifth, don’t assume that people are acting in bad faith when they give legal opinions. In particular, please stop accusing people of giving legal opinions only because those opinions happen to align with their political preferences. This sort of finger pointing gives further ammunition to non-lawyers who insist that law and politics are indistinguishable. That isn’t true, and it is extremely corrosive to the legal academy when those legal naysayers can point to law professors accusing each other of partisan hackery in their expert opinions.
We should, of course, all be careful to push ourselves on our own opinions to ensure that those opinions are impartial predictions of legal outcomes rather than partisan preferences. (There is evidence suggesting that confronting our biases can lessen or eliminate their influence.) But we should assume that our colleagues are smart enough and honest enough to have done this themselves. And if you are genuinely worried that someone’s opinion can’t be supported as anything other than political wishful thinking, I recommend trying to have that exchange with him or her in a non-public forum.
There you have it – my five opinions about how to give legal opinions. I’m interested to hear your opinions on legal opinions. And I am quite open to being convinced that my own opinions are wrong. (Except for number four --- I feel quite certain about that one.)
Monday, May 29, 2017
Thanks to Ben and Andrew for visiting in May; they will be around for a couple final days.
For June, we are going to run a symposium on the end of the October 2016 SCOTUS Term. This will be a month-long exchange of posts, in a conversational and interactive manner; we will be discussing final decisions of the Term as they are released, as well as other issues surrounding the Court, such as new cert grants, the influence of Justice Gorsuch on the Court's dynamics, and the rumors of Justice Kennedy's retirement. We will be talking with you and with one another.
Guest-bloggers are Will Baude (Chicago), Daniel Epps (Wash U), Leah Litman (Irvine), Andra Robertson (Case), Stephen Sachs (Duke), Ian Samuel (Harvard), and Chris Walker (OSU) [ed: and late additions Joseph Miller (Georgia) and David Fontana (GW)]. In addition, the regular Prawfs who write on SCOTUS issues will be joining in the mix. This is something a little different for us. I think it will be fun and interesting.
Because there may be opinions released on Tuesday, we are going to start a couple days early.
Thursday, May 18, 2017
Joining the Prawfs Community
I am extremely excited to join the Prawfs perma-blogger roster.
I started reading Prawfs in 2005, and I followed it kind of obsessively as I left my clerkship and started a teaching fellowship. I did my first blogging here as a guest. And it was the Prawfs community--Danny in particular--that introduced me not only to rigorous scholarship workshops, but also to a great number of people that I now consider to be close friends.
In short, PrawfsBlawg helped shape who I am today. And I'm absolutely delighted to be a permanent part of the community.
Wednesday, May 17, 2017
Welcome Carissa Byrne Hessick as perma blogger
We are happy to announce that Carissa Byrne Hessick of UNC has joined PrawfsBlawg as a permanent blogger. Carissa, who has visited hear many times in the past, writes on criminal law, including Redefining Child Pornography Law: Crime, Language, and Social Consequences.
Monday, May 01, 2017
Welcome to our May guests--Ben Edwards (Barry, headed to UNLV) and Andy Ferguson (UDC) and thanks to our April guests, some of whom will be sticking around for a few more days.
Sunday, April 02, 2017
Welcome to April. April Fool's Day jokes have never been a Prawfs thing, but here is one from Mike Dorf.
Thanks to our March guests. David Fontana will continue from March, joining our returning April visitors of Mark Fenster (Florida), Corinna Lain (Richmond), and Mark Moller (DePaul).
Sunday, March 26, 2017
Welcome to Max Stearns and "Blindspot"
Max Stearns (Maryland) has joined the law professor blogosphere with Blindspot, which he describes here. Posts so far have covered the Gorsuch hearings, coffee, the TV show "Rectify" (whose final season I need to watch), and ideological blindspots of both political parties.
Definitely worth adding to your regular blog stops.
Wednesday, March 01, 2017
Thanks, and More on Interdependent Courts
Thanks to Howard and the gang for letting me blog here this month. For those who are interested, I’ll be continuing my discussion of court organization, structure, and strategy at a newly launched blog, The Interdependent Third Branch. After you peruse Prawfsblawg, I hope you’ll take a moment to check it out!
Thanks to our February visitors, who may be sticking around for a few more days. Thanks especially to our symposium participants, who definitely will be around for a few more days. That seems to have worked well and we look forward to doing more things like this in the future.
Welcome to our March visitors: Seth Cavis (UC-Irvine), David Fontana (George Washington), Jack Harrison (Northern Kentucky-Chase), and Brad Snyder (Wisconsin).
The following is posted on behalf of Jake Linford at FSU ([email protected]), who is hosting the first PrawfsFest! since Dan's death.
I am among the many beneficiaries of that most Markelian (Markelish?) of workshops, the Prawfsfest! It has been too long since the last Prawfsfest, and so I will be hosting a new session at Florida State University College of Law in Funky Tallahassee. The plan is to gather on April 27-28, during FSU’s exam period, but before the weather turns too hot.
The point of the gathering is to be an incubator for half-baked scholarship and early works-in-progress (pre-submission, pre-SSRN). Each participant is expected to produce of a draft of no more than 10,000 words. The author does not present the paper, but instead we spend an hour on constructive criticism of each paper, which everyone will have read.
I have 6 available slots, open to any former or current PrawfsBlawgger, which will be distributed first come, first served. Each participant must cover their own travel expenses and hotel accommodations, but FSU will pick up meals. Historically, the conversation and feedback have justified the cost. I'm hoping to finalize the list of attendees as soon as possible, so please let me know ([email protected]) if you plan to attend by March 15, 2017.
Wednesday, February 01, 2017
Welcome to February.
Thanks to our January guests, who may stick around for a few extra days. For February, our month-long guests will be Ian Bartrum (UNLV), Megan LaBelle (Catholic), Robert Mikos (Vanderbilt), and Jordy Singer (New England).
In addition, February will include an on-line symposium, something we have done in the past and hope to do more of in the future. Organized by Dan Rodriguez, this month will be Law's New Frontiers, a discussion sparked by Richard and Daniel Suskind's The Future of the Professions and Gillian Hadfield's Rules for a Flat World. Participants will be: Daniel Rodriguez (Northwestern), Daniel Katz (Chicago-Kent), Daniel Sokol (Florida), Phil Weiser (Colorado), William Henderson (Indiana-Bloomington), Renee Knake (Houston), Andrew Perlman (Suffolk), Stephen Denver (Law Society of England & Wales), and Javier de la Cendra (IE-Madrid). Dan (Rodriguez) will have more when it is about to begin.
Tuesday, January 03, 2017
MarkelFest! at AALS on Wednesday (Moved to Top)
We will continue a PrawfsBlawg tradition with another MarkelFest! Happy Hour at the AALS Annual Meeting in San Francisco. It will be at 9 p.m. on Wednesday, January 4, at Romper Room, 25 Maiden Lane in Union Square; go to the private room upstairs, called the Leopard Lounge (buy drinks at the bar downstairs). The bar is about a 10-minute walk from the Hilton (walk up O'Farrell, left on Grant, right on Maiden Lane).
Please spread the word. And come join us for drinks and conversation. See you all there.
Sunday, January 01, 2017
Rotations and 2017
Happy New Year and welcome to 2017 and a new slate of Prawfs visitors. This month, we welcome (back) Eric Chiappinelli (Texas Tech), Ann Marie Marciarille (UMKC), and Seema Mohapatra (Barry). And thanks to our December visitors.
We were pleased that Prawfs made the most recent ABA Blawg 100. For 2017, we are going to try some new things on the blog, including some month-long symposia on scholarship, real-world events, and whatever else strikes us. And we will continue with our slate of regular and guest bloggers. As always, we are looking for new and returning voices, so please email me if you would like to spend a month (or months) in the conversation here during the coming year.
Finally, reminder about the continuation of a Prawfs tradition with a MarkelFest! Happy Hour at AALS at 9 p.m. this Wednesday, January 4, at Romper Room; they were nice enough to give us the private Leopard Lounge (I report, I don't name), so please help us make it a good showing.
Friday, December 30, 2016
Sponsored Post: Experiencing Trusts and Estates
We’re delighted to have the chance to talk about a casebook that we have forthcoming from West Academic in its Experiencing Series. The key idea behind the books in the Experiencing Series is to incorporate more experiential lessons than the typical casebook. While seemingly all casebooks are making that move these days, trusts and estates lends itself to this approach in particular. We are building on the really terrific teaching materials that have been out for decades now in trusts and estates by keeping many of the well-known cases and building out more documents and some of the key issues that students who will be in small firms will likely face on a regular basis.
We start Experiencing Trusts and Estates with planning for the physical act of death -- that is, planning for durable powers for attorney for health care and for financial matters. We introduce right up front those very basic documents, and the statutes that govern them, to give students a sense of what those documents look like, how they can prepare them using statutory precedents, and some of the problems that attend (particularly) durable powers of attorney for financial matters. Then we introduce the basics of the estate and gift tax regime and the basics of the probate process. All this material gives students a 360-degree view of the field and gets them ready for lessons in the drafting and execution of wills and trusts. Our focus is to introduce students to planning documents and to see how those documents (like spendthrift trusts) are written and interpreted. One of our hopes is that this approach prepares students with the vocabulary and the basic understanding of how documents relate to the more esoteric wills and trust doctrines that they’re learning about. And to make things a little more entertaining, we draw a lot of examples from “wills of the stars” -- from George Washington to Elvis, Michael Jackson, Katherine Hepburn, and Whitney Houston. Experiencing Trusts and Estates will be published this spring and available for fall 2017 classes.
Thursday, December 29, 2016
Streamlining Your Twitter Routine
Twitter can be an epic timesuck, but it doesn't need to be. Here are some tips to make the most of it, for both creating content and consuming it.
For creating content and tracking activity, consider these suggestions:
- Use a scheduling tool. This is my single biggest trick for keeping active on Twitter: I use Buffer. Buffer, like Hootsuite and others, is a scheduling tool that lets you schedule tweets to post at a later date and time (and on multiple social media platforms and profiles). You can also use Buffer plugins that work directly in the apps or websites you are using. My routine includes reading relevant stories on Feedly (which aggregates multiple legal news sources and tech blogs), composing tweets with links to interesting content, and using Buffer to schedule tweets throughout the day rather than tweeting them all at once.
- Tweet a lot at once. If you have a lot to say on one topic, it's okay to occasionally do a series of tweets in short succession (called a tweetstorm, because why not). This article helps explain the mechanics of tweetstorming, and has links to apps that help. Using tweetstorms too often may be spammy, but it can be a good way to focus your energy on tweeting more detailed content in one big burst.
- Set up alerts. You should pay attention to retweets and replies to your tweets, but it can be distracting to always have Twitter open. Instead, set up email notifications or push notifications on your phone. That way, you can respond to replies and monitor activity as needed without being lured to your always-open Twitter tab. Conversely, if you get a lot of activity on Twitter and it's a distraction, disable alerts and instead set aside specific time frames to check your account.
- Don't obsess about follower counts. I don't have a ton of followers, but it's the quality not quantity that matters to me. It takes consistent tweeting and interacting with others to create a meaningful base of followers. You'll frequently gain and lose random followers who have nothing to do with your subject areas -- it may just be someone looking to get followed back (because they, unlike me, are focused on quantity). And occasionally a tweet will make your follower count dip a little immediately afterwards (leaving you to wonder if it was something you said?). For sanity's sake, tune out and pay less attention to the real-time ups and downs of your follower count.
- Check Twitter analytics. It can be frustrating to feel like no one reads your stuff, which seems like a common lament for law professors generally. But Twitter gives you analytics to help gauge the impact of your tweets (such as total impressions, mentions, retweets, and changes to your follower count over time). You can get a lot of info from Twitter analytics from the web version and more limited tweet activity stats in the mobile app. Social media management tools like Buffer also give you analytics. Of course, focusing too much on these metrics can be a timesuck of its own, but it's fun and, if you notice some content always falls flat, you can readjust.
- Accept that your activity will ebb and flow. Resolve to tweet more but certainly prioritize other work and scale back as needed. Consistency may be important but going silent for a stretch of time won't necessarily torpedo your efforts. Don't give up just because you took a hiatus.
For consuming content, Twitter moves fast and you will always miss some updates. Accepting this fact is the key to avoiding frustration, but there are ways to tailor what you see and decrease clutter. Twitter "lists" are the main tool, along with using special apps.Lists let you group updates from certain Twitter accounts in one view, so that you create a mini-newsfeed on a targeted topic. Once you create a list, you can then click on that list to see tweets from only the list's members. Here are additional tips for using lists:
- Subscribe to other people's lists. Sometimes other users have already created helpful lists. Rather than reinventing the wheel with a new list, you can subscribe to theirs.
- Use both public and private lists. Public lists are visible to all, and the list members get a notice when you add them. This is useful because you may want them to know you included them (as long as you picked a flattering list title), and other people may then subscribe to your list. Private lists function as organizational tools and are only visible by you. Members don't know you added them to private lists.
- View lists on the mobile app. The location for lists in the mobile app is not ideal, but if you go to the "Me" tab, click on the wheel with spokes, and select "lists," you can see tweets by list.
- Add accounts to lists without following them. Lists let you add accounts even if you don't follow them. This means that you don't have to clutter up your main twitter feed with updates that go to a list.
In addition to using lists, here are other content management tips:
- Avoid following binges. It's tempting to follow every account remotely related to your interests, but try not to clutter up your main feed with marginally relevant content. You can always add accounts to lists without also following them.
- Unfollow liberally. Declutter your news feed by removing accounts that don't interest you. Most people won't even notice. The only drawback is you'll see fewer replies between other people (which are only visible in your main feed if you follow both accounts), but this may be a good thing.
- Remove duplicative content. If you read a news source regularly via mobile app or an RSS feed, perhaps unfollow them on Twitter. Decide what to prioritize in what platform.
- Use a Twitter dashboard. I'll admit I haven't tried this yet myself, but apps like TweetDeck and TweetBot can be especially useful for curating what you see in Twitter. They help you manage multiple accounts, view multiple lists at a time, and otherwise streamline your Twitter usage (some are complete social media management tools that also let you schedule tweets across multiple accounts). Advanced features include muting content based on hashtags or keywords, which seem particularly useful for tailoring what content you see.
I welcome other suggestions in the comments, as I too am trying to implement new management tips in 2017.
Wednesday, December 28, 2016
Tips for Tweeting (Including New 2016 Features)
I've put together some tips for tweeting, which may be useful for those who are new to Twitter or who don't tweet much. And for more experienced users, I've included info on some of the 2016 changes to Twitter.
Twitter's most distinctive trait is its 140-character limit for all tweets. This format cuts down on text and allows for a quick view of a lot of content. The 2016 improvements to Twitter largely altered what counts towards the character limit (Twitter toyed with the idea of allowing much longer posts but changed course following backlash).
First, as to content, in 2015 Michael Risch at Faculty Lounge analyzed what law professors tweet, among other data. In general, law professors include a combination of links to new content, retweets of others' content, or statements without links that may be informational (or for purposes of self-promotion). Certainly various content options are possible, and it's best to strive to tweet about a combination of the following:
- Substantive content. Pick a theme, such as your area of scholarly expertise, and focus on tweeting about things you find interesting on that theme.
- Interactions with others. Retweet people, reply (always politely) to things others say on Twitter, and mention people.
- Law school promotion. Retweet official announcements from your law school, your colleagues' tweets, and positive press.
- Self-promotion. Announce new publications, speaking engagements, and accolades. Retweet press about you or tweets that mention you. Live-tweet from events, as long as the event organizers or presenters allow it.
- Other hobbies or interests. Sprinkle in the occasional personal detail or point of interest that goes beyond your academic pursuits. Don't overshare or adopt some fake online persona, but don't be afraid to show a little personality.
Second, understand some of the nuances of how Twitter works:
- Share links. You can copy and paste URLs into the tweet you are composing. Links are worth 23 characters regardless of link length. This means that using link shorteners, like Bitly, is not necessary (even links shorter than 23 characters still count as 23 characters). You can also share on Twitter directly from other apps or websites with the Twitter plugin (just click on the website's Twitter button, though you can still modify the text before tweeting). Rumor has it that Twitter will do away with URLs counting towards the character count at all, but this has not happened yet.
- Use hashtags. Hashtags allow folks interested in a topic to find your tweets more easily. Just add a pound sign (#) before a common term and it'll become a hashtag. If you want to find popular hashtags, check out what is trending on Twitter (usually your Twitter home screen will have a column with trending topics). Or, for those who want to get fancy, you can use various analytic tools and apps to find popular hashtags.
- Add images. Thanks to Instagram and Snapchat, images are increasingly important on all social media platforms. Twitter just made a change so that images no longer count towards the character limit. And images now automatically display in Twitter feeds, making them even more visible. Consider incorporating more images as a way to expand on your ideas.
- Retweet others. Twitter lets you retweet someone else's entire tweet so that it appears on your profile with the original author's handle and profile image. If you learn something from someone else but don't want to retweet the content, it's nice to give credit anyway -- usually indicated with "via," "HT," or "H/T" followed by the originator's Twitter handle.
- Quote tweets. One major 2016 update to Twitter is the revamped Quote Tweet function. It lets you retweet something with your own commentary added, and you now get a full 140 characters for your comment. Before the 2016 changes, people had to squeeze their comments into the remaining characters of the original tweet. Thus, tweet authors tried to save room for comments by using fewer than 140 characters in an original tweet. Now, you get a full 140 characters for your comments on a quoted tweet, plus you no longer have to add "RT" to indicate a retweet or "MT" for a modified tweet. You now can also quote your own tweet, if you must.
- Reply to tweets. An option for engaging in a conversation, a reply includes the original author's Twitter handle and is linked to the original tweet. Just click on "reply" and type your text after the auto-filled Twitter handles. But don't confuse DM (a private direct message) with a reply: replies are essentially a public conversation. [EDIT: When you click reply, that reply is only visible in the news feeds of those that follow both parties. The reply does appear on the profile page of the person who wrote the reply.] One new change is that the characters in the Twitter handles for replies don't count towards the 140 character limit. For experienced Twitter users, note that replies used to be visible to only certain Followers, but they are now visible to everyone even if the tweet begins with a Twitter handle. This means the "[email protected]" workaround is no longer necessary to keep replies broadly visible. [EDIT: Old Twitter treated any tweet that started with a Twitter handle as a reply. So, if you started a tweet with "@" fewer people would see it. The period or dot before the Twitter handle was a pro-tip for users wanting to make tweets beginning with "@" more visible. Under the 2016 changes, a newly composed tweet that begins with "@" is visible like any other tweet, so the dot is not necessary. But when you hit the reply button, visibility is still limited. Thus, the "[email protected]" convention is not totally dead yet (and this requiem for the [email protected] may be premature). This help page explains tweet visibility more. But the best practice may be to retweet anything you're mentioned in (replies or otherwise) if you want them to be seen.]
Next up: ways to streamline your Twitter routine.
Wednesday, December 14, 2016
"Professors or Pundits"
I received an announcement about this new volume, edited by my Political Science colleague at Notre Dame, Prof. Michael Desch, called "Public Intellectuals in the Global Arena: Professors or Pundits." The book grew out of a conference, held at Notre Dame in 2013 and sponsored by our Institute for Advanced Study. Our own Paul Horwitz was one of the presenters, and I had the pleasure of providing a short response to his paper, "The Blogger as Public Intellectual."
I wonder, Paul, if your thoughts on the subject are what they were in the Spring of 2013?
Friday, December 09, 2016
Professor Michael L. Rich
Michael L. Rich of Elon law passed away Wednesday, after a several-years illness. Michael was a guest prawf in April of this year and wrote movingly about his experiences and challenges balancing his prawf life with a terminal illness.
Our thoughts and prayers go to his family, friends (in and out of the legal academy), and Elon colleagues.
(Thanks to Eric Chaffee (Toledo) for sharing the news).
Thursday, December 01, 2016
Greetings from a First-Time GuestPrawf
This is my blogging debut – thanks for having me as a guest this month! I’m an assistant professor at University of Toledo College of Law, where I teach Torts, Legal Ethics, a seminar on social media discovery, and, as of next semester, Privacy & Data Security Law. I mainly write on social media & the law (which is basically the law of the horse but with emojis). I thought December would be a great month for my guest stint, as post-election analysis would die down and we once again would be interested in seemingly trivial things, like social media. So much for that!
But I still intend to blog about social media topics, including social media’s post-election angst. Other topics will include top social networks your students use (spoiler alert: it’s Snapchat), Facebook tools to tame your out-of-control news feed, social media issues in legal ethics, and Twitter tips for academics. I’ll also write a bit about the sharing economy & tort law, my other area of interest.
So thanks again for having me and I look forward to a great month!
Happy December, everyone. Thanks to all of our November guests, as well as our election bloggers (I will post a single post with all the election-related writings later today).
And please welcome our December guests: David Lander (Saint Louis), Kevin Lapp (Loyola-LA), Scott Maravilla (ALJ), and Agnieszka McPeak (Toledo).
Wednesday, November 30, 2016
Sponsored Post: Learning Criminal Procedure
The ABA, employers, and students themselves tell us that law schools must do more to produce students who are better equipped to enter the practice of law. The goal of complete practice-readiness might be something of a tall order. True competence in even one area of the law may take five or even ten years to develop. We have our students for just three. But, there is certainly much more we can be doing to make our students what we will call “practice-primed.” There are steps we can take during those three years to ensure that the students have the basic knowledge they will need as young lawyers. There are things we can do to ensure students are exposed to a fuller array of the skills they will need in practice, not just the narrow range that has been the focus of more traditional approaches to the curriculum. This is a large part of the reason we came together to write the Learning Criminal Procedure.
And, so many former students report back that they are using the book precisely as we intended: First, as a learning tool to expose them to criminal procedure doctrine. And, then as a desk reference to help them navigate the early years of practice as defense attorneys or prosecutors.
As a learning tool, Learning Criminal Procedure eschews the traditional method of law school teaching, which asks students to read cases and then derive the law by parsing through the court’s decisions. Instead, the book presents the applicable legal rule to the students in the very first section of each chapter. The next section uses case summaries to explore the scope and policy behind the rule. The book takes this approach because it frees up class time for you and your students—instead of guiding them through the cases to eventually arrive at the rule, you can start with the rule and then use the text in class to engage students with the doctrine in the many ways students will see the doctrine deployed in practice. For example, when teaching students about Terry’s stop-and-frisk doctrine, you might first work through each of the review problems that we present at the end of each chapter, allowing students to immediately apply the knowledge they have learned and use the law as a practitioner would. After you have a sense that students have a preliminary grasp on the material, you can then do a deeper dive. For example, you might explore one of the simulations mapped out in the Teacher’s Manual and require your students to use their newly acquired knowledge in the dynamic environment of role play.
As a desk reference, your students can use the book to refresh their knowledge and inform their thinking after they have moved out into practice. The book’s clear organization and direct approach to presenting the law make it easy for new lawyers to refer back to the book when they have a specific legal question. Indeed, former students routinely report back that the book has been essential to them as they bridge the gap between law school and the early years of practice. Just the other day, a former student reported that his first draft of a response to a suppression motion had been adopted with few changes by the supervising attorney at the state prosecutor’s office. “Your book was essential to that draft,” the student said. Mission accomplished.
Tuesday, November 08, 2016
Law School Election Night Blogs
This year at least three law schools are holding Election Night events to watch returns come in and provide election law commentary. I'm currently with 10-12 members of the UK Election Law Society, and students are blogging here (after I approve the posts). William & Mary law students are blogging here. And Ohio State's Election Law @ Moritz students and faculty are providing insights here.
These events are a great way to engage students in election law issues while also providing important commentary to the community. I'm proud that a few years ago some students formed the UK Election Law Society on their own, and the event tonight is largely student-driven. Please hop on over to the website throughout the evening!
Tuesday, November 01, 2016
Welcome to November and either the end of the republican experiment or just another election.
Our October election symposium will continue at least through Election Day and perhaps through November. Meanwhile, we welcome new November guests to the mix--Andrea Boyack (Washburn), Dave Fagundes (Houston), Tracy Pearl (Texas Tech), and Margaret Ryznar (Indiana-Indianapolis).
Enjoy the month.
Friday, September 30, 2016
Thanks to our September guests, who may be sticking around for a few extra days.
For October, we are going to try something different with our guest slate. With the election looming, we decided to do a month-long symposium, with expert guests writing about the election, election law, and related issues, such as what might happen after the election and in the new administration. I am happy to introduce Josh Douglas (Kentucky), Ned Foley (Ohio State-Moritz), Lisa Manheim (Washington), Michael Morley (Barry), Bertrall Ross (Berkeley) and Franita Tolson (Florida State). They will be with us for October and perhaps through to the election in early November.
We look forward to a great, and unique, month of posts, from our guests and our regular bloggers.
Monday, September 05, 2016
Blowin' Down the Road
I had good intentions to post a few more times, but Hurricane Hermine had other plans. And so it goes. But I'm glad that Prawfs provided a platform for my live-blogging experiment from the Intellectual Property Scholars Conference at Stanford. I hoped for a bigger turnout, but a few dedicated souls shared some wonderful summaries of fascinating scholarship. Perhaps I'll try again next year. If you have clever ideas to encourage more scholars attending multi-track conferences to live-blog or tweet the panels they attend, please share your ideas in the comments.
In the meantime, I'm thankful that Hermine only landed a glancing blow on funky Tallahassee, and that family, friends, and community members made the experience bearable. Hermine may spend more time in the North Atlantic, so I hope my northern colleagues stay safe.
Until next time!
Thursday, September 01, 2016
What to expect this month
Since my modest reputation doesn't usually precede me by very far, please let me introduce myself a bit. I am starting my third year as an assistant professor at Howard University School of Law, where I teach contracts, consumer financial law, bankruptcy and commercial law classes. I write primarily about bankruptcy issues. This month, I intend to primarily blog about the business of higher education. To get a flavor of what I intend to write about, you can check out my earlier blog posts and my forthcoming article on the topic. But I also intend to use this platform to highlight interesting scholarship by other commercial law/bankruptcy folks and to note interesting developments in the consumer law or contracts law spaces.
Thanks to everyone at Prawfs for having me this month! I'm excited to contribute to the community, instead of just obsessing over the submission angsting threads.
Thanks to our August guests, who may be sticking around for a few more days.
And welcome to our September guests--Matthew Bruckner (Howard), Jennifer Bard (Dean at Cincinnati), Jeffrey Lipshaw (Suffolk), Jack Preis (Richmond), and Ari Waldman (New York Law).
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
Wednesday, August 24, 2016
Hear, hear--Blogging Edition
Update: One more on where blogs have gone over their fifteen years of life.
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)