Associate Professors NeJaime, Ocen publish in California Law Review

Law review articles by Associate Professors Doug NeJaime and Priscilla A. Ocen appear in the California Law Review issue published in October 2012.

NeJaime's "Marriage Inequality: Same-Sex Relationships, Religious Exemptions and the Production of Sexual Orientation Discrimination" (100 Cal. L. Rev. 1169) looks at the conflict between marriage equality and religious liberty. Ocen's "Punishing Pregnancy: Race, Incarceration, and the Shackling of Pregnant Prisoners" (100 Cal. L. Rev. 1239) provides a critical assessment of the practice of shackling female prisoners who are in labor, and the historical undertones of the practice.

Prof. West-Faulcon filed amicus brief in Supreme Court case on race as factor in college admissions

Professor Kimberly West-Faulcon submitted an amicus curiae brief on behalf of the respondents in Fisher v. Univ. of TX at Austin.
In it, she wrote:
This brief explains how social science research undermines the common misconception that black applicants must be receiving "preferential" treatment and that the magnitude of the so-called "preference" is large on the basis of a casual numerical comparison of the average test scores of black admits as compared to white admits. It also explains that "the gap" in black-white group average scores on traditional mental tests, while still in existence, has been narrowing for several decades. The brief describes the relevance of contemporary research finding that theoretically-improved and updated versions of such tests have been shown to narrow the black-white average score gap presumably because they are based on more theoretically robust and more outcome predictive theories of intelligence. Such research calls into question petitioner's allegation that UT's minimal consideration of race as a factor in admissions violates her Fourteenth Amendment constitutional rights because she is Caucasian.
Read the complete brief.

Faculty Workshop Series Presents David Ball

Assistant Professor David Ball from Santa Clara Law will present his paper, "Why Should States Pay for Prisons, When Local Officials Decide Who Goes There?" on Thursday, October 11, 2012. Ball will begin speaking at 11:45 am in Casassa 401 and lunch will be provided.

Book Review: Steve Jobs by Walter Isaacson

By Professor Jeffery Atik

If only Lytton Strachey had written this biography of Steve Jobs. He would have punctured Jobs, ridiculed his dirty feet and preachiness, his unshattered conviction of his own primacy. Not that Jobs wasn't a great figure: he certainly was. But there is something off-putting when a biographer lets his subject declare (and so establish) his own importance. The temptation in reviewing this biography is to assess the subject and not the book. And the subject is certainly compelling. Jobs' accomplishments are familiar, his eccentricities less so. And so there is sordid attraction exercised by his abandonments, his eating disorders, his cruelty.

Isaacson relishes his access to Jobs and produces a work Larry King would envy. Certainly Jobs' foibles are presented -- but simply because a biographer has a license to report 'warts and all' does not discharge his critical responsibility. Isaacson does not judge Jobs. At best, he reports -- in various fragments -- the partial judgments of Jobs' many friends, colleagues and acquaintances. Joan Baez is perhaps the most honest of all: she has little to say beyond a typifying story (Jobs is clueless) and leaves the impression that she meant more to Steve than Steve ever meant to her.

No doubt many readers of this book will search for easy recipes for replicating Jobs' phenomenal business achievements. Jobs seems to have had two running theories for Apple's success. The first account celebrates Apple's industrial design. The design story is complex -- and has deep psychological roots. Jobs learns from his father (a modest man he greatly admired) of the importance of finish, even for elements hidden from view. Design does not reflect the creator's integrity; it assures it. But design involves more than form following function -- the book is replete with stories of Jobs' rejecting engineers' design compromises that duly reflect functional concerns. The aesthetic trumps the functional in these stories (Isaacson gives no counterexamples), at times leading to stunning product, and at other times, to disappointment and delusion. In the affair known as "Antennagate," Jobs had insisted that a gorgeous steel rim surround the iPhone 4. Unfortunately, this compromised an essential function: the phone dropped calls at a higher rate. The technical solution adopted by many (and offered by Jobs) was an ugly case which, of course, masked the iPhone 4's design!

Jobs had a wonderful design sense, though he became increasingly closed off to new aesthetic experience. Dylan remained the center of his musical universe (his iTunes list is true to baby-boomer form). He perceives Bach's greatness -- but stops there (though Yo-Yo Ma is a 'friend'). Had Jobs been more intrigued by music -- and willing to explore - he may have found artists who better reflected his simplicity instincts.

Faculty Workshop Series Presented Anne Dailey

Evangeline Starr Professor Anne Dailey of the University of Connecticut School of Law spoke on "Reinterpreting Tarasoff" as part of Loyola's Faculty Workshop Series.

Attraverso - Digital Copyright Crimes and the Trans-Pacific Partnership

By Professor Jeffery Atik

The IP provisions of the Trans-Pacific Partnership (TPP), a regional trade agreement involving the United States and 10 other Pacific Rim nations, are not merely 'TRIPS Plus;' they are also 'WIPO Plus.'

Two major multilateral copyright treaties came into force following the establishment of TRIPS: the 1996 WIPO Copyright Treaty and the 1996 WIPO Performances and Phonograms Treaty. Together, these treaties expand protection to authors and performers in the digital environment. As WIPO products, these two treaties, known together as the WIPO Internet Treaties, reflect fairly broad international consensus, in contrast to the more contentious 'TRIPS Plus' norms promoted by the United States and Europe in various bilateral and regional settings. The now abandoned Anti-Counterfeiting Trade Agreement (ACTA) was an attempt to construct TRIPS Plus broadly, outside of the WTO.

The WIPO Internet Treaties establish new categories of unlawful activity, but they do not require the imposition of criminal penalties on infringers. For example, Article 11 of the WIPO Copyright Treaty requires signatories to "provide adequate legal protection and effective legal remedies" against persons who circumvent technological measures for the protection of copyrighted works. While the WIPO Copyright Treaty does not prevent a signatory from imposing criminal liability in these cases, neither does it mandate it.

The 1998 Digital Millenium Copyright Act (DMCA) purports to be the United States implementation of the WIPO Internet Treaties. Yet the DMCA arguably goes beyond the WIPO Internet Treaties by imposing criminal liability on persons who "willfully violate" DMCA's central provisions "for purposes of commercial advantage or private financial gain."

Book Review: What Chinese Want: Culture, Communism and the Modern Chinese Consumer by Tom Doctoroff

By Professor Jeffery Atik

In this unabashedly pop business book, Tom Doctoroff, head of the J. Walter Thompson advertising firm in China, tells us What Chinese Want. Yet the implicit question is complex: what do the Chinese want for themselves? For their children? For China? And to answer the question coherently involves considerable psychological framework. Doctoroff is an ad guy -- so the question that lies squarely within his expertise might be: what does the Chinese consumer want to consume? And this question he begins to answer. He is less certain -- and less convincing -- when applying the insights he draws from Chinese consumption habits to the more mysterious nature of Chinese culture, politics and foreign policy.

I suppose we can learn something meaningful about the Chinese from studying their patterns of material consumption -- even using the tools of an advertising executive. In some sense, Doctoroff's inquiry is an exercise in applied cultural anthropology -- though his ends are more instrumental than scientific. So which firms are doing well in China -- and what do their successful adaptations suggest?

Starbucks, Doctoroff tells us, has configured larger stores in China which serve as group meeting places. The Chinese consumer would not pay the equivalent for $4.00 for a cup of coffee for private consumption (this may reveal the inherent cross-elasticity of Starbucks coffee and ubiquitous hot tea). The consumer will do so, however, when observed by others; the Starbucks customer's extravagant expenditure for a latte is justified by a gain in social standing. And so by facilitating the prospect of mutual observation -- by providing large, welcoming meeting spaces -- Starbucks sells coffee in China.