Tuesday, July 22, 2014

California Recounts Are Rare, and Should Be Fair

By Professor Jessica Levinson

This post originally appeared in
The Sacramento Bee.

Until former Assembly Speaker John A. Pérez called it off Friday, we were in the midst of what was likely to become the biggest election recount in California history. If anything good comes of this political tempest, it is to remind us how badly we need to reform our recount laws.

The race to be the next state controller was excruciatingly tight. Fresno Mayor Ashley Swearengin, a Republican, is now set to face off against Board of Equalization member Betty Yee. Four hundred eighty-one votes separated Pérez and Yee, both Democrats. After the recount, which cost approximately $30,000, Perez picked up 10 votes.

For the complete story, click here.

Tuesday, July 15, 2014

Implicit Bias at the Point of Contact: Refereeing and Police Encounters with the Public

By Professor Eric Miller

This post originally appeared on Prawsblawg.

Since the World Cup is over, and the best team won, this is my last post on soccer, refereeing, and policing, I promise.

This is my last post on soccer, refereeing, and policing, I promise. In the dying minutes of the group-stage game between Ivory Coast and Greec, the Greek striker Samaras tangled with an Ivory Coast player, and the referee awarded a penalty. Foul? Flop? The penalty certainly looked really soft. What provoked some ire from my friends on Facebook was, not only the fact that the penalty seemed to be an overreaction, but that it was an overreaction to a foul committed by a black person on a white one. Was bias at play here.

The—by now familiar—answer is: probably. My buddy Song Richardson has written some great articles explaining how implicit bias works. Because officiating requires the referee to make instant fact-based determinations in highly stressful circumstances, these judgements prove susceptible to an unconscious, implicit bias. Implicit biases affect all of us, regardless of our race. But they impact us in strikingly racially differentiated ways.

Richardson is concerned to demonstrate the relevance of recent innovations in cognitive science for the Fourth Amendment in general, and police encounters with racial minorities (primarily African Americans) in particular. Her argument is both simple and powerful: the current Fourth Amendment doctrine on stop-and-frisks promotes a form of policing that is racially biased and practically inefficient. The cause of the inefficiency is unconscious cognitive biases that the officer may not be aware of; the problem is that such biases decrease the efficiency with which an officer is able to separate criminal from non-criminal activity.

Thursday, July 10, 2014

Supreme Court Health Law Update: Abortion, Contraception & Gay 'Conversion Therapy'

By Professor Brietta Clark

This Supreme Court term has been another important one for health care. The Court was presented with several cases that questioned the scope of the government's power to enact laws regulating health care access or quality, when such laws are viewed as burdening religion or speech. The two cases receiving the most attention -- Burwell v. Hobby Lobby and McCullen v. Coakley -- involved challenges to laws protecting women's access to reproductive health care. But there were two other noteworthy cases -- Pickup v. Brown and Welch v. Brown -- which involved challenges to a law that bans a discredited health care practice that is harmful to the mental and physical health of sexual minorities.

Health law scholars and advocates have been watching these cases closely because of the growing number of examples of free speech or religious freedom claims being used to defeat, avoid or invalidate important health protections. For those who envision a robust regulatory role for government in protecting and promoting health -- especially for groups that have historically been the targets of health care discrimination -- this term brought some good news and some bad news.

Monday, July 7, 2014

Is Rote and Mindless Legal Practice Our Standard?

By Professor Eric Miller

This post originally appeared on Prawsblawg.

Last week, I suggested that the legal academy could do with providing a more concentrated study of legal materials to prepare students for practice. I actually think the case could be made stronger: for many, not only is knowledge of the legal materials in a given doctrinal area our core competence: it is the central obligation of the legal academy to provide competence in legal doctrinal knowledge.

I chose criminal law as my central example. But my point was supposed to apply more generally to torts, contracts, family law, and so on across the curriculum. In short, the argument is that concentration in a particular practice area should not simply mean a wider range of courses, it should primarily mean greater interaction with the extant doctrine.

My claim is that the substantive version of "practice ready" does not require the academy to match practice. I think that is especially the case if the bulk of practice involves the equivalent of agency capture, so that the lawyer becomes divorced from the clients, and instead becomes part of a quasi-bureaucracy. That may be a feature of production-line litigation, and the criminal law may be more prone to that style of litigation than other fields (although tort law shares some of these characteristics). But equipping lawyers to recognize complexity and co-option when it occurs should be part of our teaching mission. Where judges and co-counsel fail to see the issues.

Tuesday, June 24, 2014

Muniauction, Limelight and New Standards for Induced Infringement

By Harrison Thorne ‘16

This post originally appeared on Jurist.

It is not always clear exactly when a patent is infringed. People typically think of infringement in a black and white manner as the unauthorized use of another person's invention. However, infringement becomes more complicated for method patents. A method patent—unlike a regular patent—involves several steps a user must perform to achieve a particular result. But what if one user does not perform all of those steps? What if instead one user performs some of the steps, causing another person to perform the other steps? This concept, known as induced infringement, was dealt with by the Supreme Court in Limelight Networks, Inc. v. Akamai Technologies, Inc.

The facts of Limelight are fairly straightforward. Akamai was the exclusive licensee of a complicated, multistep method involving Internet content delivery. The patent claimed a method whereby users would designate components to be stored ("tagged") on servers. Limelight was a competitor that provided a similar service but required its customers to tag their own files. Limelight performed all but one of the steps patented by Akamai. Akamai sued Limelight for patent infringement and received a favorable verdict—including $40 million in damages—in the Federal District Court.

Two years after Akamai's victory, the Federal Circuit decided Muniauction, Inc. v. Thomson Corp. Like in Limelight, the defendant in Muniauction performed all but one of the steps of the plaintiff's method patent and left the remaining step to its customers. Muniauction held that where multiple parties are involved, direct infringement—using a patent without authority—is required before induced infringement can be considered. In such situations, direct infringement requires that one party directly infringed the entire method or exercised control over the entire process. The Federal Circuit consequently held that the defendant was not liable for infringement as it neither performed all the steps of the plaintiff's patent nor exercised control over the process when its customers carried out the remaining steps.

Friday, June 20, 2014

What politicians really think about Citizens United

This op-ed originally appeared in the Los Angeles Daily News.

The U.S. Senate just debated a constitutional amendment to overturn the Supreme Court’s Citizens United decision about money in politics.

That’s remarkable. We have amended the constitution only 27 times in our country’s history. If a substantial portion of Congress thinks that it is time for number 28, a lot of Americans must be pretty upset about something.

But what has them so upset? The day before the Citizens United decision, Bill Gates had the right to spend as much as he wished urging Americans to vote against Senator Windbag. Corporations were barred from delivering the “vote against Windbag” message. But they could spend as much as they wished urging Americans to understand that Windbag hates puppies, God, apple pie and Betty White.

Wednesday, June 18, 2014

The Business Law Big Time

By Professor Elizabeth Pollman

We’re excited to be hosting the National Business Law Scholars Conference here at Loyola this week. This is the first time the conference has been held on the West Coast and we’ve had record submissions. More than 80 business law professors will be coming for two jam-packed days of panels and talks (including by Loyola faculty members Michael Guttentag, Carlos Berdejo, and myself).

Highlights of the program include:

  • A keynote speech by Frank Partnoy, the George E. Barrett Professor of Law and Finance at University of San Diego School of Law. Professor Partnoy is one of the world’s leading experts on market regulation and a frequent commentator for the Financial Times, the New York Times, and NPR. He is the author of WAIT: The Art and Science of Delay, F.I.A.S.C.O., Infectious Greed, and The Match King.
  • An author-meets-readers session on the new book by Professor Michael Dorff of Southwestern Law School, Indispensable and Other Myths: The True Story of CEO Pay (Univ. of Cal. Press 2014). 
    • Two renowned experts on executive compensation and corporate governance will discuss this important new work: Stephen Bainbridge, the William D. Warren Distinguished Professor of Law at the UCLA School of Law; and Kevin Murphy, Professor of Business, Economics and Law at the USC Gould School of Law and the USC Marshall School of Business, where he was named chair of the department of finance and business economics and holds the E. Morgan Stanley Chair in Business Administration.
  • A plenary panel, The Securities Fraud Class Action after Halliburton, featuring top securities law experts and scholars discussing one of the most important business law cases before the U.S. Supreme Court this term: 
    • Stephen M. Bainbridge (UCLA School of Law) 
    • Robert P. Bartlett III (UC Berkeley School of Law) 
    • Mark I. Labaton (Isaacs, Friedberg & Labaton LLP) 
    • Adam C. Pritchard (University of Michigan Law School) 
    • Moderator and Discussant: Margaret V. Sachs (University of Georgia School of Law)