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Friday, October 31, 2008

So long, farewell, and good luck.

Thanks to the good folks at prawfs for allowing me to post over the past few weeks; it has been great fun.  For all those headed to the meat market next week, good luck!

Posted by Hillel Levin on October 31, 2008 at 05:44 PM in Hillel Levin | Permalink | Comments (1) | TrackBack


Happy Halloween!

A number of our guests this past month will be sticking around for a bit longer  but I wanted to take a moment to thank all of them for their wonderful contributions. We hope to see you back here soon.

And as the new month begins, we have another exciting group of new and familiar voices to add to our conversation here. Joining  us for the first time are Sonja West from UGA, Ken Simons from Boston U., and Chris Lund from Mississippi College School of Law. And I'm also pleased to welcome back our stalwart guests, Nadine Farid (Gonzaga), Geoff Rapp (Toledo), and Bill Araiza (Loyola en route to Brooklyn).

Welcome one and all!

Posted by Administrators on October 31, 2008 at 04:55 PM in Blogging | Permalink | Comments (0) | TrackBack

Thursday, October 30, 2008

Bilski and Continued Uncertainty in Patent Subject Matter

Hot on the the heels of my latest post, which discusses algorithms and business methods patents, the Federal Circuit has issued an en banc opinion shaking the tree in In re Bilski.  Alas, the opinion does not follow my suggestions in Everything is Patentable, but the decision isn't as far from my views as it could be. 

Let me be clear - I think this is a patent application that is non-inventive, and that should not issue for a variety of reasons.  I don't think, though, that subject matter is one of them.



The inventors claimed a method for hedging on consumable commodities.  The method involved an intermediary selling commodities at a fixed price and buying commodities at a fixed price.  Hedging, in general, is well known, though the inventors here claim to have come up with a better way to do it.

The Appeal

The patent application was rejected by the PTO as not embodying patentable subject matter and not being directed to the "technological arts."  The patentee argued that his process, however, achieved a useful, concrete result as was contemplated in Federal Circuit precedent.

The Ruling

The Federal Circuit held, 9-3, that the patent was not directed to patentable subject matter.  That's not really a surprise.   Even among the three dissents only one judge (Newman) would have found this to be patentable subject matter.  Further, the specific holding  effectively wiped out the last 10 years of patentable subject matter jurisprudence - it's like Bobby stepped out of the shower on Dallas.

The old rule - State Street Bank and its progeny - basically held that a "useful, concrete and tangible result" was sufficient for a process to be eligible subject matter.  So, methods of managing money by computer or measuring heart rhythms, etc. were useful, concrete and tangible.  Bilski argued that hedging yielded such benefits.  Not so, says the court now.  To the extent all of those cases relied explicitly on that rule, they should not be relied on now.   And here I just finished a class where I drilled that black letter law into my students' heads. 

Here is the new rule - any such process must either be tied to a machine or be a transformation of something physical.  However, the transformation can also be a transformation of data representing something physical.  But, insignificant "post-solution" machines or transformations don't count.   So, because Bilski is not tied to a machine (though no human could do the calculations in the patent), and because the transformations involved are of legal obligations and not anything physical, and because anything physical is "post-solution," the patent is not a "process" and thus not patentable subject matter.  How's that for clarifying things.

Here's how the court gets there:

1.  We know that natural principles aren't patentable.

2.  We know it is difficult to determine what is and what is not a natural principle.

3.  We know for sure that there are two ways to tell if something is not a natural principle:

    A. If it is tied to a machine or

    B. If it transforms the subject matter

4.  Therefore, the only way for a process to be patent eligible is to be tied to a machine or tranform subject matter.

5.  In order to make sure all principles are excluded, insignificant post-solution machines or transformations don't count.

Anyone else see the logical jump from 3 to 4?  I put this leap on the level of (i) if you weigh the same as a duck, you much be a witch (for you Monty Python fans) and (ii) Descartes' proof of the existence of god (for you philosophy fans).  To make the leap, the court considers court precedent in what I consider to be a completely unsupportable way (and Judge Newman's dissent takes the majority to task on this point).  I'll discuss that in another post, as this one is already pretty long.

So what's the problem?

So, what's the problem with the Court's formulation, aside from the major logical flaw?  After all, the concession that the transformation can be of data relating to physical matter is a step forward and something we even argued in our amicus brief

Well, let's start with unsettled expectations.  Is State Street now patentable?  It is a transformation of data relating to money.  Is money physical?  What about transformation of data relating to weather patterns?  That's historical data, but doesn't necessarily represent physical data.  What about communications?  And by the way, if I am transforming data, aren't I tied to a machine?  Why do we need the transformation part at all?

Second, in its effort to deal with the high technology, the court has abandoned low-technology.  What about all those processes out there that have nothing to do with machines or transformations - new methods for threading a needle more quickly (which can have great cost savings in manufacturing), methods for harvesting fruit, methods for manufacturing products by hand (for example forming wrought iron).  One would think that these were what the original process patents in the 1800's looked like, and by this test they are now barred.  At the very least one would have to ask whether molded wrought iron is a transformed substance - not a model of clarity.  I think the ruling can have a real effect on innovation - and not just "soft" innovation, but all innovation.  On a side note, Judge Newman points to English patents from the 1700's that appear to quite clearly be human performed business methods.

Third, just what are insignificant post-solution elements?  How might one ever figure that out?

Fourth, the analsysis of tying something to a machine is less than satisfying.  The court cites Mackay Radio as a prime example.  To me, Mackay is a poster child for why this test fails.  There, a well known equation covered the optimal wire lengths for receiving radio signals.  The patentee claimed an antenna using these lengths.  The Supreme Court said that this was eligible because it was an application of the principle.  It seems to me, though, that there is no principled way to separate the antenna from the principle of nature under the test elucidated here.   In fact, one could easily argue that the antenna was simply an insignificant "post-solution" part of the claim because the "real" solution was the mathematical formula.

Fifth, let's not lose sight of the actual holding here - the machine-or-tranformation test is supposed to tell us whether a claimed process is more than a "fundamental principle."  By saying there is no transformation, the court ruled that the process must, therefore, be preempting a fundamental principle of nature.  But can we really call the process of hedging through fixed price contracts a principle of nature?  Is it really part of the scientific landscape for all to apply in whatever "applied" way they choose?  Does this particular process really preempt a fundamental principle? It seems like the test is trying to shoehorn an otherwise square unpalatable claim into round subject matter rejection.

To be fair, the court is trying to stick with Supreme Court precedent.  Of course, as I discuss just above and in prior posts, that precedent is contradictory, unhelpful, and unanalytical.  Indeed, in order to attempt to make sense of it the Federal Circuit had to jump through some of the big hoops of logic.  In other words, sticking with precedent doomed the effort from the start.

So what's the good news? 

The court at least gives lip service to the notion that this must be a statutory interpretation of the term "process."  This is something I argue in my article.  However, in sticking to Supreme Court precedent - which performs no statutory interpretation - the court doesn't have a firm foundation.

Perhaps more perplexing and dissapointing is the quotation of (and then discarding of) the actual statutory language.  Section 100(b) of the Patent Act says:

The term "process" means process, art, or method, and includes a new use of a known process, machine, manufacture, composition of matter, or material.

The court says tht this doesn't work, because the definition of the word process includes the word process.  Well, that may be, but what about the rest?  A new use of a known process, machine, manufacture, etc.  Doesn't this very statutory language preclued the "tied to a machine" part of the test?  Why can't the process be tied to a composition of matter?  A manufacture? A material?  Even in a world where you want to limit subject matter, to claim that you are interpreting the statute but to then exclude a whole variety of claims that fall directly within the statute does not seem to fit even the most basic of statutory interpretation principles.

So, the good news of focusing on statutory interpretation is greatly tempered byt the bad news of no actual statutory interpretation.   I think there was a way to get to the court's definition of process (or something like it) such that the interpretation actually had foundation in the statute, and it is unfortunate that the court did not take up that opportunity.  Indeed, the Comiskey case, which holds that a method that involved only mental steps is closer to the mark - at least that might fit into the statute because there is no use of any of the 100(b) items.

There is other good news, though:

  • The case does reaffirm that business methods and any other method that meets the test is patentable
  • The case does reaffirm that software is patentable
  • The case makes clear that patents need not cover "technological arts" as the PTO wanted
  • The case makes clear that novelty and non-obviousness have no place in subject matter considerations (the PTO guidelines on subject matter inexplicably have examiners doing prior art searches to determine subject matter eligiblity)
  • The case does make clear that "transformation" is not limited to physical items (though it doesn't go far enough)

Quick notes about the dissents:

  1. Judge Mayer says the court doesn't go far enough, and would bar business methods
  2. Judge Rader says the court doesn't look hard enough (or at all) about why we might want these limitations, and also says that the limitations are too stifling.   The dissent says that this is a natural principle and thus invalid even under the broad definition, so no subtest is necessary here to further confuse things.
  3. Judge Newman takes the court to task on many of the issues discussed here and in my other posts.   Judge Newman looks at Morse the same way I do here - but agreeing with the dissent usually means a failure to win.


Finally, particularly gratifying was this line in Judge Rader's dissent:

Much of the court’s difficulty lies in its reliance on dicta taken out of context from numerous Supreme Court opinions dealing with the technology of the past. In other words, as innovators seek the path to the next techno-revolution, this court ties our patent system to dicta from an industrial age decades removed from the bleeding edge.   

If that sounds familiar, you need look no further than to my earlier post here called Parroting Dicta.  I wrote:

A by-product of the history is what I call "parroting dicta" - the Court makes a statement that is not necessary (or even related to) the holding, and that statement gets repeated in every case, even though it is not necessary for that case either.  Eventually, lower courts and even the Supreme Court start believing the dicta despite the fact that it has never actually been helpful in resolving a case.

Unfortunately, my article didn't get to press on time, so now it will look like Judge Rader's comment justifies mine, instead of the other way around!

And truly finally, some other interesting posts on the topic:

Patently-O - Dennis Crouch

Randy Picker

Legal Times

And a hat tip to Howard Bashman at How Appealing

Posted by Michael Risch on October 30, 2008 at 08:53 PM in Intellectual Property | Permalink | Comments (5) | TrackBack

Mid-Semester Student Evaluations

For the last few semesters, I have asked students to give brief mid-semester class evaluations.  It is about that time of year, so I'd like to hear about others' experiences with this and suggestions for shaping the process. 

I hand out blank index cards and ask students to write down a few things that they like or don't like about the class and to suggest any changes that would improve the class for them.  The emphasis is on practical changes that would improve their experience for the remaining weeks.  The cards are anonymous and I give them a bit of class time to fill them out.  These are informal in the sense that I am the only person to read them and they don't become part of any institutional record.  I've found that  there are some changes I'm not going to make (e.g., handing out powerpoint before class), but that a few can be addressed easily (e.g., more summary of prior material). 

The mid-semester review makes sense to me because students give comments while they still can be addressed.  I have also heard the theory that students feel less need to vent in their final comments  when they've had a chance to put in their two cents.  I wonder if the role of final evaluations in the (junior?) professor's employment file/teaching record sometimes overshadows other aspects.  My hope is that informal mid-semester evaluations allow more room for constructive suggestions.

Posted by Verity Winship on October 30, 2008 at 01:29 PM in Teaching Law | Permalink | Comments (5) | TrackBack


Copysquare_logo_125“Copysquare” is a copyright-licensing scheme I’ve proposed to empower DIY video producers, nano-budget filmmakers, and other citizen media creators by encouraging the sharing of the basic building blocks of media production. It’s the subject of a law-review article I’ve just published (here’s an extended abstract).

Here’s the pitch: Ordinary people now have the means of producing and distributing high-quality video content worldwide. But one shortcoming leaves the full potential of the citizen-powered media revolution unfulfilled: Creators lack ready access to stock footage, sound effects, soundtrack music, and still photography. By fostering a regime of sharing these media workparts, copysquare aims to provide desktop creators with the means to take on increasingly ambitious projects and to attain new levels of production quality.

Copysquare follows in the tradition of, and borrows much of its values from, the free-software/open-source movement and the Creative Commons effort. As with both of these endeavors, copysquare leverages copyright law and standardized licenses to construct a voluntary sharing regime that is insulated from outsiders who would undermine the project by taking unfair advantage of the participants’ generosity. Unlike these prior endeavors, however, copysquare uses certain unique licensing mechanics that are specifically designed to overcome problems associated with the sharing of media workparts. Copysquare’s three basic license provisions are: (1) a requirement of notification, (2) a right to reject, and (3) “favored nations” treatment. The copysquare license says, in short, “You can use my creative work – film footage, picture, sound effect, etc. – in your creative work, but you must notify me that you are doing so (the notification provision), give me a chance to opt out (the right to reject), and you need not pay me or credit me, but if you pay or provide credit to others for the same kind of contribution, you must pay me and credit me on an equal basis (the favored-nations provision).”

Having finished laying the groundwork, my next task is to draft the license itself and make choices about the details of how the scheme will work. (Here’s the project website.) If you would be interested in chipping in your two cents or possibly looking at license drafts, I would be extremely grateful – you can e-mail me at [email protected]

Posted by Eric E. Johnson on October 30, 2008 at 11:38 AM in Film, International Law | Permalink | Comments (2) | TrackBack

Distributive Justice in Law Schools

Sometimes I feel like it's Bill Henderson's world, and I'm just living in it and trying to help connect the dots. So when John McCain talks about "spreading the wealth," I start thinking about distributive justice, specifically who gets what in the law schools that employ some of us, collect tuition from others, and ask still others for money every once in a while.

Our current system of no competition on educational quality among law schools, which I'm trying to help address with the Race to the Top project (download the Voter's Guide to the U.S. News survey here), has serious consequences for distributive justice in law schools.

The first is how we allocate the scarce resources of admission slots and financial aid. I talked a bit about this yesterday, but the basic answer is LSAT scores, as Henderson recently demonstrated. Financial aid and fundraising priorities goes to buying LSAT scores to move up in the rankings, when it could be going to expanding loan repayment programs for public interest or government jobs, or any number of other priorities.

Now, competing for the best students through merit-based aid doesn't sound so bad -- a bit of a waste of money from a public-good perspective -- but not terrible. Until you think about how merit is defined: test-taking speed, wihch is what the LSAT is about in large part.

And, as Bill Henderson has demonstrated in what has to be one of the most important law review article of the past twenty years, the only reason why the LSAT is a good predictor of law school grades is because most law school grades are determined by these time-pressured exams, having little to do with analytic ability or other skills relevant to quality lawyering, and everything to do with speed.

Which brings us to distributive justice problem #2: the next scarce resource we allocate is access to top jobs -- at most law schools, they're only accessible to the top of the class.

And what Henderson and others have demonstrated is that who falls where on the curve is different depending on the assessment method professors choose. That is, if you use a few short memo assignments instead of a time-pressured final exam to determine the grades, different people will get "As" and access to the top jobs. Doing memo assignments -- or final exams with word limits and no heavy time pressure (take-home, 6-8 hr, etc.)-- does a much better job of sorting people by analytic ability and work ethic than the time-pressured final exam. Mike Madison (Pittsburgh) and others have ably discussed the virtue of memo assignments -- one benefit for professors that Glenn Cohen (Harvard) mentioned in a guest blogging stint here is that doing most of grading during the semester frees up valuable time for uninterrupted writing at the end. I've found this to be a huge benefit, and on take-home exams or memo assignments, I've never had a problem doing a curve.

So the question for those law professors (until this year, myself included) who continue to use time-pressured exams to determine most of the grades is: why are you choosing speedocracy over meritocracy?

In the status quo, the speedy high-scoring LSAT folks get the best grades on the first-year time-pressured exams that determine grades, giving them the access to the top jobs that generally pay the most, making them the least in need of significant financial aid, while continuing to receive the most aid.

I'm not the first to criticize legal education on such grounds, I realize, but anyone else think it's time for a change? Law professors can act locally, of course, but competition on quality, through the U.S. News rankings, is the easiest way to do this globally and bring about the change we need. In the Voters' Guide we published earlier this week, we highlighted a set of schools that use "best practices" in legal education such as multiple assessments, feedback during the semester, and less reliance on time-pressured exams -- if U.S. News voters would award these schools high marks, we could have a race to the top that would help students learn more and better, and make law schools more meritocratic.

You can contact us at [email protected] if you want to help; we could use it. In the meantime, I'll shut up for a while until after this other election. Thanks for listening.

Posted by Jason Solomon on October 30, 2008 at 10:37 AM in Life of Law Schools | Permalink | Comments (2) | TrackBack

Berg v. Obama: Finding the proper defendants

One key to teaching procedural classes is to get students thinking about how to frame litigation when it is brought, incorporating all the doctrines and rules that we have been drilling into them. A good new example is Berg v. Obama, the lawsuit filed by a Pennsylvania lawyer to stop Barack Obama from being elected President on the ground that Obama is not a natural-born citizen. The lawsuit was dismissed last week, correctly, for lack of standing.

But let's assume Berg had standing to challenge the deprivation of his constitutional right to vote for an eligible presidential candidate (since many commentators have derided the use of standing as a dodge by Obama and the courts). It is worth thinking about how one could go about bringing such a lawsuit--whom to sue for what claims and what relief. Berg's initial strategy was to sue Obama, the DNC, and the FEC--and only the latter two were targeted on the constitutional claims. The big problem (mentioned, but under-analyzed in the opinion) was that neither Obama nor the DNC is a state (or federal) actor, at least not for purposes of running for election. Moreover, I do not see how, even if a court were to find that Obama is ineligible for the presidency, the court could enjoin Obama from running for president. Enforcement of the prohibition on a non-natural-born citizen becoming President does not rest with the non-natural-born citizen--it is not a constitutional obligation to refrain from trying to become President. It is a duty on the federal and state government officials who control the machinery not to allow him to be selected as President or to take the oath and assume the office. It is true that, in any suit against some state or federal electoral official, Obama would intervene as a defendant under FRCP 24 to protect his interests. But that is different than making him a party in the first instance and having the injunction run against him.

So who should Berg have sued? Let's have some fun. My thanks to my colleague Tom Baker, who wasted fifteen minutes talking through this with me.

The obvious target should have been the Pennsylvania Secretary of the Commonwealth, the executive-branch official responsible for overseeing state elections, including determining ballot eligibility. An injunction could prevent the Secretary from allowing Obama on the ballot or, given the late date, from certifying Obama as the winner of the state popular vote, because doing so would violate the Eligibility Clause, thus violating Berg's right. Actually, Berg named the Secretary, Pedro Cortes, in the Amended Complaint, but Cortes had not been served as of the date of the dismissal.

Of course, that only makes Obama unable to run or win in Pennsylvania. And the electoral map is such that Obama could become President even without winning Pennsylvania. So Berg would have to bring suits in all 50 states and the District of Columbia against the Secretary of State in each state. But Berg would lack standing in any state other than Pennsylvania; he cannot vote in any other state, thus he has not been deprived of his right to vote for an eligible candidate in any other state. So Berg would need to find a voter in every other state who would be willing to sue the Secretary of State in each of these other states. And perhaps the Pennsylvania decision would have a persuasive effect, if not an outright preclusive effect, in the later cases.

Well, OK. What if Berg wants to assert not his right to vote for an eligible candidate in the Pennsylvania election, but his right not have an ineligible person become President, assuming, of course, that Obama wins 270 EC votes-worth of state popular elections (and still putting standing to one side)? Now Berg must enjoin the people in the federal government who would make Obama President. It seems to me Berg might have three options. First, he could try suing the 538 electors (or at least those committed to Obama/Biden) who will "meet" and vote on December 15. But I simply cannot imagine a judge enjoining electors from voting a certain way. It seems like that would create a massive separation-of-powers problem, akin to ordering legislators to vote a certain way, something courts generally are not willing or able to do. Second, he could try enjoining the House of Representatives from certifying the Electoral College results. But this unquestionably would be barred by Speech or Debate Clause immunity. Finally, he could sue Condi Rice, the U.S. Secretary of State, to enjoin her from certifying the results of the House vote accepting the EC results selecting Obama. That, it seems to me, is the only possible way to go.

And just to add three more wrinkles. First, none of the actions described in the previous paragraph would be ripe at this point The need to stop the federal apparatus from recognizing Obama as President and allowing him to take the Oath of Office (or, put another way, Berg's right to have the apparatus not recognize an Obama victory or allow Obama to take office) is not triggered prior to Election Day and Obama actually winning 270 EC votes-worth of popular elections. Second, the political question doctrine would block any injunction from issuing, since the question of eligibility seems to be textually committed to Congress. Of course, if we are going to recognize citizen.ideological standing, we may as well eliminate the political question doctrine.

Third, what would happen if, say, Rice were enjoined from recognizing a House certification of Obama as President? Come January 20, we would have a President who has failed to "qualify," and Joe Biden would become acting president under the Twenty-second Amendment.

All this is my way of saying that, even if Berg did not lack standing, a combination of the limits of the judicial process and our byzantine, multi-layered system for selecting a President makes judicial resolution of this matter virtually unworkable.

Did I miss any other steps that Berg might have taken? Any other bizarre twists that I missed?

Posted by Howard Wasserman on October 30, 2008 at 07:03 AM | Permalink | Comments (15) | TrackBack

Wednesday, October 29, 2008

Prop 11

Although California's Prop 8 is getting most of the country's attention, as a resident of San Francisco I'll have to cast a vote on 22 local ballot measures and 12 state-wide ballot measures.  Picking a President and protecting gay marriage are the easy parts of my job as a voter on Election Day!   Call me crazy, but I find direct democracy invigorating as a citizen.  (I confess that I find Proposition R to give direct democracy a bad name: it seeks to rename SF's sewage plant in "honor" of George W. Bush.)

Prop 11 -- if it passes -- will change how our state (though not Congressional) districts are drawn, moving the process from a legislative one to one controlled by a random sample of lay citizens.  I'll be voting for the measure.   My short argument: the perfect is the enemy of the good ; and if it turns out that this method needs some tweaking down the road, we have a very accessible ballot here to make the relevant changes.  The current method of district drawing is so pathological that a serious change is in order.  And given the Democratic Party's  opposition to any change (they oppose the proposition that is supported by the AARP, League of Women Voters, parts of the ACLU, parts of the NAACP (some oppose it there too), Michael Bloomberg (?)(!), the LA Times, the SF Chronicle), we're not likely to see real reform of redistricting without a ballot measure.  It is, admittedly, a pain to amend an initiative statute (you need another initiative!).  But I have no faith that legislators will ever deal with this problem on their own or that a perfect proposition on the matter will make its way before me.  Proposition 11 is far from perfect.  Yet it is far enough along the path of reform to be worth supporting.

If you have some other views about Prop 11 that you wish to share, we're all ears here!

Posted by Ethan Leib on October 29, 2008 at 02:00 PM in Current Affairs | Permalink | Comments (5) | TrackBack

"Run on the Bank"

A radio interview describing the creation of the FDIC has me thinking about runs on banks.  (NPR interview with author Timothy Egan here.)  In 1933, Roosevelt closed banks for a five-day "bank 300pxwar_of_wealth_bank_run_posterholiday" to slow panicked withdrawals. FDIC insurance was part of the response to bank closures and runs on banks. Apparently Roosevelt later said that, if there had been a widespread run, the insurance could not have covered all of the deposits.  The (unsurprising?) lesson may be that  public perception - even when unrealistic - is central to fixing our financial problems (or at least avoiding new ones).

Roosevelt and his aides seem to have recognized that investor confidence was key.  In his first "fireside chat," in 1933, Roosevelt said that "[a]fter all, there is an element in the readjustment of our financial system more important than currency, more important than gold, and that  is the confidence of the people."  And, as one of his advisors put it: "We knew how much of banking depended upon make-believe or, stated more conservatively, the vital part that public confidence had in assuring solvency."

One more tidbit on "runs on the bank": the phrase - and probably the accompanying fear - has been around since the late 1600s.  A 1697 text said that "Any jealousie or suspicion that they shall not have Money for such Bills on Demand, will occasion a general run."  And the phrase pops up again over the years.  My favorite is from Adam Smith, The Wealth of Nations: "When a run comes upon them, they sometimes endeavor to gain time by paying in sixpences."  A practical solution.  (More from the OED here.) 

Posted by Verity Winship on October 29, 2008 at 10:45 AM in Corporate | Permalink | Comments (0) | TrackBack

Criminal Justice and Family Ties in Action

In Privilege or Punish: Criminal Justice and the Challenge of Family Ties, the book I'm doing with Ethan and Jennifer Collins, the central questions we ask are what role does and should a defendant's family status play in the criminal justice system. Despite a wide array of family ties benefits and burdens, where defendants are treated differently on account of their family ties and responsibilities, we are more often than not quite skeptical about the use of family status itself as a basis for distributing these benefits and burdens. Through the course of our research, we've become perennially interested in the various ways family interests intersect with those of the criminal justice system.

Today, thanks to the indispensable Doug Berman, I just came across US v. Woods, this fascinating 5th Cir opinion vacating a supervised release condition (SRC) imposed by the district court on a defendant prohibiting her from living with persons she was not married to or related to by blood. The district court's SRC is not a straightforward benefit or burden under our analytic framework. The defendant is appealing the SRC and so to her it's not a benefit -- although if the alternative were prison, perhaps she would view it as such. Thankfully, the appellate court realized that prison in this case is not the appropriate baseline to use.  (Nor is it an instance of punishing the defendant's family status; the defendant doesn't face a unique burden attributable to her family status, the way say, omissions liability attaches to spouses but not paramours.)

Despite the difficulty in categorizing this particular SRC as a family ties benefit or burden, I am heartened to see that the higher court realized why this SRC was not sufficiently narrowly tailored to achieve its underlying purpose. One of the primary normative goals we have in our project is to persuade courts and policymakers to move away from relying on family status when making decisions in the criminal justice system about benefits or burdens and instead examine a broad range of caregiving obligations. The lower court's reliance on "ceremonial marriage" and "blood" relationships to determine who can live with the defendant upon release is indicative of the regime we're seeking to overthrow in the law...and I'm very pleased to see we have allies on the Fifth Circuit in our endeavor.

Posted by Administrators on October 29, 2008 at 10:19 AM in Article Spotlight, Criminal Law, Dan Markel, Ethan Leib | Permalink | Comments (2) | TrackBack

Dealing with Controversial Patent Subjects

In my prior posts, I introduced the basic thesis of a forthcoming article: that courts should abandon all attempts to bar particular patents based solely on their subject matter.  I also discussed some of the problems, namely inconsistent (and impossible) application of such rules and introduced the solution: rigorous patentability.

This post applies rigorous patentability to a couple of subject areas as an example.

Natural Phenomena

It is nearly impossible to tell whether an invention is a natural phenomenon or an application of a natural phenomenon.  Perhaps the best example of this was Mackay Radio, in which the patentee claimed a radio antenna with wires set to specific lengths based on a well known discovery that wires set to those lengths were useful for receiving signals.  There could not be a more direct application of a natural phenomenon, but the Supreme Court did not invalidate the patent. Instead, it held that the patent claimed an application of the natural principle.

It did, however, limit the patentee to exactly the wire lengths described by the equation because no other lengths were described or enabled.  Thus, a competitor that slightly varied the lengths was held not to infringe.  In other words, rigorous patentability (specification) was used to limit the inventor.

This same rationale might be used to answer the vitamin deficiency question of Metabolite (discussed here).  A primary concern with the claim was that use of any homocysteine test satisfied the claim, even if such test wasn’t part of the patent.  However, it is important to note that no one had devised any way to measure homocysteines at all prior to the patent.  The question, then, is not about subject matter, but instead about whether the patentees described and enabled enough of a measurement test to claim the broad scope of the claim.  This is a question I can’t answer, but it is the direction we should be looking.

Computer Software and Mathematical Algorithms

Another problematic area is mathematical algorithms.  There is no good way to determine what is a “pure” algorithm and what is not.  Under rigorous patentability, though, we don’t have to answer that difficult question, nor should we try.  Instead, we ask whether the algorithm “does” something for purposes of utility.  An algorithm standing alone will be unpatentable because it achieves no useful end.  When put into software – which is admittedly a big series of algorithms – the whole program can become patentable because it becomes useful.

Business Methods

As an extension of computer software, business methods are processes used to perform non-manufacturing tasks, such as money management, sales transactions, or other steps that do not transform a physical object.  One type of business method under attack is the tax method patent – claims to tax savings by taking certain steps that minimize taxes under the Internal Revenue Code.

With rigorous patentability, these patents would be allowable subject matter, but few would actually issue.  Business methods are of the proper category – they are processes.  Note that nowhere in the Patent Act is a process required to work on physical objects, and the code explicitly defines a process [Section 100(b)] to include a new use for an existing machine.   Well, inventing a new use for a computer fits that bill. 

Even so, most business methods will run into other patentability problems.  First, computerizing something that is known to be done without a computer is obvious – the Supreme Court addressed this 30 years ago in Dann v. Johnston.  Even if the task was never done manually, it might still be obvious if it is something anyone skilled in the area might think of if only they had a computer (online auctions, for example).  Even then, strict written description and enablement requirements mean that in order to claim a broad business method one would have to really show that he or she had invented the entire field – something that is difficult. 

Evidence bears this out – despite being considered patentable subject matter, a very small percentage of business methods patents actually issue.

These are just three simple examples – there are more in the paper.  My next post will discuss a thorny issue – DNA patenting.

Posted by Michael Risch on October 29, 2008 at 07:52 AM in Intellectual Property | Permalink | Comments (1) | TrackBack

Law Schools Competing On Quality

Why should anyone care about the stupid U.S. News survey anyway? According to a commonly held view, the rankings are silly, and the thing to do is ignore them. But I think this view is quite misguided.

It turns out – and this is the basic premise of the Race to the Top project that I helped start recently -- that a major obstacle to the improvement of legal education generally is the lack of competition on quality among peer institutions, and that this lack of competition also leads to other bad consequences for law schools like spending lots of money on buying LSAT scores and shifting full-time students into "part-time" programs. And the easiest way to address both sets of problems is by taking the U.S. News rankings more seriously, not less, and focusing on this survey.

What would such competition look like? In the Voter's Guide we sent out earlier this week to U.S. News voters, we said: "For example, take Penn and Northwestern, two national schools that compete for students and are close in the overall rankings. Both have very high student satisfaction and bar passage rates. But consider the curricular differences in areas particularly important in preparing students for practice: Northwestern has top-10 (or close) legal writing, clinical, dispute resolution and trial advocacy programs in last year's U.S. News surveys of faculty in these fields. Penn is not ranked in any of these areas, and is one of the few remaining law schools that uses third-year law students to teach 1Ls legal research and writing. Northwestern is also moving towards an increasingly innovative, practice-oriented curriculum, all of which suggests that Northwestern has a higher-quality J.D. program than Penn."

This kind of head-to-head comparison is completely lacking -- there's been no information out there on the relative quality of the education provided at different schools -- and as a result, U.S. News voters simply replicate the previous year's overall US News rankings when filling out the surveys. Glossy brochures notwithstanding, these quality assessment ratings rarely change from year to year, and when they do change over time, it is in response to a shift in a school's overall ranking (driven by higher LSAT scores, for example), not any underlying shift -- of reality or perception -- on the quality of the JD program. By the way, if you don't like the criteria used above to compare schools, would love to hear what existing data you would look to instead in assessing the relative quality of a school's JD program.

To understand why the lack of competition on quality has other bad consequences, recall there are four basic components of the U.S. News formula:
40%: Quality Assessment, from surveys of law professors (25%) and lawyers/judges (15%)
25%: Student Selectivity, from LSAT Scores (12.5%), UGPAs (10%), and Acceptance Rate (2.5%)
20%: Placement Success, from Emp rates at graduation (4%), 9 months out (14%), and Bar Passage (2%)
15%: Faculty Resources, from Expenditures per student (11.25%), Student-Faculty Ratio (3%), and
Volumes in Library (.75%)

So since schools can't move up on the quality factor (40%) in the rankings, what do they do? They start competing on the next biggest category in the U.S. News formula -- LSAT scores and undergraduate GPAs -- by emphasizing these things more in admissions, and throwing money at (buying) higher credentials. Bill Henderson provides evidence of this trend here. How much money is your school spending on "merit-based" financial aid, and how is merit determined? I'm guessing it's not based on valuable graduate training in another discipline, interesting work experience that indicates potential excellence as a lawyer, or being the first in the family to go to a professional school.

Are we really any better than Baylor, which literally paid people to retake the SAT? I'm not so sure. Here's our deal: take that Kaplan course if you can afford it, work really hard studying for the LSAT, and if you're speedy enough, we'll give you a full ride. Sounds like paying for LSAT scores to me; we're only a tad more subtle.

The good news is we can fix this if we want to. It's actually not this pesky magazine controlling our priorities -- we (law professors and lawyers) control the U.S. News rankings, 40% of it, the largest category by far. If we have real competition on quality, there will be less need for schools to compete on other things. We just need to get enough information flowing to make competition on quality possible, and then start filling out the survey accordingly. I hope those voting this month and next will start now.

Posted by Jason Solomon on October 29, 2008 at 07:15 AM in Life of Law Schools | Permalink | Comments (9) | TrackBack

Political Haikus

Over at Slate, 55 of the 57 folks who work there and are permitted to vote are explaining why they are voting for Obama. Here's my favorite succinct explanation, in the form of a political haiku by Bill Smee, the exec producer of Slate V.

McCain picked Palin.
Already 72.
Might die in office.

Feel free to craft your own in the comments. Remember 5-7-5. For example:

Iraq. Missed Chances.

Cool. Curious. Con Law prawf!

She's a chowderhead.

Posted by Administrators on October 29, 2008 at 01:25 AM in Current Affairs | Permalink | Comments (3) | TrackBack

Launching the IP Colloquium

Doug Lichtman over at UCLA has a new venture that I thought might be of interest to our readers and their lawyer friends of the IP persuasion.  The project is called the Intellectual Property Colloquium, and it is essentially an online audio program devoted to intellectual property topics.  It aspires to be something like an NPR talk show, but it will focuse on copyrights and patents, and is aimed primarily at a legal audience.  The programs are neither lectures nor debates.  They are conversations, ideally thoughtful ones, with guests drawn from academia, the entertainment community, and the various technology industries.

Each program lasts one hour; is downloadable; and (the kicker) any lawyer who listens to our programs can earn (free) CLE credit in California, New York, and any state that accepts one of those through reciprocity.  (We should soon be able to offer CLE in all the states, but for now the combination of California, New York, and reciprocity should cover most of our audience regardless.)  Doug hosts each program; and the first one, a lively conversation with Fred von Lohmann of the EFF, is up and ready to go.  A schedule of up-coming shows is already posted on the site, as are a variety of subscription features that provide updates every time a new audio is available.

The website is here: www.ipcolloquium.com.  Sounds like a great project: high-quality, convenient, free, audio CLE, aimed at the sophisticated legal crowd.

Now, why don't we do that in other areas? Or do we?

Posted by Administrators on October 29, 2008 at 12:02 AM in Intellectual Property | Permalink | Comments (0) | TrackBack

Tuesday, October 28, 2008

Introducing the First Voter's Guide to U.S. News

It's the final days of the election for many law professors: that is, the U.S. News survey asking voters to assess the quality of each school's JD program is due on Thursday. The Race to the Top project, which Dave Fagundes and I started a few months ago, just put out our first Voters' Guide in time for the final voting from the academy, and in advance of the lawyers/judges survey next month. We emailed it yesterday to all the law professor voters, but if you didn't get it by chance, you can download it at our website here.

For another indicator of the quality of the JD program, look at the student satisfaction data extracted from The Princeton Review by Paul Caron over at TaxProf Blog -- the key is to compare peer institutions in order to give different ratings to competitors, and thereby promote competition on quality. If everyone in the top 20 gets the same score -- a "5," for example -- then they just end up competing on who can throw the most money at students with high LSAT scores. This is essentially the status quo.

Over the next few days, I'll say more on why people who care about things like justice and meritocracy should care about this U.S. News survey -- yes, there's a presidential election, a global economic crisis, a quite-possibly innocent man about to be executed here in Georgia, and a few other things -- but this isn't just navel-gazing. It matters.

Posted by Jason Solomon on October 28, 2008 at 11:42 AM in Life of Law Schools | Permalink | Comments (0) | TrackBack

Who Are Investors?

In the context of possible new regulation in the financial markets, it's worth asking an old and fundamental question: who are the investors?   The type of regulation we choose turns in part on the answer.  Our current financial woes put pressure on this question, but so does the longer-term trend of institutionalization or "deretailization" of the US markets.  In other words, while our system is rooted in protection of retail investors and much of the political rhetoric reflects this ("mom-and-pop" investors), institutions such as mutual funds, pension funds, etc. increasingly play a role.   

My modest aim here is to point you to some "food for thought."  First, identifying the investors comes up even in the most mundane of contexts.  Take the SEC website.  Featured at the top of the page these days is the headline "SEC Protecting Investors, Markets During Credit Crisis" and a link to the "SEC Actions During Credit Crisis."  What audience does this target?  Sophisticated investors don't need to read it.  I suspect Congress has heard it in other forms.  The press?  Do retail investors really read it or care?

Second, Donald Langevoort has a paper called The SEC, Retail Investors, and the Institutionalization of the Securities Market recently posted to SSRN.  In a passage that is almost an aside, he complicates the debate over how institutionalization should influence regulatory choices:

I am convinced that part of the motivation for the substantive and procedural disclosure requirements of US securities regulation increasingly is disconnected from shareholder or investor welfare per se, and instead relates to the desire to impose norms that we associate with public governmental responsibility - accountability, transparency, openness and deliberation - to institutions that have comparable power and impact on society.  It is a familiar point that many large corporations have more economic power than many counties and cities, perhaps even a handful of states.

Posted by Verity Winship on October 28, 2008 at 10:20 AM in Corporate | Permalink | Comments (0) | TrackBack

Law School in Two Years...

Over the past year, there has been a significant amount of news coverage over two-year JD programs. TIME Magazine ran an article on Northwestern Law School’s newly launched, two-year J.D. program over the summer ("Fast-Tracking Law School"), while the topic has been touched on throughout the legal blogosphere (Leiter, Paul Caron's Tax Blog,, the Volokh Conspiracy, Legal Theory Blog, the WSJ.com blog, etc.). Rick Garnett had a thoughtful post and discussion on the topic here on PrawfsBlawg. Although most of the flurry of news occurred in June and July, I thought I would write a quick post.

What I find interesting about the discussion is some consternation over whether a two-year JD program can work. As legal educators around the country reevaluate and redesign law school curricula -- spurred by the 2007 Carnegie Report and other recent publications -- some have asked, “Is it possible to obtain all the knowledge and skills necessary to be a successful lawyer in just two years?”

A preliminary point: although Northwestern has begun some exciting changes at its school, a two year program is not new. Dayton has had a successful two-year program since 2005. Southwestern has had a successful two-year program since 1974. Southwestern's program was the first ABA-approved accelerated program in the nation established with the aid of the largest federal grant awarded at that time to any law school by the Fund for the Improvement of Post-Secondary Education. I understand at various times that other schools too have had two-years programs and its not unheard of for students to graduate at an accelerated pace (I believe Michigan State may have had a two-year program at one time, Iowa had a two year + summer program and, if I remember correctly, Justice Lewis Powell graduated from Washington & Lee in two years, as one prominent example).

But on to the issue. On the one hand, the preliminary point answers the question -- we know two-year programs work and provide students with the skills they need because schools like Dayton and Southwestern have been doing it for years. But I agree that it's not entirely clear pedagogically the benefits of simply squeezing three years of the traditional curriculum into two. As schools (presumably there may be others) that consider following Southwestern's, Dayton's, and now Northwestern's lead by exploring establishing two-year programs they need to be careful that they are not simply creating an "accelerated" experience.

A two-year program, if done well, almost certainly requires significant curricular changes. Southwestern's success with its two-year program has been to emphasize conceptual learning and simulation training. The program relies heavily on simulated client files and hypothetical problems as teaching tools. The program integrates theory and practice and benefits from small classes. Northwestern too is not just simply creating an accelerated program. It intends to provide its students with integrated business and management training in an attempt to give its graduates a step up when they begin their careers (see this interesting discussion at the Empirical Legal Studies blog). A detailed description of how two-year programs can work and other alternatives to traditional legal education appears in some older law review articles (e.g., 35 Journal of Legal Education 97 (1985) and 68 A.B.A. J. 558 (1982)).

On balance, two-year programs seem to fit a unique niche for certain kinds of students (similar to evening programs for students who are employed full-time, and part-time day programs designed for students with child or elder care responsibilities). So I would be interested. Are there other schools that are looking into creating two-year programs? Or part-time programs designed for parents with child-care responsibilities? Or other programs that serve unique niches?

Posted by Austen Parrish on October 28, 2008 at 01:23 AM | Permalink | Comments (4) | TrackBack

Monday, October 27, 2008

Oh, Major League Baseball...

As a die-hard baseball fan, of course I'm glued to the World Series. And so I had to write something to note the absurdity of the way MLB is spinning the current rain delay in Philadelphia: "We had to delay the game based upon these conditions, and so we're lucky that Tampa scored in the top of the sixth. Now, the game would be suspended if we couldn't resume play, rather than having to call the game in the Phillies' favor."

I call BS. Had the game been tied two or three innings ago, they would've thrown the tarp on the field then. The conditions were horrible, and unfit for a little league game, let alone a regular-season major league game (or, dare I say, the World Series). They didn't call a rain delay precisely because they were waiting for Tampa to tie (or go ahead) so they could do exactly what they did. It's the right thing to do now, but letting the teams play through two-plus innings of simply unplayable conditions absolutely wasn't--and they're lucky no one got hurt.

Once again, MLB is doing its best to ruin The Game.

Posted by Steve Vladeck on October 27, 2008 at 10:50 PM in Current Affairs, Steve Vladeck | Permalink | Comments (4) | TrackBack

Credit Where It's Due

A few weeks back I had some critical things to say about the Volokh folks' blogging on the election.  Although I regret the last line of that post, I thought then and still think that 1) the criticism was itself fair, and it is too trite a defense to say that people can blog about what they like; and 2) they're adults and can take honest criticism.  I didn't subscribe to Dan's blog version of the 11th Commandment, although I certainly am not convinced that shooting matches between blogs are especially productive.

That having been said, it behooves me to point out that Orin Kerr and David Bernstein have excellent posts up today taking some of the wind out of the sails of a Drudge story capitalizing on an old radio interview to suggest that Obama would use the courts as a tool of economic redistribution.  The posts are excellent not because they support Obama -- that's less my concern, and in any event both of those writers make clear that they do not support Obama -- but because they insist on reasonably and thoughtfully reading the interview in its appropriate context.  The posts leave room to criticize Obama for supporting economic redistribution at all, but make clear that the interview itself was really about whether the courts should be vehicles for redistribution via positive constitutional rights -- a point on which Obama suggests he would prefer political change to judicial fiat. 

Good reading, in both cases.

Posted by Paul Horwitz on October 27, 2008 at 03:00 PM in Paul Horwitz | Permalink | Comments (0) | TrackBack

Greg Mankiw threatens work stoppage if Obama is elected

From Greg Mankiw's blog:

Here is a question that you may have been thinking about: How do the different candidates' tax plans affect Greg Mankiw's incentive to work?

* * *

Let me start with my personal situation: I am a pretty lucky guy. I have a comfortable, upper middle class life style that includes one house, two cars, three kids, a wife, and a dog. I am fortunate enough that I don't have trouble keeping that going. I am also fortunate enough that I don't crave much more than I already have. I don't particularly want to own multiple houses or drive a Ferrari or wear Armani suits. You might say that I am close to being sated.

On a regular basis, I am offered opportunities to make some extra money. It could be giving a talk, writing an article [ed. note - !], editing a journal, and so on. What incentive is there to put forward that extra work effort?

To a large extent, the beneficiaries of that extra effort are my kids. My lifestyle is, as a first approximation, invariant to my income. But if I make an extra few dollars today, I will leave more to my kids when I move on. I won't leave them enough so they can lead lives of leisure, but perhaps I will leave them enough so they won't have to struggle too much to afford a downpayment on their houses or to send their own kids to college.

Do you notice a rather big part of Mankiw's income that isn't discussed here?  Isn't he a professor somewhere?  I imagine if the H decided to cut all professors' income by half or decided to fire the good professor, he would find that his "lifestyle" is perhaps not so " invariant to [his] income."  But that couldn't happen, could it?  He's tenured at a very wealthy university.  The chances that this economic downturn will affect him directly are pretty slim.  Nice!

Anyway, he continues.

Let me try to put each tax plan into a single number. Let's suppose Greg Mankiw takes on an incremental job today and earns a dollar. How much, as a result, will he leave his kids in T years?

The answer depends on four tax rates. First, I pay the combined income and payroll tax on the dollar earned. Second, I pay the corporate tax rate while the money is invested in a firm. Third, I pay the dividend and capital gains rate as I receive that return. And fourth, I pay the estate tax when I leave what has accumulated to my kids.

Notice how he slips the corporate tax rate in there, because he assumes that he will invest all of his children's future money in stocks.  T-bills too safe, huh?

Let t1 be the combined income and payroll tax rate, t2 be the corporate tax rate, t3 be the dividend and capital gains tax rate, and t4 be the estate tax rate. And let r be the before-tax rate of return on corporate capital. Then one dollar I earn today will yield my kids:


I guess he assumes that he'll do no estate planning. 

For my illustrative calculations, let me take r to be 10 percent and my remaining life expectancy T to be 35 years.

If there were no taxes, so t1=t2=t3=t4=0, then $1 earned today would yield my kids $28. That is simply the miracle of compounding.

Ah, yes.  They should really get the $28.  Anything less is socialism.

Under the McCain plan, t1=.35, t2=.25, t3=.15, and t4=.15. In this case, a dollar earned today yields my kids $4.81. That is, even under the low-tax McCain plan, my incentive to work is cut by 83 percent compared to the situation without taxes.

Under the Obama plan, t1=.43, t2=.35, t3=.2, and t4=.45. In this case, a dollar earned today yields my kids $1.85. That is, Obama's proposed tax hikes reduce my incentive to work by 62 percent compared to the McCain plan and by 93 percent compared to the no-tax scenario. In a sense, putting the various pieces of the tax system together, I would be facing a marginal tax rate of 93 percent.

The bottom line: If you are one of those people out there trying to induce me to do some work for you, there is a good chance I will turn you down. And the likelihood will go up after President Obama puts his tax plan in place. I expect to spend more time playing with my kids. They will be poorer when they grow up, but perhaps they will have a few more happy memories.

Is this tongue-in-cheek?  I hope so.  The fact that he's writing this on a blog that has no advertising only increases the sense of irony.  (Perhaps his blog header should be: "I'M BLOGGING AWAY MY CHILDREN'S INHERITANCE.")  But if this is all a joke, apparently Instapundit isn't in on it.

Posted by Matt Bodie on October 27, 2008 at 12:15 PM in Corporate | Permalink | Comments (8) | TrackBack

BIDs & my egalitarian neighbors

While my former neighbors back in Michigan wade through autumn leaves, I shuffle through ankle-deep trash here on Court Street in Brooklyn. The thought occurred to me that I ought to start a petition drive for a Business Improvement District -- a BID -- to clean up the menus, fliers, free newspapers, and other urban detritus that afflicts our local commercial strip. BIDs are simply special assessment districts that charge the property owners within their limits for some extra services -- usually beautification like trash pickup, signage, plantings, etc. The charges tend to be small, but the aesthetic improvements can be significant: Nearby Montague Street in Brooklyn Heights is virtually trash-free compared to Court despite the former's heavier foot traffic.

But my proposal for a BID went down with the neighborhood leaders like a wise guy in cement galoshes dumped in the Gowanus Canal. One local activist -- a neighbor who has commendably contributed his time and labor in planning and lobbying for local parks -- told me that BIDs are just a conservative device to privatize the neighborhood. "If picking up garbage is such a good idea, then we should press for better pickup everywhere in the city," he said. "Why should our neighborhood get more services just because we are a squeakier wheel?"

This question raises a surprisingly common complaint about BIDs. (See, for instance, Audrey McFarlane's piece in the Stanford Agora). But the complaint strikes me as egalitarianism run amok. Yes, BIDs could be said to "privatize" neighborhoods in an arguably regressive way: Neighborhoods with greater tax-paying capacity might be more willing to lobby for extra services. But the same complaint applies to any effort to mobilize a neighborhood: Middle-class neighborhoods with highly educated residents form civic associations and complain to police and school authorities more frequently, because education bears a high correlation to having a taste for political and civic activity. Should the lawyers, brokers, psychologists, and other highly educated denizens of Park Slope, Morningside Heights, etc, therefore resign from the PTA and stop writing letters to the Times, just to insure that their neighborhoods are as ill-served by city hall as the rest of New York?

Of course, being a lonely Red State fugitive surrounded by a sea of earnestly Left New Yorkers, I tend to be perversely attached to privatization of all sorts. Distrusting my own instincts, I ask any prawfs out there who care about local government: Does my neighbor suffer from irrational and politically paralyzing egalitarianism, or am I just a privatizing reactionary who will be swept into the dustbin of history after November 4th?

Posted by Rick Hills on October 27, 2008 at 08:54 AM | Permalink | Comments (1) | TrackBack

Rigorous Patentability

Given that patentable subject matter rules are very difficult to apply, I make a modest proposal.  Rather than relying on judicially made limits on the types of patents allowed, we should instead allow any patent that falls into one of the statutory categories, but then more rigorously apply the other patentability standards:  utility, novelty, non-obviousness, and specification.  If these standards are strictly applied, the worries we might have about allowing certain types of patents are mitigated, because bad patents will still be rejected. 

Here is what I mean by rigorous patentability.  Most of these rules already exist in the precedent, even if they aren’t enforced as often as they should be.  Some, however, are a bit of an extension of current law.

Statutory Category: A claimed invention must fit into one of the statutory categories: “process, machine, manufacture, or composition of matter, or any new and useful improvement thereof.”   While rare, there are “inventions” that may fall outside these categories.   The question should not be whether a claim is, for example, a law of nature, but instead whether the claim falls into a statutory category.

Utility: A claimed invention must meet “practical utility” standards; the invention must do something.   Thus, process and product claims must lead to an end result that can be used to some practical end, and not just be useful for further study.

Novelty: A claimed invention must be “new.”   No patent should issue for compositions that exist either artificially or naturally, unless they are purified to a point that the invention is different in kind from what exists in nature.   This standard may be difficult to apply, but the focus of patentability decisions should be on novelty and not subject matter.

Obviousness: A claimed invention must be non-obviousness, and the determination of obviousness should not be limited to any particular test - the ability to reject patents as obvious requires flexibility. For example, “brute force” inventions that are the result of computer processing time or repetitive combinatorial experiment rather than invention would usually be obvious.  Compositions created through the application of known processes to known starting materials would also be obvious.  Inventions that were “obvious to try” would be obvious. Inventions that are combinations of known elements that do not provide for functionality beyond the known elements would be obvious.   Of course, not all inventions meeting the above criteria would be obvious – those determinations would have to be made on a case-by-case basis.

Specification: A claimed invention must be supported not only by a detailed enabling disclosure about how one may make and use the invention, but also by a full description of the invention, such that the PTO, courts, and other interested parties can determine whether the inventor actually invented the fullest scope of claimed subject matter and “possesses” all the elements of the claimed invention.

I’m certain this all sounds pretty abstract.  In the remaining couple of posts in this series, I’ll provide some concrete examples that apply rigorous patentability rules to areas that are currently hotly debated subject matter issues.

Posted by Michael Risch on October 27, 2008 at 07:48 AM in Intellectual Property | Permalink | Comments (0) | TrackBack

Elections, Propositions, and Demonstrations

As the New York Times has reported, the battle over same-sex marriage "is raging like a wind-whipped wildfire" in California. Proposition 8 on this year's ballot is an attempt to amend the California constitution and reverse a California Supreme Court decision permitting same-sex marriage. According to the Associated Press over $60 million in contributions has been spent for and against the proposition (apparently a record for a ballot initiative).

I don't want to comment on the substance of the same-sex marriage debate. Instead I have a question about one of the strategies being used to drum up support for, and opposition to, the proposition. Yesterday, across from a local McDonalds was a group of maybe 10 demonstrators with signs and placards, and they were chanting "yes on 8" as cars drove by -- usually zipping by at 40-50 mph. It's been scorching hot in Southern California this weekend, and standing on the concrete sidewalk looked brutal. A few miles later there was a group of 5 or 6 other demonstrators waving "no on 8" signs in front of a gas station (there was a single counter-demonstrator across the street with a "yes on 8" sign, looking upset that he was outgunned 6 to 1, but yelling loudly to make up for it).

I certainly understand the purpose of protests outside say the Democratic or Republican National Conventions, or a federal building, or a courthouse with a large number of demonstrators and press coverage.... but a few people outside a McDonalds or a gas station? How effective can that be? I'd be surprised if anyone driving by had a sudden startling revelation: "how could I have been so wrong, I was planning to vote one way, but now I'll vote the other!" Perhaps organizers are keeping their fingers crossed that they will get some mileage from their slogans. Certainly, both sides have been oblique in their advertising -- both rarely mentioning same-sex marriage directly. I saw a sign that said something like "Yes on 8 - Protecting California Children" - which, to make an understatement, seems a tad misleading even for those concerned with same sex marriage being mentioned in schools. But does anyone pay any attention to a handful of people on the side of a road yelling at passing cars? If anything, I tend to think it undermines their position -- frankly, seeing terribly sun-burned people, hopping up and down, and yelling nonsensically at cars (at least it sounds that way at 50 mph) has a tendency to make me want to vote the opposite regardless of what the issue is.

So, I'm interested. I am not concerned with people holding signs and staking their positions -- if that's the way someone wants to spend their weekend, all the power to them. Perhaps this is simply evidence of a thriving democracy; something to be celebrated. But is there any indication that these sort of demonstrations have any effect at all on an election?

Posted by Austen Parrish on October 27, 2008 at 01:46 AM | Permalink | Comments (5) | TrackBack

Sunday, October 26, 2008

Bleg for readers of Privilege or Punish

The book I'm working on with Ethan and Jennifer Collins, Privilege or Punish: Criminal Justice and the Challenge of Family Ties, is ready in draft form, and we'd be very keen to find folks (with interests, if not competence in, in legal theory or crim, family, or con law) who may want to give the draft a read before November 15th. (All told it's about 100,000 words including footnotes.) There's a good bit of new material in there that would benefit from fresh eyes. The first half of the book involves a substantial retooling of our 2007 article, and we've drafted a meaty conclusion addressing, among other things, domestic violence. We've also tried to incorporate feedback from the wonderful responses Professors O'Hear and Hills did for the forthcoming mini-symposium on Punishing Family Status. If you think you'll have some time, let me know and I'll email you a copy; we'd be most grateful for any feedback at macro and micro-levels. Thanks.

Posted by Administrators on October 26, 2008 at 02:00 PM in Article Spotlight | Permalink | Comments (0) | TrackBack

Some links for Sunday

I've been submerged lately under a mound of deadlines and other tasks, but I thought I'd surface quickly to suggest a few pieces I came across that might be of interest.  First, in the context of academic freedom and the proper administration of university goals, I want to highlight two of Peter Berkowitz's recent pieces. The first is a review of Stanley Fish's new book on academic freedom, Save the World On Your Own Time. Peter's review is largely appreciative of the descriptive aspect of the book, but tart in its reception of Fish's prescriptive measures. The other piece by Peter looks at three lawsuits trying to hold universities accountable to their own procedures and practice-- Dartmouth's alumni controversy, Duke's lacrosse scandal fallout, and Princeton's donor-kebob problems. I suspect at least Paul and the Ricks might be interested in these issues.

Second, as the political season reaches its crescendo, lots of silliness continues. One beloved friend repeatedly invites me to the Facebook group, Joe Lieberman is a Shandeh (Yiddish for embarrassment). I doubt I'll join. I understand why people are upset with and disagree with Lieberman, but I don't understand why there's so little basic tolerance for people of opposing views--like another friend who threatens to defriend any known McCainiacs from her Facebook profile. (These aren't even academics, Rick!) The reason I mention Lieberman is that he's a useful juxtaposition for those Dems who now welcome Obama's embrace of Republican Senator Chuck Hagel. I don't suggest they're an identical comparison, but if you take a look at tomorrow's issue of the New Yorker, you'll see a long profile by Connie Bruck of Senator Chuck Hagel, who reports his bitterness about being exiled (or at least spiritually separated) from his fellow Republicans. Excerpts from the New Yorker PR person's summary after the jump. If you're a Dem who's upset with Lieberman for his "straying," ask yourself whether you'd be equally upset with Hagel if you were a Republican for his "maver-ickiness." My sense is that there's been a lot more grousing about Lieberman and the politics of betrayal. My view is that both are simply voyaging in conscience on what they regard as the main issue of our time, and so we'd all be better off respectfully disagreeing. It's rather sad when politics devolves to this:

Regarding disparaging comments that Vice-President Dick Cheney made about Hagel after the resolution, [Hagel's wife] says, “That’s O.K. We don’t breathe the same air as Cheney or Rove. We cancel social engagements if we look at the list and see that they’re on it.”

Last, on a less bilious note, here's a lovely and penetrating essay, Fear of Fun, on the struggles associated with growing up and mensching out by former Prawfs-guest, Jay Michaelson, which I just discovered last night despite its origins two years ago. (Description of the Hagel piece after the jump.)

Connie Bruck profiles Senator Chuck Hagel and explores his reluctance to support John McCain, despite their close personal relationship and mutual respect. McCain, Bruck writes, considered Hagel “among his closest friends in Congress. . . . Both were hard-driving, politically conservative, hot-tempered, and humorous. They had served in Vietnam and were known as independent thinkers, averse to Party orthodoxy.” Hagel was even a co-chair of McCain’s campaign for President in 2000. Yet, Bruck writes, “from 2004 on, McCain, in his desire to win the nomination, had embraced Bush’s policies ever more zealously, while Hagel had become the Administration’s most severe Republican critic. . . . In some ways, Hagel is far more of a maverick than McCain has ever been, and his endorsement would likely sway independents whose votes McCain probably needs in order to win.” In early June, McCain and Hagel met in Hagel’s office on Capitol Hill. They discussed their disagreements on the Iraq war and engagement with Iran, and Hagel warned McCain about waging the kind of vicious campaign that had defeated McCain in 2000. Bruck writes that “after the meeting . . . any possibility that he might endorse McCain seemed to disappear.” Hagel says that he’s been “very disappointed” by McCain’s campaign. “He gave one unifying speech and then has spent fifty million dollars to destroy his opponent.” Hagel tells Bruck that the rift between him and McCain is deeper than their differing views on the Iraq war. “In good conscience, I could not enthusiastically—honestly—go out and endorse him and support him when we so fundamentally disagree on the future course of our foreign policy and our role in the world.” He laments that the war in Iraq and the Bush Administration’s surge strategy, which McCain has championed, have “consumed our capacity to deal with anything else in the world,” including the region along the Afghanistan-Pakistan border that is “the biggest threat to our security and the world’s security.” Hagel insists that “whether we like it or not, there will be no peace or stability in the Middle East without Iran’s participation.” Of McCain’s plan to establish a League of Democracies, he says, “In order to solve problems, you’ve got to have all the players at the table,” his voice rising. “How are you going to fix the problems in Pakistan, Afghanistan—the problems we’ve got with poverty, proliferation, terrorism, wars—when the largest segments of society in the world today are not at the table?” Similarly, he tells Bruck that McCain’s repeated calls to expel Russia from the Group of Eight was one of the reasons that he could not endorse him. When Bruck asks Hagel if he would accept a post in a McCain Administration, he says that he has considered it, but “I don’t see John changing his position and direction and concept of the American role in the world, to adjust to mine.” He continues, “I’m not going to change mine to adjust to his. And I serve at the pleasure of the President. So it wouldn’t work.”

Hagel is retiring from the Senate this year, and according to several people close to him, Bruck writes, in the past few years he has “become increasingly discouraged by his inability to influence the Bush Administration and his Republican colleagues, particularly on Iraq-war policy.” Hagel tells Bruck that on the morning that the Senate Foreign Relations Committee debated the surge, as he listened to his colleagues discuss sending more troops to Iraq, he was struck by their “cavalier approach, as if it were an abstraction,” and thought, “Have we learned nothing in the last four years? And we’re now going to send thirty thousand more troops into this meat grinder? For what? . . .We were not a co-equal branch of government. We were just kind of this afterthought to the President, and whatever he tells us to do, we kind of docilely go along.” When the committee passed a resolution, sponsored by Hagel and Joe Biden, opposing the escalation, Hagel says, “I was called a ‘traitor,’ and I was called ‘disgusting’ ” by his Republican colleagues. “His position in that caucus has been a little like a skunk at a garden party,” Hagel’s wife, Lilibet, tells Bruck. Regarding disparaging comments that Vice-President Dick Cheney made about Hagel after the resolution, she says, “That’s O.K. We don’t breathe the same air as Cheney or Rove. We cancel social engagements if we look at the list and see that they’re on it.” Lilibet tells Bruck that Hagel came back from his recent trip to Afghanistan and Iraq with Barack Obama and Jack Reed “in a better mood than he did from most other CODELs [congressional delegation trips]. It was so great for him to be with two guys who appreciate him, listen to him.”

Posted by Administrators on October 26, 2008 at 12:31 PM in Article Spotlight | Permalink | Comments (0) | TrackBack

Saturday, October 25, 2008

What's so bad about 3-L legal-writing instructors?

Over at MoneyLaw, Jason Solomon writes that the fact the first-year legal-writing program at Penn (as at Yale) is taught by 3-L's "prevents Penn from having an 'outstanding' JD program".  Why should this be true?  He elaborates:

So Penn, it's time to spend some money on real legal writing professors. The people who head Penn and Yale's progams may be terrific, but there's only so much one person can do. The law student instructors may be doing a good job given what they know, but... they're law students.

I don't have a strong view about the "best" way to structure a legal-writing program (well, maybe it's my strong view that there is no "best" way).  And, to be clear, nothing in this post should be taken to indicate any lack of commitment on my part to the idea that it is very, very important for law schools to teach good legal-writing, and to do it well.  That said, I'm not sure -- not yet, anyway -- about Jason's "but . . . they're law students" argument.  He's clearly thought more about this than I have, but . . . Are we sure that Penn's best third-year students -- despite being just students -- aren't able to teach good legal writing well, even as well as the "real legal writing professors" Jason thinks Penn should and could hire?  How do we know this?  Isn't the "smart third-years v. real legal writing professors" question one whose answer will vary depending on, e.g., who the non-student director is, and also on the school's ranking, location, and tenure-and-voting-rights policies (because such policies, it seems to me, will affect the ability of a law school to attract and retain "real" legal writing professors)?

I can understand (easily) the argument that the Yale-Penn model is not as good as some others.  I'm a bit uneasy, though, with the suggestion that an otherwise "outstanding" law program should be downgraded -- should confront what Jason calls a "ceiling" -- entirely because it has opted for the Penn model.  Thoughts?  (I should disclose / confess, I guess, that I was taught legal writing by two very able, supervised third-year students and -- as a third-year -- taught legal writing to first-year students.)

Posted by Rick Garnett on October 25, 2008 at 05:47 PM in Life of Law Schools | Permalink | Comments (27) | TrackBack

Paranoia among the Theory Class?

Back in early September, I confess that I let my greed triumph over my humanity. I took advantage of my New York academic friends’ paranoia by making numerous $100 bets that Obama would not merely beat McCain but would also win in Michigan, the state of my former domicile. My academic friends took the bait even though it seemed obvious to me that no Republican could possibly retain the White House saddled with a two-term unpopular Republican incumbent, an unpopular war, an uncertain economy, a depleted campaign war chest, and a shortage of volunteers (compared to Obama’s overflowing coffers and army of eager foot soldiers).

Why were my academic friends so quick to bet against the normal algorithm of American politics (i.e., bad economy + unpopular war + unpopular incumbent = defeat for incumbent’s party)? My diagnosis: Academic fear of their fellow Americans’ alleged racism. My victims displayed a bizarrely confident belief that Obama’s poll numbers exaggerated his actual support, citing the alleged “Bradley effect” (i.e., the tendency of white voters to misrepresent their willingness to vote for Black candidates to pollsters). Apparently, these academics believed that polls taken more than a quarter-century ago were a good mirror of contemporary racial attitudes.

As a result, I anticipate enjoying a four-figure economic windfall on November 5th simply by observing the following reliable adage (adapted from H.L. Mencken): “No one ever went broke under-estimating academics’ fear of the American public.”

Posted by Rick Hills on October 25, 2008 at 05:11 PM in Current Affairs | Permalink | Comments (2) | TrackBack

Friday, October 24, 2008

The Judicial Process - Last Call (for now)

I've been gratified by the responses I've received from folks expressing interest in the judicial process movement.  (Prior posts here and here.  I promise I'll post about something else next.)  I'm not entirely sure what all will come of this, but at a minimum there is now a very strong core group of people who have identified themselves as having a common scholarly interest in matters judicial. Very likely my first step will be to attempt to organize some sort of works-in-progress conference.  If you've been lurking out there, not quite sure whether you're ready to be signing up for any "movements," but find the idea of such a conference at least potentially appealing, there's still lots of room for you on the bandwagon.  (And, I feel compelled to note [for the benefit of the old-school REM fans among you] that you won't hurt the horse.  We treat him well, we feed him well ...)  Just shoot me an e-mail.

Posted by Chad Oldfather on October 24, 2008 at 03:57 PM | Permalink | Comments (1) | TrackBack

The joy (and agony) of moving (offices)

We are building, at Notre Dame, a really nice new law-school building.  The building has occupied, for the 9 years I've been here, an almost religious place in the life and conversations of the faculty ("Someday, my child, there will be a new building, and then the lion will lie down with the lamb," etc.).  It was sometimes hard to resist -- as it must have been for those religious enthusiasts who spent the night out in the cold, expecting the Second Coming -- losing the faith.  Anyway, it's really happening, and we are moving in over the Christmas break. 

Our new offices will be smaller.  And, our stuff is being moved by a moving company.  So . . . we are being encouraged to be ruthless in recycling / throwing stuff out.  It's fun, but hard.  How many Criminal Law casebooks do I need?  What about the 20 or so linear feet of friends' reprints?  My bar-review notes?  Ten years of The Green Bag?  Research files on writing projects that -- let's be honest -- I abandoned 8 years ago?  It's really tempting just to dump it all, and start over.  ("I don't need any of this . . . except this ashtray, this paddle game . . .  that's all I need.)

Posted by Rick Garnett on October 24, 2008 at 11:47 AM in Life of Law Schools | Permalink | Comments (2) | TrackBack

Religious Pluralism and "The Office"

From last night's episode, via Dwight: "She introduced me to so many things -- pasteurized milk, sheets, monotheism...."

Incidentally, is it at all disturbing that I identify most with Dwight?

Posted by Paul Horwitz on October 24, 2008 at 11:38 AM in Paul Horwitz | Permalink | Comments (0) | TrackBack

Culture and Inscrutable Science: An Analytical Method for Preliminary Injunctions in Extreme Cases

Columbia_foam_strike Columbia re-entry Is it plausible that scientists and engineers could overlook fatal flaws in a multi-billion-dollar project? Top: Foam from the external tank strikes the leading edge of Columbia's left wing. Bottom: The now iconic image of Columbia breaking up over Texas.

It’s one of the most interesting and daunting judicial controversies to come around in a long time: A few very worried individuals claim that a brand new, largest-of-its-kind particle accelerator under Switzerland and France, CERN’s Large Hadron Collider, could create a black hole that is capable of reducing the Earth and everything on it to an infinitesimal lightless speck.

So here’s the question of the moment: Is it plausible that a group of extremely smart, highly trained, non-sociopathic scientists and engineers could overlook fatal flaws in a multi-billion-dollar project and thus cause a catastrophe?

Part 3 of
Black Holes
& the Law

It is plausible. In fact, it has happened multiple times. A recent example is the space shuttle Columbia disaster.

Previously I blogged about the analytical problems of considering a preliminary injunction against CERN. In this post, I’m going to attempt to provide an analytical solution. Here’s a recap of the dilemma: The science involved in this case is so complex, it would take years of physics training for a judge to make an independent evaluation of the arguments on either side. The old fallback, expert testimony, is problematic here, since all the experts are interested parties, and since our legal tool for sifting out unreliable expert opinion, the Daubert framework, collapses into analytical nonsense when faced with extreme facts such as these.

If the judiciary surrenders to these difficulties and refuses to involve itself in the dispute, the judiciary is then rendering consensus judgments within scientific communities effectively injudicable – even where those judgments are disputed, and even where the alleged harm is destruction of the Earth. That seems unacceptable. Yet if the judiciary plows ahead and issues an injunction in such cases – despite not having a principled way of evaluating the merits of the plaintiffs’ arguments – the courts are then transformed into a marionette – manipulable by frivolous objectors into halting any scientific undertaking that is sufficiently complicated so as to be opaque to the layperson. That seems unacceptable as well. Either way, we lose the benefits of fair judicial review.

Is there any way out?

I believe there is. And the Columbia accident points the way. The Columbia Accident Investigation Board concluded that several aspects of the culture of NASA’s human spaceflight program led to the disaster, including, among other things, political considerations and “stifled professional differences of opinion.”

While courts are not well equipped to evaluate theoretical science, they certainly are adequate to the task to investigating social dynamics, psychological factors, political influences, and organizational cultures. In evaluating a preliminary injunction request regarding the Large Hadron Collider, a court should scrutinize the culture of CERN and the particle-physics community, as well the political, social, and psychological context in which their decisions are made. Having done so, the court should then determine, with reference to those gathered facts, whether “serious questions” exist, and, thus, whether the case for a preliminary injunction has been made.

An honest appraisal of the situation reveals that there are many apparently plausible reasons why the culture at CERN and within the particle-physics community could lead to flawed risk analysis. I will list several:

To begin with, it seems highly plausible that particle physicists might fear serious reprisals and negative repercussions for their careers if they were to speak out about perceived dangers of the LHC. Denial of tenure, unaccepted manuscripts, and ostracism by peers are among the penalties an academic in such a situation might plausibly face. Such an apprehension would appear to be all the more acute because the LHC is the crown jewel of particle-physics experimentation. It dwarfs all predecessors in size and power, and represents a leap forward that could radically advance fundamental theory, possibly answering some of the most basic questions about our universe. To say that the LHC is important to the particle-physics community seems to be an understatement.

Further, in mulling over whether to speak out, particle physicists with private doubts might well resign themselves to a fatalistic assessment. They might plausibly figure that they, as individuals, are powerless to overcome the momentum of a multinational multi-billion-dollar project. If that is their appraisal, then such individuals have nothing to gain, but much to lose, by making a public objection. Consider the possible outcomes: If a scientist speaks out and nothing bad happens, the scientist is a laughingstock. If a scientist speaks out and disaster does come to pass, professional vindication will be fleeting and bittersweet. If a scientist keeps mum or even extols the safety of the project, in a disaster scenario, embarrassment will be short-lived.

But let's suppose particle physicists with private doubts reach the opposite conclusion about the likely impact of their public dissent. Suppose a private doubter predicts that his or her voice could be the tipping point that leads to widespread public concern and a permanent shutdown of the LHC. In such a case, whether the objecting scientist is right or wrong, he or she can anticipate being blamed for ruining the most exciting opportunity for advancing scientific understanding in this generation. And there’s no hope of vindication in such an event – naysayers cannot be proved right if the experiments are never run.

The math-oriented are often fond of using matrices to elucidate decision-making. A physicist creating such a matrix, using the logic detailed above, would be faced with a series of boxes in which all outcomes are quite bad, except one: to be a supporter of the LHC in the event that it turns out to be a benign scientific triumph.

Additional pressure on scientists not to question the LHC may also come from the fact that the LHC appears increasingly to be the only game in town for particle physicists wanting to work at the leading edge of discovery. In fact, the world’s largest particle collider currently in operation, Fermilab’s Tevatron outside of Chicago, Illinois, is slated for shutdown in 2010, apparently in large part because the LHC will render it obsolete. Other particle accelerators planned for the future have had their funding suspended or cutoff.1

A psychological or sociological explanation for how particle physicists could reach a consensus on safety, despite the existence of real danger, is the phenomenon William H. Whyte, Jr. called “groupthink.” This process allows individuals to maintain a worry-free outlook that is not justified by the facts. In such a dynamic, the existence of group consensus causes individuals to forego or dismiss their own independent thinking. A circularity develops: Group consensus justifies individual confidence, and individual confidence justifies group consensus. The result is flawed decision-making. Groupthink has been offered as an explanation for both the Challenger and Columbia space-shuttle disasters.

Another set of concerns arises from the question of how political realities might have affected the decision-making environment at CERN. As a consortium run by 20 member states, it is plausible that politics plays a significant role in the CERN milieu.

Still another point of worry is the independence, or lack thereof, of the safety reviews that have been advanced as evidence that the LHC is safe. While an independent report was completed in 2003, more current documents said to confirm the safety of the LHC, which were issued in response to recent criticism, are the product of CERN itself, and are not independent.

Other factors are worthy of investigation as well. It may be, for instance, that the timeline of infrastructure construction and critical theorizing is such that LHC interests were thoroughly vested by the time potentially convincing theoretical work on safety concerns surfaced. That is, the late hour at which objections were made could well have prevented their open-minded consideration, regardless of merit. Some elements of the broad timeline of the LHC endeavor suggests this: The LHC was approved in 1994, and construction began in 1998. Construction was nearing completion in September 2007 when Otto Rössler released a paper explaining his new mathematical work, which, according to Rössler, demonstrates the LHC’s grave danger. Rainer Plaga’s article making a negative assessment of the risk at the LHC was published in August 2008, a month before operational testing began. At the point these papers were advanced, it is plausible that the LHC project had already reached the point where halting it was politically unthinkable.

Supporters of the LHC have argued that Dr. Plaga and Dr. Rossler are not career-dedicated particle physicists, and, therefore, their theoretical work should not be taken seriously. As discussed above, it seems plausible that the cultural environment in which particle physicists operate is such that public objection to the LHC is discouraged and stifled to the point where it is non-existent. Given such a state, we would expect public objection to come from outside the particle-physics community. Thus, rather than being a reason for discounting such theoretical work, the outsider nature of such work might be a reason to embrace it.

Even putting aside the social and cultural pressure on particle physicists to conform, it is a well-talked about phenomenon, famously advanced by Thomas S. Kuhn, that paradigm-shifting revolutions in scientific thought often come from individuals who are new to a field of study, and thus not entrenched in its conventional modes of thinking. (Jim Chen wrote about the virtues of juniority in the legal academy on MoneyLaw.) Thus we might expect that career particle physicists would be slow to accept paradigm-shifting theoretical work that undermines confidence in the safety of the LHC. As a corollary, the lack of particle-physics bona fides among LHC critics, especially ones who are serious and respected scientists, should not be relied upon as a way to dismiss their concerns.

There may be several other sociological, psychological, political, and cultural factors, in addition to those I’ve listed above, that would be relevant. The matter requires some deeper thought. Nonetheless, I believe this list of considerations shows that questions about the reliability of LHC safety assessments are not specious.

Let me be clear: I am not accusing CERN or the particle-physics community of incompetence or malfeasance. The above points are not set forth as factual contentions demonstrating the case for a preliminary injunction. Rather, I posit them as realistic possibilities that raise non-trivial questions, the answers to which could seriously undermine the consensus view that the LHC is safe.

I should also emphasize that I am not arguing in favor of a preliminary injunction against the LHC. Whether one should be granted is, to me, an open question. What I am arguing is that there is an analytical way for a court to reach a well-reasoned decision in cases such as this, even where the merits of the scientific controversy itself are opaque to judges lacking specialized scientific training, and where expert testimony is of dubious use in adjudicating the matter. In considering a preliminary injunction, the court should investigate the cultural, organizational, political, psychological, and sociological context in which safety determinations were made, and then ask whether the results of that inquiry raise serious questions on the merits. If serious questions are raised, and if the balance of hardships tips strongly in the plaintiffs’ favor (as it clearly does with a black hole destroying the Earth), then an injunction should issue.


1Mark Alpert, Future of Top U.S. Particle Physics Lab in Jeopardy
Congress's budget cut decelerates U.S. high-energy physics research
, Scientific American, January 22, 2008.

Posted by Eric E. Johnson on October 24, 2008 at 07:30 AM in Judicial Process | Permalink | Comments (6) | TrackBack

Thursday, October 23, 2008

Sponsored Announcement: UPenn Law Invites Applications for Sharswood Fellowships

To encourage scholars who plan to enter legal academia, the Editorial Board of Volume 155 of the University of Pennsylvania Law Review established the first Sharswood Fellowship in 2007. Penn Law has since expanded the program so that now each year the School awards two fellowships that each fund two years of research, writing, and teaching. One of the Fellowships continues to be generously funded by the Law Review.

Sharswood Fellows enjoy faculty access to Penn Law services and events, holding academic standing comparable to that of visiting assistant professors. Click here for a list of our fellows and visitors.

More details about the application for the fellowship below.

Fellowship Requirements

Writing and research

The Sharswood Fellow will be expected to produce at least one legal academic work of publishable quality during each year of funding. The work is expected to be of a length akin to a standard law review article.

Teaching: Academic Year 1

Spring - Fellows teach a seminar based on the subject of their research.

Teaching: Academic Year 2

Fall - Fellows teach the same seminar that they taught the previous spring.
Spring - Fellows teach a course to be determined in consultation with the dean.

Application Materials and Deadline

By Monday January 26, 2009, applicants must submit the following materials:

  1. Detailed research proposal
  2. Teaching statement (course abstract and plan for class or seminar)
  3. Writing sample(s)
  4. Curriculum vitae
  5. Law school and/or graduate school transcript(s)
  6. Three references, minimum (at least one must be an academic reference)

Electronic applications are preferred, and applicants are encouraged to submit the above materials in electronic form to [email protected]. Alternatively, applicants may submit a paper copy of their application to:

Margaret Ulrich
Sharswood Fellowship Program
University of Pennsylvania Law School
3400 Chestnut Street
Philadelphia, PA 19104-6204

Questions about this program should be sent to [email protected]law.upenn.edu


Sharswood Fellow applicants must have earned a law degree or PhD or equivalent in a related field and should not yet have held a full-time tenure track legal academic appointment. The Sharswood Fellows Program provides excellent opportunities for predoctoral research for candidates who have completed a JD or for postdoctoral research.

One of the Fellowships every two years is designated for Penn Law graduates.

About George Sharswood

George Sharswood was born in Philadelphia on July 7, 1810 and died on May 28, 1883. He graduated with honors from the University of Pennsylvania in 1828. On September 5, 1831 he was admitted to the bar of the Commonwealth of Pennsylvania. He was later nominated to a position on the Supreme Court of Pennsylvania, where he served from 1868 until his retirement in 1882. He served as chief justice on that court, beginning on January 6, 1879.

Sharswood was appointed professor of law at the University of Pennsylvania in 1850 and served for eighteen years. He reorganized the law school at Penn, and served as dean beginning in 1852—the year of the establishment of the American Law Register, predecessor publication to the University of Pennsylvania Law Review.

Posted by Administrators on October 23, 2008 at 05:31 PM in Getting a Job on the Law Teaching Market | Permalink | TrackBack

Reflections on Doing an LRW Fellowship

This blog has many readers who are on the meat market.  One path to law teaching careers is through an LRW teaching fellowship—Stanford’s program, the Climenko, the Bigelow, etc.  This is the path I took, and if you are on the cusp of a law teaching career, but not quite ready, you might consider it.

It has been done before, but I thought I would offer some pros and cons of such programs.


•    It can be very difficult to produce scholarship while teaching lrw.  It is likely your first time teaching, and teaching LRW in particular is time-intensive as it requires you to constantly read your students’ work and give meaningful oral and written feedback;
•    Depending on the school, LRW instructors may not get much love from the doctrinal faculty, and your status may be low;
•    You may not have the opportunity to develop mentorship relationships with the faculty at the school;
•    Students may resent you for the amount of work you give them and any negative feedback that you might have to give them;
•    The pay isn’t great;
•    Teaching LRW is probably not what you really want to do.


•    If you work really hard, you may well be able to produce scholarship (I and all of my colleagues in Stanford’s program were able to do so);
•    Attending faculty workshops, symposia, and job talks will help you understand what makes for a good job talk;
•    You learn a lot about teaching;
•   If you are persistent and your timing is good, you may find some generous faculty members who will advise you, discuss your scholarship, and mentor you (as I did);
•    If you are lucky (as I was), you will have amazing and generous colleagues;
•   Teaching LRW can be incredibly rewarding, as it allows you to forge relationships with students, help them, and learn from them;
•    It can plug you into the law teaching network in a variety of ways (conferences, symposia, old-fashioned networking, etc);
•   It helps you on the tenure-track market because it demonstrates your seriousness about your aspirations, allows you to talk seriously about teaching, gives you time to find your voice and agenda as a scholar, and helps you adopt the persona of a law professor.

For me, despite the occasional complaining, the fellowship at Stanford was more than worth it.  On a purely functional account, it set me up very well for the teaching market.  On every metric, I did far better my second time on the market than I did the first (before the fellowship). 

Wholly apart from that, though, it was just a wonderful experience. I learned a lot about myself, mostly enjoyed the work, enjoyed working with students, and had great colleagues.  Not bad, as far as jobs go.

As I have indicated, I’m not convinced that the fellowship model is the best for LRW teaching, but that’s got very little to do with whether applying for such a position is the best idea for you.

Posted by Hillel Levin on October 23, 2008 at 04:39 PM in Getting a Job on the Law Teaching Market, Hillel Levin, Life of Law Schools, Teaching Law | Permalink | Comments (4) | TrackBack

Bringing LRW into the Doctrinal Classroom and Some Final Thoughts

This is the last post in my series on LRW.  In it, I will share some of my own plans to bring LRW into the doctrinal classroom and offer some final thoughts for doctrinal faculty to keep in mind about LRW.

First, some cautions against bringing practical lawyering into the doctrinal classroom:

  • Doing so is difficult because it may require more time and effort giving feedback to students.  (I believe that more feedback is a good thing, but descriptively, it is difficult and time-consuming.)
  • Doing so is difficult because most standard law school teaching materials (casebooks and teaching manuals) don't obviously lend themselves to it.
  • Doing so may be difficult, particularly for junior faculty, if the law school is traditionalist.
  • Doing so may require professors to be highly selective in the materials and issues they can cover.
  • Doing so may be difficult if the professor doesn't have experience with practical lawyering skills.

All of that said, I have decided to give it a try.

This semester, a primary goal of my Legislation course is to prepare students to craft briefs and memos interpreting statutes.  To be sure, this is probably an implicit goal of any class that focuses on statutory interpretation.  But I am making it explicit, and the final weeks of the course will be devoted to constructing legal briefs or memos addressing difficult questions of statutory interpretation.  We will deal with several different cases and issues, working as a class, in small groups, and individually.  I will also give out real briefs and have students deconstruct them.

The students seem very eager to get to this part of the class, as am I; and I think the practical payoff will make the extra work worthwhile. 

The real cost is that I can only cover a fraction of the casebook (Eskridge/Frickey/Garrett).  We began the course with an introductory section, then moved to the theories of statutory interpretation, and then to the nuts-and-bolts doctrines of interpretation.  In order to make room for the practical skills section at the end, I have had to skip everything else in the casebook (which is a lot).  In this case, the tradeoff is worth it, because I'm fine with the class being about Statutory Interpretation alone, rather than a broader Legislation class.

However, when I teach my other (much bigger, enrollment-wise) courses--Civ Pro II (the Rules of Civil Procedure) and Con Law II (basically the Bill of Rights, minus a lot of stuff that gets covered elsewhere)--it will be more difficult to integrate practical lawyering skills.  I plan to use attorneys' briefs and pleadings in Civ Pro, and will likely require students to draft a complaint, answer, discovery requests, and so forth.  But I can't see how to do much more than that without skimping on breadth of coverage.  And beyond deconstructing briefs, I'm not really sure how to integrate LRW into Con Law. 

I am eager to hear what others have been successful (or unsuccessful) with.

Finally, for those who are uninterested in integrating practical lawyering skills and who don't spend much time thinking about LRW, please just keep the following in mind:

  • Doctrinal courses and LRW are closely related and mutually reinforce one another;
  • Doctrinal professors should reinforce the importance of LRW and other practical lawyering classes when possible;
  • The LRW course teaches students crucial practical skills that are central to legal education--it is not a throw-away course;
  • Teaching LRW is difficult and extremely time-consuming;
  • Students spend a lot of time on LRW (and should);
  • In many cases, first-year students only get serious feedback from LRW instructors;
  • LRW instructors often get to know students better than doctrinal faculty do, and may know if students are having personal or academic difficulties before any other member of the faculty or administration;
  • Students who do well in LRW are often (but not always) the same students who do well in doctrinal classes.

Thanks to everyone who has read all of these posts (hi mom!) and for the provocative comments along the way.  Go hug an LRW instructor.

Posted by Hillel Levin on October 23, 2008 at 04:33 PM in Hillel Levin, Life of Law Schools, Teaching Law | Permalink | Comments (4) | TrackBack

Ritualistic Lawyering

Jeff Lipshaw has a great post on the value of lawyers in business deals.  He posits (in part) that lawyers are not making the pie bigger in many cases, and that if lawyers always made the pie bigger then we would see them used more often on smaller deals.  He sees a different and interesting reason for lawyers:

My equally non-testable theory is that lawyers sometimes add value to deals, sometimes subtract value, and appear most of the time during the deal for the same reason neckties do:  it's part of the ritual.  There is no intrinsic reason they have to be there.  Lawyers, like neckties, have value, not because they necessarily make the pie bigger, any more than neckties make the pies bigger, but because somebody values the lawyer enough to pay more for her to be there than it cost for her to get there (marginally speaking, of course).

I think his theory has legs, perhaps in big business deals where he has experience.  For example, he notes that representations and warranties often expire at closing, significantly limiting their value in comparison with the lawyering cost of negotiating those clauses. 

That said, I think the cockfighting necktie theory goes a bit far - lawyers can add real value in ways I discuss after the jump.   

I'll admit that I have very little experience on large public company deals, though I have worked on a few.  Most of my experience comes from working on smaller deals (big company down to individual) and also litigating such deals when they go bad.  And that, I think, is where lawyers can add the most value - foreseeing how deals might sour.

Two specific points:

First, good lawyers have a wealth of experience on a variety of transactions.  They know contract language that worked and didn't work, they know business terms that worked and didn't work, they know representations and warranties that are likely to give problems, they can recognize assets that need examination (for example, in intellectual property).   Even the most experience business person likely works on a fraction of the number of transactions that a lawyer will work on, and certainly not with the same variety of transactions, parties, and industries.  When good lawyers quibble over seemingly small terms, it is because they have seen the small terms turn into large future costs.

This leads to second, just because small deals didn't involve lawyers doesn't mean that a lawyer wouldn't have added value.  Having worked in litigation and transactions, I can say with a certainty that a large percentage of business disputes I saw in litigation could have been avoided if a good lawyer had been involved in the transaction.   It is true that most deals don't sour, but enough do that I wouldn't write off the importance of a quick contract review to minimize risk if things go bad.  I think that lawyers are often not used not because they don't bring value, but because a) potential clients don't know they won't bring value, b) potential clients have not had good lawyers in the past, or c) attorney access is limited due to cash, status, retainer, etc. 

Note that I use the proviso "good lawyers."  There are plenty of bad lawyers, who negotiate just for the sake of minor victories, who use cookie cutter forms without modification rather than understanding why provisions are needed, and who don't recognize when the cost of the negotiation is exceeding the value of the requested change.   I would definitely agree that these lawyers are not making the pie bigger or decreasing transactions costs.  Perhaps there are more bad lawyers than good, and maybe that's the difference between fact and theory.

Posted by Michael Risch on October 23, 2008 at 11:41 AM in Corporate | Permalink | Comments (0) | TrackBack

350 Million Dr. Peppers Comin' At Ya

I would be excited enough at the news -- could it finally be true? -- that Chinese Democracy, by "Guns 'n' Roses," is finally going to be released in a few weeks.  Appetite for Destruction is a classic.  I also remember listening fervently to every song on Use Your Illusion -- for the few weeks until Nevermind and Ten came along and rewrote the map of rock music in the early 90s, putting Use Your Illusion in something of the position of the world's best horseshoe being released shortly before the first factory rollout of the Model T.  Notwithstanding its almost instant obsolescence, Use Your Illusion is a great, sprawling, incoherent, overdone, overspent, but completely enjoyable product: a truly American piece of music, in other words.  I still enjoy it.  Although the current "band" lacks many of the best aspects of the true band -- not least Duff McKagan -- I'm still looking forward to the new album.

How much sweeter it is, then -- literally -- to find that Dr. Pepper, which had promised to give a free soda to everyone in America if Chinese Democracy actually, improbably, came out in this calendar year, is ready to deliver on its promise.  They aren't making it especially easy -- you have to register your personal information online and sign up to receive a coupon -- but kudos to them for following up on their somewhat opportunistic alliance with the Axl of Evil. 

I'll leave it to others -- Nate Oman? -- to discuss whether the promise was ever binding in the first place.  For myself, I'll marvel at how far the good Doctor's musical stylings have changed from this.   

Posted by Paul Horwitz on October 23, 2008 at 11:22 AM in Paul Horwitz | Permalink | Comments (2) | TrackBack

Hiring thread update

Update: the comments to the hiring thread are now working. Because of a change in Typepad's software, we can't display more than 50 comments on a particular page, so you need to scroll down to the bottom of the comments and then click on "Next" a few times to get to the recent comments. But they are all there. Typepad explained the switch: "Comments Pagination was introduced to speed up the loading of blogs for our users, and to be less of a drain on resources for blogs with a high number of posts and comments."

There seems to be a minor glitch with the comments to the hiring thread. The comments for the last month are currently not showing up, but rest assured they are showing up somewhere in the typepad software, so they  have not been lost permanently. I will find out from Typepad how to restore them. In the meantime, feel free to use this post as a place to put comments relevant to that thread. Thanks for your patience.

Posted by Administrators on October 23, 2008 at 10:39 AM in Blogging | Permalink | Comments (0) | TrackBack

Wednesday, October 22, 2008

Writing Direction and Organizing Research

Last week at the Conglomorate, Gordon Smith asked how people keep track of their research.  He then discussed how he “writes backward” and thus doesn’t really use any tools to keep track of the research.  It’s not clear to me why that should be the case – even if you use research to footnote, justify, and modify a paper after you have written it, you still need to keep track of the research.

For what it’s worth, I guess I am a front to back to front writer.  I read enough of the key cases, seminal articles, and articles on point to decide that I am not going to be preempted and to raise enough questions that I think need answering.  While I may have a general topic of interest, I have never (not yet, anyway) come up with a thesis before I have done some background reading.  I guess I’ve tried to pick difficult questions and I don’t want to commit to an answer until I see what others have tried to do to solve the problem.  Almost invariably my thesis has become different than I thought it was going to be, but still different enough from others to be original.  After I’ve written a substantial amount of an article, I then sift through anything and everything that might be relevant, filling in blanks, finding holes in my own argument that need filling, and finding support for what I’ve already argued (law review editors are invariably going to ask for it). 

Thus, even for backward writers, I think the organization tool question is an important one. A colleague in his first year of teaching recently asked me what tool(s), if any, I use to keep track of my research and that of my research assistants.  I suspect he did so even though I haven’t been in academia much longer than he has because (a) I seem to be the most tech savvy person on the faculty, and (b) I don’t have piles of printouts in my office.

I answer his question (and Gordon's) below the fold.

I’ve used three methods to keep track of research, depending on the project. Note that I am not much of a note-taker – I don’t have a pad of paper with notes, nor do I write in the margins.  Maybe this affects how I work – I like to read articles once for background, and then again more closely for citation possibilities.  Somewhere in the middle I write “notes” in complete thoughts that can be converted directly into sentence form.

Method 1: Email all files to myself from Lexis or Westlaw.  I then put them in a folder based on the project I am working on.  I have access to them everywhere, and I can categorize them as read, etc. once I am done with them so I don’t duplicate efforts.  The downside of this method is that new projects may make use of the same articles and over time I forget what I have accumulated.   Another downside is that the method doesn’t work to well with books.

Method 2: Create a spreadsheet with all the cases, cites, and key information that I want.  I am using this for a current project where I want to catalog every case on a certain topic – the spreadsheet gives a nice overview – almost like an empirical dataset of case law.  The downside is that the spreadsheet isn’t really tied to the source document, and I have to go look the case up each time I want to reference it.  It also doesn’t translate well to other projects where the case may be relevant on another point.

Method 3: I’ve created a password only tracker in at my website.  This is possible because I have my own server contract and upload my preferred software, an open source wiki/blog/everything called TikiWiki.  It doesn’t hurt that I contribute to the software, so I can fix my own bugs and (if I had more programming skill) add my own features.  The tracker is a database where I get to select the fields – name, cite, summary, authority type (book, case, article, website, whatever).  I have a second, linked database that consists of quotes, notes, summaries, paraphrases, etc. from the source, with page cites. You don't have to have your own website - M$ Access could be used to make a similar database and entry form.

Either my research assistants or I can add to the database, depending on the project.  I can also upload a copy of the document (still not great for books) for easy reference – no more re-downloading [insert your key case here] for the fiftieth time.

While I have yet to use the same sources on multiple projects since I created the database, I think the advantages are beginning to show.  I can easily filter by subject matter or project name.  Thus, when I do start a related project, all of the prior sources will be available for review without further searching.  Further, key quotes (and page numbers) are captured for posterity, eliminating the need to re-read [insert key law review article here] to get the exact language of the quote that I know inside and out.  The summaries allow for easy sorting by relevance for further review as well. 

There are a couple of scale benefits.  One actual benefit is that I am able to publish entries from my research database for the world to see and theoretically add to in my Cases of Interest  wiki.  An example is here.  I have noticed an increase in hits since I have been able to easily publish case information – the more cases, the more hits.  A theoretical benefit is that I could allow colleagues to access – and add to – the database.  We would all get the benefits of the others’ research and analysis.  There are limits, of course; if the database is too large it becomes a (poor) substitute for commercial research services. 

I tend to think that any of the above are better than the stacks and stacks of printouts that some of my colleagues have in their offices. For one thing, it’s messy -- not that I am a neat freak, but I have plenty of other materials, such as books and teaching materials, to make my office a mess.  Second, it’s pretty depressing to look at a stack of articles and know that it will take forever to get to the bottom.  Which leads to third, how do you find any particular article in the stack without creating an avalanche?  Fourth, I like having access at home, where I work at least a day a week, and according to my wife, at night and on weekends, holidays, vacations, etc.  Finally, I try to kill as few trees as possible.

So, there you have it – research management ideas from my not so vast experience in academia.  However, I haven’t been doing this that long and I wonder whether there is a better way and whether my working methods are unrealistic for the long run.  Given the dearth of comments at The Conglomerate, I'm not optimistic.

Posted by Michael Risch on October 22, 2008 at 07:54 AM in Life of Law Schools | Permalink | Comments (2) | TrackBack

FIU College of Law in the Roger Williams Survey

FIU College of Law (which opened in Fall 2002) is not yet a member of the AALS, which meant we were not included in the Roger Williams survey of faculty productivity at non-Top-50 law schools. So, as St. Thomas (MN) did last month, we ran our numbers. The result: a 4.590 faculty score, placing us around # 30, just behind Indiana-Indianapolis and just ahead of St. John's, Tennessee, and Loyola-Chicago.

Not bad, especially since I had thought before we ran the numbers that our faculty might have a couple of built-in disadvantages, given the study's methodology. First, we have a very bottom-heavy faculty--10 of our 22 tenure/tenure-track faculty are pre-tenure and five of those are in their second year teaching, and three of our senior faculty are newly tenured. Second, we have a lot of specialists doing legal history (including non-U.S./non-English legal history) and niche international work, stuff that tends to place in specialty journals and that also tends to be shorter. Third, several of our top senior people have focused almost exclusively on writing books (scholarly and casebooks) rather than law review articles over the past 3-4 years (although I wonder if the trend in the academy towards book projects makes this an issue across the board).

Anyway, I was happy to see us come out that well in a preliminary study. It gives us something to build on with a new dean (we are beginning a dean search as I write this) and in the never-ending search for new faculty.

Posted by Howard Wasserman on October 22, 2008 at 07:21 AM in Life of Law Schools, Teaching Law | Permalink | Comments (3) | TrackBack

Globalization and Global Governance

In response to my post from earlier, Rob Howse referred me to his review article -- The End of the Globalization Debate: A Review Essay -- published earlier this year in the Harvard Law Review.  It's nicely written, insightful,  and well-worth the read.

In the article, Rob describes how both the traditional political right and left have come to embrace globalization -- neither side argues any longer that the territorial nation-state should remain the "locus of control over economic activity" or "should retain a monopoly on legitimate governance."  Rob explains how the once antiglobalization movement, which saw globalization (and the pro-free market forces with which it was identified) as undermining progressive values, itself began to embrace global law and policymaking as a way to advance those same progressive causes.  In Rob's words, everything has gone global.

As a descriptive matter, Rob seems correct that the globalization debate is largely over.  The concept of the nation-state as the sole operator and source of authority in the international sphere has long been inaccurate (if it ever was).  The state, as Rob notes, has been reshaped, remade and reordered as a result of the worldwide expansion of commerce, communications, crime, and human rights, among other things.   If the point is that globalization is here to stay with us, it seems correct.  The question is: what next? This, as Rob highlights at the very end of his review, is the issue of global governance and global justice. It is where much of the cutting-edge legal scholarship in this area is being written.  No longer is the debate over the benefits of globalization itself.

My concern is the path that the global governance debate is taking in the face of, and in response to, a globalized world.  Because economic and social globalization has outpaced political globalization, international actors are feverishly trying to figure out how to address global problems using traditional forms, and not so traditional forms, of governance.  The political left in the United States, disappointed with the speed with which international treaties and institutions have developed, increasingly turn to U.S. domestic laws as a way to promote its American version of environmental and human rights, and otherwise advance its progressive causes.  The political right has the same preoccupation with U.S. domestic laws as a method for promoting economic liberalization.  At the same time, the political right is nervous of non-economic international law, because that law was often developed by liberal elites as part of the international human rights and environmental rights movement.  The right, while largely supportive of economic globalization, is increasingly vocal in its condemnation of international law (a good example, is the spirited debate -- now a few years old -- over the use of international and foreign law in U.S. constitutional decisions).  Academics have supported these domestic law approaches, believing that if state boundaries are no longer as important as a descriptive matter, then domestic law can fill the gaps.  Unilateral actions become necessary, the argument goes, to solve pressing global problems.  Rob's comment to my post yesterday appears sympathetic to this approach, as he asks what's so absurd about U.S. domestic laws regulating the conduct of foreigners abroad?

Yet the global governance debate seems undermined by myopia -- with activists and academics alike focusing on the short-term, and ignoring the long-term.  Over time, the American political left, which promotes a particular brand of human and environmental rights (a kind I happen to like), is ill-served by unilateral domestic actions.  Global governance based on unilateral action by individual groups or states is apt to be fragile and unlikely to lead to a realization and sustaining of those global values which the left values most (Nico Krisch has done some interesting work in this area in connection with theories of hegemonic decline).  The same problem exists for the right.  All too concerned that non-economic international law serves the goals of the left, political conservatives have turned away from a meaningful discussion of creating robust global institutions, and have sought to all too often rely on domestic laws to solve global challenges.

To my mind, neither group ultimately is served by global justice that translates as an anarchic free-for-all of domestic regulation -- be it economic laws or non-economic laws (e.g., ATS claims). Nevertheless, this approach seems often encouraged inadvertently by modern international legal scholars, many who embrace transnational networks, dialogue, and legal process, when they move beyond the descriptive (what's happening with globalization) to the normative (how should global governance be structured).  It's also often evident in scholarship promoting alien tort statute claims, as well as academics who argue for vigorous extraterritorial enforcement of economic laws.

My belief -- albeit admittedly currently unfashionable and seen, by some, as quaint -- is that both groups are better served if traditional international law, based in large part on concepts of territorial sovereignty, remains the preferred method of developing global governance.  That is not to ignore globalization.  It is to say that in a globalized world, the territorial nation-state remains important not as a way to stop globalization, but as a way to govern it in a productive way.  From a American-perspective, international law continues to allow the United States to promote and project its particular brand of human rights, as well as its embrace of free-markets and trade.  I suspect that those who try to regulate global politics through "exhilirat[ing] new possibilit[ies] of connectedness and human flourishing" will ultimately be disappointed.

In short, to the extent valuing traditional forms of international law (treaties) as a way to constrain state excesses and promote American style values means "marching in favor of states" -- I'm happy to march.


Posted by Austen Parrish on October 22, 2008 at 01:45 AM in Article Spotlight | Permalink | Comments (5) | TrackBack

Tuesday, October 21, 2008

Planet-Eating Black Hole vs. Maverick Scientists: The Ultimate Preliminary-Injunction Case

CERN LHC raceway Cern scientist wears hard hatPhotos from CERN. Top: A section of the 27-km particle raceway critics say could spawn a black hole. Bottom: A safety-conscious CERN visitor wears a hard hat.

I’ve noted that I am fascinated by a case that is pitting a group of worried individuals against the multinational CERN consortium, which, last month, completed work on the Large Hadron Collider – the most powerful subatomic particle smasher ever built. It was constructed with the hope of resolving fundamental questions about the universe. Among other things, scientists hope to create particles that have not existed since the Big Bang.

Part 2 of
Black Holes
& the Law
Not everyone is excited. Some people believe the $5-billion-plus LHC machine, which inhabits a circular tunnel under the French and Swiss countryside outside of Geneva, could create exceedingly tiny black holes. In time, critics worry, these little black holes could grow in size to eventually devour the Earth. A malfunction causing mechanical damage and a helium-coolant leak has delayed the critical LHC experiments until early spring 2009. In the meantime, we have yet to see how a court would handle, on the merits, the perplexing judicial conundrum posed by this granddaddy of all preliminary-injunction requests.

Jurisdictionally, there might be no way to apply American preliminary-injunction law in litigation against CERN. But how American law would handle such a request is, I think, an interesting question, and one that is worth exploring.

Like mathematical equations that seem to break down under the weight of very large or infinite variables, our rubric for preliminary-injunction analysis begins to unravel when faced with alleged facts such as these. Let’s step into the mire.

Under American law, preliminary-injunction requests often involve an attempt by the plaintiffs to make a showing of probable success on the merits. For many reasons, that would be difficult to do in a case against CERN. Better for plaintiffs in this case is doctrine allowing a court to grant a preliminary injunction if “serious questions are raised” and the “balance of hardships tips sharply” in favor of the plaintiffs.1

So let’s balance the hardships.

Granting the requested relief would shut down, for years, one of the most expensive, complex, and ambitious scientific undertakings in human history. That’s a lot of hardship. Further, the discoveries the LHC could enable, which might alter and greatly expand our understanding of the universe, would be removed years into the future. Certainly that is not insignificant. Moreover, as a practical matter, a judge would likely be compelled, even at the preliminary-injunction stage, to consider the effects of a permanent decommissioning of the LHC. Why? A court-issued preliminary injunction would undeniably give LHC critics an imprimatur of credibility. That, in turn, could cause a tipping point in public sentiment that would make an LHC restart politically impracticable. In such a situation, even if safety concerns were finally proven unfounded, the political will to go through with the experiments might be irreparably lost. The harm flowing from a permanent halt to the LHC program would certainly include colossal economic loss – the LHC has already been built, and it represents billions in unrecoverable costs. More philosophically troubling, a permanent stoppage would largely end humanity’s quest to understand the fundamental nature of the universe – or at least it would until we could build a similar particle collider on a heavenly body we cared less about. (Pluto comes to mind.) Add it all up, and that’s a lot of hardship to balance.

Now, on the other end of the scales is the Earth and everyone on it being devoured by a black hole.

Result? Black hole wins. You can’t get more hardship than that.2

So the plaintiffs clearly prevail under the first prong. Now we just need to consider whether “serious” questions are raised. This is where it gets complicated.

Here’s a quick summary of the scientific dispute:3 Detractors say that colliding particles at the incredible velocities achievable by the LHC will collapse matter so compactly, a tiny black hole will be formed. LHC-supporters actually admit this is a possibility. But they say this is not a cause for worry, because if microscopic black holes are produced, they will evaporate immediately through a process called “Hawking radiation.” Critics respond that Hawking radiation is merely an unproved theory; it’s never been observed. Besides, they argue, their own calculations show that black holes could be stable. LHC-supporters retort that if stable black holes can be produced at the LHC, then they would be naturally occurring on Earth, since cosmic rays bombarding our planet commonly collide with Earth-bound particles at the same energy levels as those produced at the LHC. Therefore, LHC-supporters reason, the fact that the Earth is still here proves that the LHC poses no threat. Detractors point out that cosmic rays bombarding Earth do so at a very high velocity relative to that of the Earth. Thus, they reason, any black hole created through this natural process gets ejected out into space as quickly as it is formed. Contrast that situation with the LHC, say the critics, which shoots two beams of particles from opposite directions so that they collide with one another head on. The head-on collision will cancel out the momentum, and any black hole that is created will be trapped by the Earth’s gravity, they argue. From there, the argument goes, it would be pulled down through the laboratory floor and fall toward the planet’s core.

Who is right? Who is wrong? Let’s put ourselves in the position of judge. What is our independent evaluation of the matter? What result do we get when we check the calculations for ourselves?

Of course, that’s precisely the problem. We can do no such thing. The subject is utterly recondite. The few people on Earth who are capable of understanding the subject matter form a very exclusive club, and judges and lawyers are not members. Physicists themselves are a rare enough breed, but only a relative handful of them understand the applicable subfield of theory and calculations that is relevant to rendering a meaningful opinion on the matter.

Thus, we lawyers are sent looking for our old fallback in such a situation: expert testimony.

Here’s a rundown of the experts. The international physics community says that the LHC is safe. CERN commissioned a safety review, which gave the facility a clear bill of health, and there is, so far as I can tell, no one within the particle physics community who disputes it.

The only opposition, at least among credentialed academic scientists, appears to come from two German scientists.

Dr. Otto Rössler of the University of Tübingen in Germany is one. He is no lightweight. Dr. Rössler, originally trained as an immunologist, is an acknowledged pioneer in chaos theory. He’s held professorial appointments in mathematics, chemistry, theoretical biochemistry, nonlinear studies, chemical engineering, and theoretical physics. Dr. Rössler is clearly very smart and something of a maverick. Reading about him, you quickly begin to wonder if he wasn’t the inspiration for Jeff Goldblum’s character, Dr. Ian Malcolm, in Jurassic Park.

The other critic is astrophysicist Rainer Plaga of Germany, also an apparently respected academic, if less colorful than Dr. Rössler.

While Dr. Plaga and Dr. Rössler may be respected scientists, neither is a “particle physicist” per se.

So far as I can tell, there is not a single particle physicist anywhere who has expressed doubts about the safety of the LHC.

So now that we have the experts in front of us, what are we to do with their testimony? Let’s do the legal analysis.

Just as the overall preliminary-injunction analysis seemed to break down under the weight of the variables imposed by this problem, the expert-witness qualification analysis from the U.S. Supreme Court’s teachings in Daubert v. Merrell Dow Pharmaceuticals seems to break down as well. Daubert provides that, in making a threshold determination of scientific validity, we must look to whether the expert’s asserted theories are testable, falsifiable, and refutable. Here we reach a logical absurdity, for it is the testing itself that hangs in the balance of the injunction determination. The theories of Rössler and Plaga can only be confirmed through the obliteration of the court, the parties, and the planet. Daubert does not seem well-suited for the challenge on this score.

Daubert also asks us to look at whether the proffered theories are generally accepted among scientists. Here, we have a definitive answer. Dr. Rössler’s and Dr. Plaga’s theories are not; CERN’s are. But can that be the end of the inquiry? In some situations, looking at the general acceptance of scientific theory is sensible, such as inquiring into causation issues with cancer clusters. But in the realm of black-hole litigation, we encounter circularity. If the Rössler/Plaga theories were generally accepted, and CERN’s were not, there would be no controversy before the courts. LHC construction would have been halted long ago. It is the very fact that the theories are not generally accepted that gives rise to the litigation.

Moreover, since it is the conduct of the scientists themselves that is in issue, requiring scientific-expert opinion in this matter to be “generally accepted” would be tantamount to making consensus decisions of the scientific community on laboratory safety issues unsusceptible to judicial review. Can that be right?

The logical vortex grows.

What’s a judge to do? In a follow-up post, I’ll describe what I see as a possible analytical way out of this conundrum.


1See Natural Resources Defense Council, Inc. v. Winter, 518 F.3d 658, 677 (9th Cir. 2008).

2You might argue that destroying the entire Earth, while bad, is not the worst that could happen. The absolute worst thing, you might say, would be destruction of the entire universe. Strangely enough, destruction of the entire universe, though something called a “vacuum bubble,” is actually another theoretical disaster scenario placed on the table by LHC critics. The vacuum-bubble scenario, however, seems to be less of a concern for critics than the black-hole scenario.

3UC Irvine’s Jonathan L. Feng runs down the don’t-worry arguments here, and panic-now arguments are here. More complete, but less accessible documentation of the dispute is found here: Abraham-Solution to Schwarzschild Metric Implies That CERN Miniblack Holes Pose a
Planetary Risk
; Otto E. Rossler, “A Rational and Moral and Spiritual Dilemma”; Comments from Prof. Dr. Hermann Nicolai, Director, Max Planck-Institut fur Gravitationsphysik (Albert-Einstein-Institut) Potsdam, Germany on speculations raised by Professor Otto Roessler about the production of black holes at the LHC;
Rainer Plaga, “On the potential catastrophic risk from metastable quantum-black holes produced at particle colliders,” arXiv:0808.1415; Steven B. Giddings and Michelangelo L. Mangano, “Comments on claimed risk from metastable black holes,” arXiv:0808.4087.

[Note: This post was revised on 6/29/10 to change one word in the picture caption. The word "scientist" has been replaced with "visitor". The record of the photo is here.]

Posted by Eric E. Johnson on October 21, 2008 at 04:15 PM in Judicial Process | Permalink | Comments (5) | TrackBack

Remember the CEO President?

The Bush-Clinton divide could be seen as, among many other things, a difference between business people and lawyers. The MBA versus the JD. The comparison caught a difference in attitudes about procedure and decisionmaking. If we wanted to frame the current contrast, Obama seems to be in the JD camp. Maybe we could think about it as JD versus military? JD versus CAPT?

Posted by Verity Winship on October 21, 2008 at 04:11 PM in Current Affairs | Permalink | Comments (0) | TrackBack

Signing out

I'd planned to keep posting, but I'm feeling pretty blogged out these days. Combined with lots of other stuff I owe co-authors, colleagues, my wife and dog, that means that I need to bid PB goodbye for this turn.

As time permits and topics arise, I'll still do a bit of econ-blogging over at Economists for Obama, so you can find me there if you like.

I'd like to thank the good folks here at PB, especially Dan Markel, who asked me on, for their indulgence over the last few weeks.

Thanks also to the commenters who weighed in, whether pro or con, on my September posts. It's been fun!

Posted by Jonah Gelbach on October 21, 2008 at 01:18 PM | Permalink | Comments (0) | TrackBack

The Effects Test and Transnational Litigation

Eric's post on the litigation from the Large Hadron Collider ("Could bad judging cause the earth to be sucked into a black hole? Maybe"), spurred this post on a slightly different issue.

The Hawaiin case that Eric mentions -- although dismissed on jurisdictional grounds -- is part of a larger trend. In recent years, litigants have increasingly sought to use domestic laws to regulate the activities of foreigners outside U.S. borders. In the United States, domestic laws have long regulated extraterritorial conduct in the commercial context (think antitrust and securities laws as classic examples), but over the last decade courts have appeared to be more willing to apply all sorts of public and private laws to activity occurring abroad, so long as the foreign conduct has some effect within the United States. Other countries have now also followed suit, applying their own laws extraterritorially (a famous example being the Yahoo! case, where a civil lawsuit was brought in France after Yahoo! auctioned Nazi memorabilia in the U.S.). In fact, American businesses are concerned over EU's growing intrusion into U.S. mergers and acquisitions (think of the Honeywell and Microsoft cases)

The growth in transnational litigation (and extraterritorial cases) may be an inevitable result of globalization and the spread of American style litigation. I tend to believe though that the trend of using domestic laws to regulate global activities is problematic and a threat to long-term American interests. The problems created by extraterritorial laws also seem to have been overly downplayed by legal academics. I have written two recent articles on the topic. The first will soon appear in the Vanderbilt Law Review -- The Effects Test: Extraterritoriality's Fifth Business. The second will appear early next year in the Minnesota Law Review -- Reclaiming International Law from Extraterritoriality. Both articles - although coming at the issue from different angles -- criticize the use of domestic laws to regulate foreign conduct.

What may be absurd then in cases like the Hawaiin particle collider case is not the merits of the claim (as Eric points out courts often confront significant environmental and scientific issues). Rather, what seems absurd is that a United States court could apply U.S. domestic law to regulate activities in Switzerland of non-U.S. citizens.

Posted by Austen Parrish on October 21, 2008 at 12:35 PM | Permalink | Comments (2) | TrackBack

The Lowest Top-20 Schools on Student Satisfaction

Over at TaxProf Blog this week, Paul Caron is doing a great series of posts unpacking the data from the new The Princeton Review's Best 174 Law Schools. Today's post is on the "academic experience" rating, which Princeton Review describes this way:

Academic Experience Rating: The quality of the learning environment, on a scale of 60 to 99. The rating incorporates the Admissions Selectivity Rating and the average responses of law students at the school to several questions on our law student survey. In addition to the Admissions Selectivity Rating, factors considered include how students rate the quality of teaching and the accessibility of their professors, the school's research resources, the range of available courses, the balance of legal theory and practical lawyering skills stressed in the curriculum, the tolerance for diverse opinions in the classroom, and how intellectually challenging the course work is.

Because it incorporates admissions selectivity, the elite schools should all do quite well here, and indeed 17 out of 20 score above 90. The three that fell below 90: Southern Cal (88); Yale (87); Cornell (63). Judging from the narrative sections in the book, USC's relatively low score (95 for UCLA) may be due in part to too much theory/not enough practical from some professors. Yale: indifference to teaching among some faculty seems to be the culprit. Yikes on Cornell. Sure, discount it a bit for weather/location and not being first-choice school of many, but still, that's awfully low. Students seem to complain about range of courses offered, small size of faculty. May also be they're working harder (5.5 hrs a day outside class) than peers at other places.

I've said before why I think these Princeton Review ratings ought to be a factor for U.S. News voters -- student satisfaction is a very good indicator, compared to available alternatives, in assessing the academic quality of J.D. programs, and commonly used in other rankings schemes like Business Week's for business schools, for example. And we look to consumer satisfaction as a proxy for quality with all kinds of services -- not clear why legal education is so different.

If we only knew the response rates (or at least a minimum for each school), I'd say U.S. News voters ought to use these as the major factor, and all prospective students ought to go out, buy the book, and use it instead of U.S. News in deciding among JD programs. But Princeton Review doesn't release that information. So I'd use it as a "bump up" if unusually high, "bump down" if unusually low.

Posted by Jason Solomon on October 21, 2008 at 12:07 PM in Life of Law Schools | Permalink | Comments (5) | TrackBack

Could Bad Judging Cause the Earth to Be Sucked Into a Black Hole? Maybe.

Black holeHew Dalrymple, Lord Drummore Top: A black hole. Bottom: A judge.
Last month, courts on two continents were asked to grant injunctions to stop the Earth from being sucked into a black hole. Really.

Complainants claimed that the just-completed Large Hadron Collider, a ground-breaking particle smasher built beneath the border of Switzerland and France, could create microscopic black holes that would eventually grow in size to swallow the Earth. Plaintiffs sued to stop the European Center for Nuclear Research (“CERN”) from turning on the multi-billion-dollar machine.

Part 1 of
Black Holes
& the Law
The case is absolutely fascinating on a number of levels. In fact, it has all the makings of a law-school classic. At this point, however, we lack a thorough written judicial opinion on the merits to inspect. One lawsuit, filed pro se in federal court in Hawaii, was dismissed, as you might expect, on jurisdictional grounds. The other lawsuit, filed in the European Court of Human Rights, has not produced any written opinion that I can find. News reports indicate the ECHR rejected a request for interim measures, indicating that the case may take years to reach the most interesting questions. So far as I can tell, there is no legal action being pursued in the Swiss or French courts. It may be that the case has simply not been teed up such that we will be able to see a judicial review on the merits. If so, that would be a shame.

But even without that, I find the controversy to be, from a legal academic perspective, highly intriguing.

To begin with, it is a case that highlights the trust modern civil society has vested in the institution of the law and courts. A court of law, unarmed and employing only a tiny staff, wields enormous power. That power includes, ostensibly, the authority to shut down what is perhaps the most expensive scientific endeavor in history.

At the same time, if we take the case seriously at first face, as I think fairness requires, then literally the fate of the entire world rests, potentially, upon the decision of a judge.

That is food for thought.

The lawsuits have been ridiculed by CERN supporters as absurd. I understand why they would take that stance. But it would be a shame for judges and academics to shrug off these claims as silly before looking at the merits. Lawyers and judges have always been arbiters of life and liberty. And that heady responsibility only increases as humanity’s destructive capacity mounts. If this case does not put a judge in the position of saving the world, another soon might. In a technological age of human-induced climate change, genetic engineering, and nuclear chain-reactions, the prospect of the courts confronting a real doomsday scenario is decidedly non-trivial.

If and when the titans of science and industry find themselves at odds with bystanders about what constitutes acceptable risk to the environment and the human species, lawyers and judges are the citizens’ bulwark. That’s a sobering responsibility – one that might rightfully lead to some deep reflection about the education of lawyers and the nature of the legal profession.

There’s a lot to unpack here. I’ll follow up soon with a post discussing the hypothetical preliminary-injunction issues.

Posted by Eric E. Johnson on October 21, 2008 at 11:24 AM in International Law, Judicial Process | Permalink | Comments (7) | TrackBack

Monday, October 20, 2008

The Judicial Process, Defined

Last week I bemoaned the fact that those of us who do work in the judicial process area have no organizational home of our own.  My aim in this post is to talk a little bit more about what I've got in mind when I talk about the judicial process as a field of learning.  Probably the best way to do so is to describe the seminar I'm teaching this semester - "Judging and the Judicial Process" - which provides a pretty good first cut.

Our focus, as I put it in the course description, is "on courts as institutions and on judges as the primary actors within those institutions."  We started with what one might call the "standard" model of judging, which calls for judge-umpires to apply determinate law via formalist analysis.  Then we pretty much blew it up, considering the work of the legal realists, public law theorists, political scientists, cognitive scientists, and so on.  Having blown it up, we tried to put it back together.  Is there still a case to be made for formalism?  Is pragmatism the way to go?  (Judge Posner appears on the syllabus often enough that he ought to get credit for co-teaching the class.)  Are we left to rely on the good faith of judges and Karl Llewellyn's "major steadying factors?"  Now we're on to some more discrete topics: are judicial activism and judicial independence meaningful concepts?  What purposes do judicial opinions serve?  What's the proper role of precedent?  What are the relative merits of specialized versus generalist judges?  Although I had initially thought we'd start with judicial selection, it turns out that we'll end there (on the theory that only after we've been thinking about the descriptive and normative aspects of judging for a while can we really address the question of how judges ought to be selected).

The seminar has been a blast.  The students are engaged, the discussion is lively, and the comments are thoughtful (and I've gained a lot from the exercise of putting it all together).  So it's somewhat puzzling to me that this isn't standard fare in U.S. law schools.  No doubt some of it gets covered here and there in the curriculum.  But as far as I can tell that coverage is typically piecemeal.  Sometime over the medium term I'd like to turn these seminar materials into a casebook.  As I suggested last week, it's apparent to me that there are enough people out there writing on judicial process topics that some of you might be persuaded to teach a class on the subject.  Either way, there's still plenty of time to join the movement.

Posted by Chad Oldfather on October 20, 2008 at 11:50 PM in Judicial Process | Permalink | Comments (3) | TrackBack

$ 150 million worth of speech

The Obama Campaign announced Sunday that it raised $ 150 million in September, an obscene, record-breaking figure that more than doubles the previous record (which was Obama's haul in August). This certainly justifies Obama's decision to opt-out of public financing. What is especially interesting to me is that 3.1 million people have contributed to his campaign, including more than 630,000 new contributors in September. And the average donation was around $ 86. Of course, by definition "average" means there were donations of more than that, including several large fund-raising events, including one hosted by Barbra Streisand that netted $ 11 million.

But I would like to hear how these numbers--donors, new donors, average donation amount--compare with past primary and general elections. And what do these numbers tell us about the debate over campaign-finance rules and public funding? The theory of Buckley v. Valeo (which never has been entirely repudiated) is that making campaign contributions is a First-Amendment protected way of expressing support for a candidate, albeit a right subject to fairly close regulation and limitations in amount (a principle with which I generally agree). The theory of campaign-finance regulation has been that politicians will simply cozy-up to a small number of big-money donors who use large contributions to gain access and influence, resulting in various forms of corruption (indeed, that was the warning from the McCain Campaign in response to the Obama announcement).

But if a campaign can fund itself, at least in part, on smaller contributions from a substantial number of voters looking to do their part and have their say, do we come close (or at least closer) to a First-Amendment regime of "The People" speaking through their pocketbooks to support a candidate, without the same risk of corruption or influence-peddling? I think McCain's criticism misses the mark because the corruption rationale works when a campaign receives $ 2 million from one contributor; it looks very different, and has a different effect, when the campaign receives $ 2 million from 20,000 contributors. The corruption criticism looks out of place when it becomes not a problem with the amounts of money people are able to contribute (which remain restricted), but of the number of people who are able to contribute, particularly in small amounts.

Can what Obama has achieved tell us anything about how candidate fundraising can work, especially with the power of the internet? Is Obama a unique candidate and no (or few) other candidate can generate this kind of excitement and support?

Updated: Tuesday morning

Publius at Obsidian Wings links Obama's expansive fundraising to Madison's theory of republicanism. Recall that Madison argued that the way to limit the power of factions in a republic is to increase the size of the republic and thus the number of factions, preventing any one from seizing control. Similarly, dramatically expanding the size of the donor base, the Obama model (and Publius recognizes, as does one of our commenters, that Howard Dean started us down this road in 2004) prevents any one donor from gaining influence.

Posted by Howard Wasserman on October 20, 2008 at 09:35 AM in Current Affairs, First Amendment | Permalink | Comments (5) | TrackBack

The Supreme Court and Software Patents

This is a continuation of my series on patentable subject matter.  The first post introduced my argument that judicial limits on patentable subject matter should be abandoned in favor of adherence to the statutory categories: processes, machines, manufactures, and compositions of matter.  My second post discussed how Supreme Court precedent in the area is based on repeated dicta with little analysis.  This post extends that discussion in a particular area – computer software.  Analysis of these cases reveals just how difficult it is for courts to apply judicially developed limitations on patentable subject matter.

The Supreme Court has addressed software patents directly on three occasions.  I address each in turn.

Gottschalk v. Benson, 409 U.S. 63, 67 (1972).  In Gottschalk, the Supreme Court considered a patent relating to the mathematical conversion of “binary coded decimals” into binary pure binary format, a conversion that was known and could be done by pencil and paper.  The opinion’s text implies that the Court was more concerned with the inventor’s failure to describe the process in such a way that made clear that the applicant actually invented the claimed invention.  The real concern appeared to be that the claim fell short of the specification and novelty requirements.  Furthermore, a pure algorithm with no practical purpose was not “useful” as required by 35 U.S.C. §101.

Parker v. Flook, 437 U.S. 584 (1978).  In Flook, the Supreme Court considered a claim related to automobile catalytic converters.  The claimed method was for determining the level of temperature, pressure, or flow rate necessary to trigger an alarm; it included a mathematical algorithm to determine the proper “alarm limit.”   The Court ruled that the only allegedly “new” part of the three step method was the mathematical algorithm.   The Court then held that discovery of a mathematical algorithm cannot be novel even if the algorithm was previously unknown: “Whether the algorithm was in fact known or unknown at the time of the claimed invention, as one of the ‘basic tools of scientific and technological work’ . . . it is treated as though it were a familiar part of the prior art.”    In other words, the Court ruled that a scientific principle cannot be novel, because it must have existed in nature.  The Flook Court admits that its rules will bring no clarity: “The line between a patentable 'process' and an unpatentable 'principle' is not always clear.”

Flook cites Gottschalk v. Benson for the notion that “pure mathematical algorithms” are unpatentable subject matter.  While Gottschalk does say this, it was in dicta that Gottschalk by its own terms called a nutshell of the actual holding, which is that one may not patent a non-useful algorithm where the particular method for carrying out the process is neither described nor novel.  This is an example of unchallenged dicta later parroted as a bright-line rule.

Diamond v. Diehr, 450 U.S. 175 (1981).  Only three years later, in Diamond v. Diehr, the Court again considered whether a patent should issue where a claim used a mathematical algorithm, this time as part of a process for processing and curing rubber.  The process included a well known algorithm relating to the time required to cure rubber.  The patent applicant argued, and the Court agreed, that the process could be novel and useful because the claimed invention described a process for accurately measuring the temperature that was later used in the mathematical algorithm.   Thus, the Court ruled that the patent could not be rejected on subject matter grounds.  The decision did not turn on the mathematical nature of one of the steps; indeed, the process could have contained a non-mathematical step that was well known.   What was important was that such a known step, when combined with the other elements of the claim, became novel and non-obvious.

The Federal Circuit, which hears all patent appeals, currently applies the Diamond v. Diehr standard while simultaneously giving lip service to the notion that mathematical algorithms are not patentable.

These three cases show the difficulty (even folly) of trying to apply judicially created restrictions to computer software.  Sure, it’s easy to say that a mathematical algorithm is unpatentable, but every software program boils down to an algorithm of one type or other.  How do we know whether the algorithm is part of a Diehr process or whether it is a Flook principle of nature?  Do we follow Flook’s point of novelty analysis (which has been rejected elsewhere) to isolate the algorithm, or do we follow Diehr’s holistic analysis to see how the algorithm fits in to a more complex process?

The directly contradictory outcomes of Flook and Diehr show that courts have great difficulty applying the standard.  Many would say that Flook is simply wrongly decided, but it has never been overruled and is still cited today in favor of barring certain patents. 

Rules about “natural phenomena” and “natural products” fare little better.  After all, virtually every invention is based upon or extends some form of natural phenomenon.  Determining when something ceases to be natural can be very difficult, as the recent Metabolite v. Lab Corp. case shows.

There is, however, a better way.  My next post will discuss a way that courts can systematically apply the rules while also not allowing the patenting of algorithms that are too abstract.

Posted by Michael Risch on October 20, 2008 at 07:21 AM in Intellectual Property | Permalink | Comments (2) | TrackBack

Sunday, October 19, 2008

Teaching Research: Next in an Ongoing Series on LRW

Some readers have asked me to address teaching the research aspect of LRW head-on.

Of all of the components of an LRW program, I found teaching research to be the most difficult.  We had help from two resources on this score--librarians and Lexis/Westlaw reps.  The Lexis/Westlaw reps bring a tremendous amount of knowledge about their products to the table.  My sense is that the trouble is that they are trying to sell these products to students.  They aren't trying to teach the most efficient and effective ways to resolve questions.  Thus, they don't introduce all available tools, including actual books (particularly good as secondary sources to get you started on a project) as well as other online resources like government websites that carry many primary sources.

Law librarians are a different story altogether.  They bring a huge amount of knowledge and information to the table, and they can introduce students to a whole range of resources.

None of this has anything to do with how to teach legal research, though.  And like I said, I found it very difficult to teach in an effective way.  I invite readers to drop comments.

Posted by Hillel Levin on October 19, 2008 at 07:20 AM in Hillel Levin, Life of Law Schools, Teaching Law | Permalink | Comments (7) | TrackBack