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.

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.

What politicians really think about Citizens United

By Professor Justin Levitt

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.

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)

The O.J. Simpson Legacy

By Professor Laurie Levenson

Twenty years ago, my life was changed by the so-called "Trial of the Century" -- the O.J. Simpson murder case. CBS asked me to serve as their Legal Commentator for the case. I was proud to do so. I worked with an extraordinary team of journalists, including anchor Dan Rather, to cover a case that was to have an enormous impact on Los Angeles and our legal system.

As an active law professor, I worked from 4:00 a.m. (when I did the morning shows) to 11:00 p.m. (when I appeared on late-night coverage). In between, I attended the trial, provided hour-by-hour analysis, and then taught my classes from 6:00-8:00 p.m. The students were enthralled by the case, so it really was an incredible teaching tool. I also wrote a daily column for the Los Angeles Times.

The O.J. case raised many important issues, including: (1) What impact do celebrity and race have on trials? (2) How should we address issues of domestic violence? (3) Should cameras be allowed in the courtroom? (4) How should jurors for high-profile cases be selected and should they be sequestered during trial? (5) How effective of a tool is DNA for prosecutors? (6) How much trust do the people of Los Angeles, particularly minorities, have in the LAPD? (7) What is the role of defense lawyers in trying their case in the media? (8) How much difference does venue make in a case? (9) How do individual evidentiary rulings, including the admission of testimony regarding "dream" evidence, affect a trial? and, of course, (10) What should be the role of a legal commentator?

California Primary was a Striking Display of Voter Apathy. But Was It Their Fault?

By Professor Jessica Levinson

This op-ed originally appeared on Politix.

I have three words to describe the primary elections held in California this week: What the what? Special thanks go to Tina Fey for coining this apt phrase.

Sure, the outcome of many races was not a surprise, but election night took a few unexpected turns.

First, voter turnout statewide was 18.3%. Read that again. Less than one of the five people who are registered to vote bothered to show up. There are about 17.7 million registered voters in California and just over 3.2 million cast a ballot in the June 3 elections. Over 38 million people live in the state, which means that each person who voted essentially weighed in on behalf of almost 12 others.

Things were worse on the local level with 13.1% of registered voters in Los Angeles County casting a ballot in a variety of contests from County Board of Supervisors to Sheriff. More on the Sheriff's race in a moment. Over 9.9 million people live in the County, and over 4.8 million are registered to vote. This means that each of the over 636 thousand people who voted in Los Angeles County made decisions affecting 15 others.

There are a number of reasons why this is the case. The "biggest" race on the statewide level was for Secretary of State, and that office typically does not bring people to the polls, although ironically it is that office that helps run the polls.

New 'Jungle Primary' System Shakes up California Election

By Professor Jessica Levinson

In what will be a low-turn out, but high-impact election, voters will head to the polls to weigh in on a variety of state and local races. In the race for governor, the main question is which of two Republicans will lose to Gov. Jerry Brown in November. The party establishment is pulling for moderate Neel Kashkari while conservatives and tea party members have demonstrated grassroots support for Assemblyman Tim Donnelly.

This is the first set of statewide elections run under California's new top two, open primary law. Under the so-called "jungle primary" law, any voter can vote for any candidate in the primary election, regardless of party affiliation. Then a runoff is held between the top two vote getters, who are sometimes members of the same party. The law could shake up a number of races, including the Secretary of State's race. On the federal level, many eyes are on the race to replace long-serving Congressman Henry Waxman. In a race with over a dozen candidates, and a number of familiar faces, it is very difficult to predict who will live to fight another day in the November runoff.

In Los Angeles voters will weigh in on a number of low visibility, but powerful offices. For the first time in almost 100 years there is an election for LA County Sheriff in which an incumbent is not on the ballot and an outsider may be victorious. Each candidate is running as a reformer who can clean up the scandal-plagued department.

Thanks to term limits two of the five Los Angeles County Supervisors seats are now open. One of these race brings three competitive candidates vying for this powerful position with control over vast sums of country resources.

Despite all of this, few registered voters, let alone eligible voters, will show up to the polls. Those who do show up will have a significant say in determining the makeup of federal, state and local government.

Follow Professor Levinson on Twitter @LevinsonJessica or via her blog, PoLawTics.