Baseball Metaphors and Judicial Opinions

A long time ago–so long ago, in fact, that the editing process was conducted entirely via Fed Ex and (gasp) telephone* –I published an article on the use of baseball metaphors in judicial opinions. It is one of 19 hits in the Westlaw JLR database for “Kirby Puckett,” one of four for “Kent Hrbek,” and the only law review article ever written that mentions Puckett, Hrbek, and Ron Gant. Though I missed out on all the fun that might have ensued had it been more readily available when Chief Justice Roberts was describing his role in umpireal terms, and even the more recent discussions here, I have just now posted it on SSRN for your procrastinating enjoyment.

* It’s interesting to me that the telephone seems to have disappeared from the editing process. Not once since I started teaching have I spoken to a law review editor other than the one who made the publication offer. Maybe it’s not that surprising, though. I remember some of those conversations from the editor side as being a little intimidating. That might have been partly a product of how my first conversation with an author on the phone unfolded. He (who was kind of big-namish) came across as a little grouchy, and not all that pleased with some of the edits proposed by my predecessor. Somehow or other–I guess I was trying to find a source or something as I fumbled for an explanation of whatever my predecessor had done–I pulled the phone off my desk. From his side perhaps the line just went dead. On my side there was a loud crash and a cascade of papers onto the floor. In retrospect, not that big of a deal. At the time, a little bit mortifying.

Cross posted at PrawfsBlawg.

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Priorities for the Next President: Securities Regulation

The current crisis our nation faces on Wall Street and in the broader economy will be the primary focus of the next President. The crisis is complex, with many facets, and any solution will be equally complex. Issues such as the effectiveness of regulatory oversight versus deregulation, the transparency of specific types of financial transactions and market actors under current law, and the proper accounting rules to ensure an accurate depiction of a banking institution’s financial health will all be part of the debate over how to resolve the present crisis and how to prevent a future recurrence. However, my advice to the next President is that he should not overlook the beneficial role that private civil lawsuits under the securities laws can play in deterring risky market behavior.

Much has been made of the greed and speculative fervor that gripped the investment professionals on Wall Street. Clearly bets were being made with borrowed money that risked the very existence of institutions that are necessary to preserve the liquidity of capital in our markets. Expanding the oversight of the Treasury Department, increasing the transparency of transactions that involve derivatives and hedge funds, and re-examining accounting rules may all be necessary components of a plan to avoid such risk-taking in the future, but they will not be sufficient in and of themselves. From personal experience in the boardroom, I can vouch that nothing deters executive approval of speculative investment strategies as much as the prospect of a potential civil lawsuit if the deal goes sour.

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Priorities for the Next President: An Urgent, Measured Innovation Policy (Part II)

So, to take up the question I asked yesterday, what does “measured urgency” look like?  I would offer a few suggestions.  First, an independent commission needs to undertake legislative revision of the Patent Act.  The Patent Act of 1952 was an incredibly well-written, concise act.  Current legislation has attempted to graft new procedures onto the Patent Act, which would have the consequence of creating a deeply incoherent act.  The new President should appoint a commission of fairly neutral persons to sit down and decide what will become the Patent Act of 2009, an act that will serve as the framework for the next 50 years of patent law.  Such an act should take into account the significant changes that have impacted the patent regime in the 21st century: the increase in agencies regulating the Patent Act, such as the ITC and the FDA; the need to change the role of the USPTO; and the increasing harmonization of patent law in the international environment.  The commission would also increase the legitimacy of the process.  Current patent reform is simply not working.  Previous patent reform has often been seen as another cynical attempt by powerful chairpersons to rewrite patent law on behalf of their most powerful donors.  These deeply cynical efforts have been accompanied by a failure to hold transparent and representative hearings.   A commission would have the benefit of having the ability to channel interest group action in a positive way through open hearings and submitted comments.  Such a commission would also have the ability to stay above what has proven to be a rugby-like scrum on the part of lobbyists to get the narrow best interest for their clients.  I am all for an active and healthy self-interest on the part of the interest groups, but there must be a productive way to channel those interests in a way that serves patent law better.

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