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

Posted on Categories Intellectual Property LawLeave a comment» on Priorities for the Next President: An Urgent, Measured Innovation Policy (Part I)

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)”

The Hierarchical-Communitarian Worldview

Posted on Categories Speakers at MarquetteLeave a comment» on The Hierarchical-Communitarian Worldview

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”

Wisconsin University Students Fighting for the Rights of Workers

Posted on Categories Labor & Employment Law, MilwaukeeLeave a comment» on Wisconsin University Students Fighting for the Rights of Workers

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.

Continue reading “Wisconsin University Students Fighting for the Rights of Workers”

Priorities for the Next President: Health Care

Posted on Categories Health CareLeave a comment» on Priorities for the Next President: Health Care

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”

Kahan on Law Enforcement in the Inner-City

Posted on Categories Criminal Law & Process, Speakers at MarquetteLeave a comment» on Kahan on Law Enforcement in the Inner-City

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”

Priorities for the Next President: Don’t Change a Thing About Tort and Insurance Law

Posted on Categories Tort Law1 Comment on Priorities for the Next President: Don’t Change a Thing About Tort and Insurance Law

I am very happy with the state of tort and insurance law. Thus, my message to the new president would be: Don’t change a thing.

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”

Why Can’t We Just Get Along?

Posted on Categories Political Processes & Rhetoric4 Comments on Why Can’t We Just Get Along?

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?”

When Police Officers Use Deadly Force, Can Judges Ever Be Trusted to Judge Them?

Posted on Categories Legal Scholarship, Speakers at Marquette, U.S. Supreme CourtLeave a comment» on When Police Officers Use Deadly Force, Can Judges Ever Be Trusted to Judge Them?

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.

Continue reading “When Police Officers Use Deadly Force, Can Judges Ever Be Trusted to Judge Them?”

On Zeigler: How He Teaches

Posted on Categories Legal Education1 Comment on On Zeigler: How He Teaches

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”

“Nucular” and “Nuclear” and So-Called Standard English

Posted on Categories Legal Education, Legal Writing, Political Processes & Rhetoric4 Comments on “Nucular” and “Nuclear” and So-Called Standard English

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.

Priorities for the New President: Health Care

Posted on Categories Health CareLeave a comment» on Priorities for the New President: Health Care

This month, we are inviting contributors to identify what they think should be the highest priorities of the next President in the areas of law they teach.  Coincidentally, my colleague Alison Barnes was part of a 4th Street Forum program just a couple days ago addressing priorities in the field of health care.  A podcast is available here.  Along with Alison, other panelists included David Newby of the state AFL-CIO; Bill Jenkins, former CEO of Milwaukee County Medical Complex; and George Lightbourn of the Wisconsin Policy Research Institute.  The program will also be telecast on Milwaukee Public Television tomorrow at 3:00.

Milwaukee’s Safe Streets Initiative

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An interesting new website describes the activities of Milwaukee’s Safe Streets Initiative, an innovative antiviolence program involving Marquette Law School, local and federal law enforcement authorities, and community organizations and volunteers.  The SSI represents an effort to bring principles of restorative justice to bear in mobilizing high-crime communities against gang- and drug-related violence.  The core of the program seems to be the “call-in,” a session in which community leaders meet with known drug dealers and offer a choice: either stop dealing (in which case mentoring and community support will be made available to help the offender transition to a law-abiding life) or face swift, tough law enforcement action.  (A photograph from the first call-in in 2007 is above.) The SSI also sponsors similar meetings for offenders returning to the community from prison. 

The community involvement piece seems to me an especially welcome development.  As I discuss in a forthcoming article in the Standford Law & Policy Review, when police and prosecutors come down hard on drug offenders in poor, minority neighborhoods, it is important that their actions are seen as having legitimacy in those neighborhoods, rather than being perceived as arbitrary or racially discriminatory.  Opportunities for neighborhood residents to voice their opinions and collaborate with law enforcement in responding to crime can help build the perceived legitimacy that is necessary for long-term gains in crime reduction.