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.
Yesterday’s New York Times had an article discussing the phenomenon of “Elderspeak,” defined as the belittling, condescending, and falsely nice and cheerful way many people talk when they are addressing older adults. The pattern is easily recognizable to anyone who has every accompanied a gray-haired relative on any errand or to an appointment: quick use of the elderly person’s first name, unnaturally loud voice, talking slowly, or unwanted endearments like “dearie,” “gramps,” or “good girl.” According to researchers quoted in the article, these methods of address are not only resented by the elderly people who are faced with them, but elderspeak may actually produce more negative images of aging. “And those who have more negative images of aging have worse functional health over time, including lower rates of survival” (Dr. Becca Levy, quoted in the article).
While the article is particularly critical of health care professionals for falling into the elderspeak trap, it also cites examples from other settings, including stores and restaurants. Lawyers are not singled out, but there are lessons for us here as well. Continue reading ““Elderspeak”: Guarding Against Condescension Towards Our Clients”
Earlier this week, I attended the Third Annual BNA/ABA Patent Litigation Conference (as a result of a wonderful invitation by Barry Grossman of Foley and Lardner–thanks Barry!), where the considerable controversies associated with current patent law were explored in great detail. In particular, I listened with great interest to a speech by the Honorable Paul Michel, who is currently serving as the Chief Judge of the Court of Appeals for the Federal Circuit. He highlighted ongoing unease with:
* the congressional efforts to reform patent law, which have taken over three years and not been conducted in a transparent manner that reassures the interested constituencies that patent reform will ultimately address ongoing controversies in a sufficiently even-handed manner;
* the increased activism of the Supreme Court in the area of patent law (a trend which I view with less skepticism than Chief Judge Michel);
* the ongoing ferment over the U.S. Patent and Trademark Office–over both its policy-making role and the under-staffing that will continue to impact its crucially important examination role; and
* the coming crisis in staffing at the Federal Circuit, which may experience at least eight retirements in the next four to eight years.
Chief Judge Michel’s remarks summarize some of the problems roiling the patent community at present, but a whole host of additional problems are also asserting themselves. Continue reading “Priorities for the Next President: An Urgent, Measured Innovation Policy (Part I)”
One thing that most fascinated me about Dan Kahan’s findings (as reported in his Boden Lecture here on Monday) was the lack of people appearing in the quadrant (on his “group-grid” framework) that would be characterized as hierarchical and communitarian (the flip of that, also apparently lacking, would be individualistic egalitarians–more on that later). The gap is striking since hierarchical communitarians are heavily represented in history among philosophers and theologians. Plato and Aristotle would both be hierarchical communitarians, as would Aquinas (pictured above) and other of the Church fathers. Further afield, in China we’d find Confucius and his dialectics and in India, Manu and the dharma shastra.
In many ways, hierarchical communitarianism would appear to be the most realistic of the four possible configurations of beliefs. On the one hand, it recognizes that natural talents are unevenly distributed. Some people are more creative than others, some more intelligent, some have higher emotional quotients and a greater capacity to work with others, etc. Some among us need more guidance from outside, some are wiser. It also, again more realistically, recognizes our interdependence. On the normative side, hierarchical communitarians would celebrate that diversity and appreciate how it contributes to a rich, well-functioning and interesting community and would therefore encourage an awareness among others of the virtues of community and diversity. Continue reading “The Hierarchical-Communitarian Worldview”
This student activism makes me smile. The Milwaukee Journal Sentinel has an article which illustrates that college students in Wisconsin are still concerned about the plight of low-income workers. Erica Perez writes today:
Two student groups at University of Wisconsin-Milwaukee plan to demonstrate tomorrow morning in the Student Union to push the school to endorse a program designed to protect the rights of the workers who sew university logo apparel. The Milwaukee Students for a Democratic Society and the Milwaukee Graduate Assistant Association plan to protest at 10 a.m. Wednesday in the student union, according to a statement issued today.
The Designated Suppliers Program requires university licensees to verify they source their apparel from factories that pay a living wage and allow workers to unionize, among other requirements. Some 44 colleges and universities across the country have penned policy statements in support of the program, including UW-Madison and Marquette University. UWM released a statement Aug. 25 saying it supports the principles of the Designated Supplier Program but “feels the program may pose legal, logistical, and economic issues as it is currently structured, concerns shared by other institutions and organizations.” The statement stops short of endorsing the program.
I write as briefly as possible about health care plans from the presidential candidates. I would not imagine telling you what to think about this, but I hope to present the differences in the proposals, both philosophically and practically. We are so busy reading our financial records with alarm! Please, add health care issues to your voting decision.
Note: The one-hour Turner Hall 4th St Forum on health care, taped last Thursday, is available as a podcast. The panel included Bill Jenkins, who has extensive experience as a leader with Aurora; George Lightbourn, public policy wonk and former Secretary of the Wisconsin Department of Administration; and David Newby, President of the Wisconsin AFL-CIO. And me, of course.
The differences between the McCain and Obama proposals are far greater than any past candidates. Obama presents a development or variation on the Clinton/Gore/Massachusetts plans that seek to spread risk and coverage. McCain takes health care coverage in a completely different direction. Below, I line up the elements, including major changes, sources and extent of coverage, cost containment, and extension of coverage to the uninsured. Continue reading “Priorities for the Next President: Health Care”
Yale Professor Dan Kahan delivered a terrific public lecture here yesterday on his theory of cultural cognition. I am excited to see his program today with Milwaukee County District Attorney John Chisholm, moderated by Mike Gousha. For more than a decade, Kahan has been one of the legal academy’s most original and thought-provoking writers on inner-city law enforcement. It should be very interesting to hear him discuss the particular challenges facing Milwaukee with D.A. Chisholm, who has already initiated several intriguing new programs during his short time in office.
In preparation for the program, I have been reviewing a couple of Kahan’s classic law review articles on inner-city policing. Continue reading “Kahan on Law Enforcement in the Inner-City”
I suspect that will be true if a Republican is elected president. If a Democrat is elected, I also suspect there will be little change in tort law brought about by Congressional action, especially when one considers the financial support the organized plaintiffs’ bar is providing to the dems, particularly to their presidential candidate.
However, if the November election results in the continuation of Democrat control of Congress and puts a Democrat in the White House, there could be a significant impact on insurance law. That impact could well be a switch from state to federal regulation of insurance. Continue reading “Priorities for the Next President: Don’t Change a Thing About Tort and Insurance Law”
Over at his blog, Brazen Maverick, one of our students, Sam Sarver, echoes a conversation that has been happening here about the difficulty of communication across the ideological divide. He was singularly unimpressed with Sarah Palin’s performance in Thursday’s debate but recognizes that others (I would be among them) thought that she did quite well, albeit with neither syntax or word choice calculated to appeal to academic types.
Mr. Sarver wonders whether people holding what seem to be radically differing perceptions of reality can ever talk to one another. I think that they can, but mostly they don’t. Continue reading “Why Can’t We Just Get Along?”
That is the question that lurks behind a fascinating new paper by Dan Kahan, David Hoffman, and Donald Braman. The paper responds to Scott v. Harris, 127 S. Ct. 1769 (2007), in which the Supreme Court held that summary judgment was properly granted to a police officer in a § 1983 lawsuit challenging the officer’s decision to ram his police car into the car of a fleeing motorist. One of the paper’s authors, Dan Kahan (pictured at left), is visiting the Law School today to present the paper at a faculty workshop. (Dan will also be delivering the Boden Lecture here late this afternoon.) The paper begins by taking issue with a particular, case-specific assertion by the majority in Scott, but then opens up some much deeper questions about the roles of judge and jury in a culturally diverse democracy.
The majority in Scott relied on a videotape of the fleeing motorist, which purported to show that he was driving in such a dangerous manner as to justify the use of deadly force to stop him. The majority found the videotape sufficiently compelling that, in its view, no reasonable juror could find in favor of the motorist on his claim that the police officer had acted unreasonably in violation of the Fourth Amendment–thus, warranting a grant of summary judgment. Kahan and his coauthors, however, showed the same videotape to a diverse sample of 1,350 Americans, and found evidence of some disagreement with the majority’s view of the case. Thus, had the case been permitted to go to a jury, there is a statistically sound basis for expecting that one or more of the jurors would have had a considerably less positive view of the officer’s conduct than did the members of the Supreme Court.
Thirty years of law teaching entitles an individual to pause, reflect, and pass along some insights about the craft. Or so it seems to me. Professor Donald Zeigler of New York Law School has availed himself of the opportunity by giving American legal education a slim yet rich volume with the three-word title How I Teach (Tribeca Square Press 2008).
In much smaller print on this paperback’s cover appear the words “Successful techniques for the law school classroom.” These seven additional words, coupled with the big three, pose something of a paradox. Together they can be construed to suggest that all or virtually all of law teaching (or perhaps all or virtually all of what Professor Zeigler considers his law teaching) unfolds within the walls of the law school classroom. In Professor Zeigler’s defense, the seven words do lend themselves to an alternative construction, a construction that conveys the limits and boundaries of his scholarly project. Quite simply, Zeigler is eager to share with professional colleagues lessons that, presumably, have enabled him to develop into an effective classroom instructor and, also presumably, have enabled his students to extract considerable value from his classroom teaching. And share he does. It thus seems fair to cut Zeigler some slack in connection with the ten words he has selected to characterize his project. Enough said about the volume’s cover, title, and subtitle. Continue reading “On Zeigler: How He Teaches”
As a legal writing professor, one part of my job is to help students who didn’t grow up speaking or writing “Standard English” continue adapting their writing to meet the expectations of employers and clients. Of course, to get through college, many students have already made changes in the way they use English. But some students come to law school with additional work to be done. In fact, at least for me, the effort to consciously conform my English speaking and writing patterns to expectations different from those I grew up with never really ends.
So, like the blogger in this post at frogs and ravens (which I reached via feministlawprof), whatever criticisms I might make of Sarah Palin, jabs at her speech patterns rub me the wrong way. As frogs and ravens points out, “How you pronounce a word says nothing about your character, your intelligence, your values, or your education. All it says is whether you are (a) one of the lucky people who grew up speaking ‘the right way’ as your native accent, (b) one of the people who did not, or (c) one of the people who did not and makes a conscious effort to abandon the speech patterns of their childhood to fit in with the expectations of others.” And it seems somewhat ironic, and, well, dumb, that the prejudice against “regional and working-class accents” enables a candidate “to distance herself from her upper-middle-class lifestyle, her position of power, and her lofty ambitions” just by the way she pronounces words.