Friday, June 20, 2014

          Thinkers & Doers: June 20, 2014

          UC Hastings faculty, alumni, students and friends in the news and making moves, June 13-20, 2014.
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          Justice Marvin R. Baxter ’66 and his wife, Jane, in front of the Marvin and Jane Baxter Appellate Law Center, now the home of UC Hastings award-winning Moot Court teams.

          Marvin Baxter '66

          California Supreme Court Justice Marvin R. Baxter announced Wednesday that he will retire when his term ends in January, providing Gov. Jerry Brown another opportunity to reshape the state's high court.

          Baxter, 74, will have served 24 years. His retirement follows Justice Joyce L. Kennard's departure in April and further signals the coming changes to the court.

          "I have been privileged to have such an interesting and fulfilling career in the law, serving as a deputy district attorney, in private practice, as Appointments Secretary to Governor George Deukmejian, and as an Associate Justice on the California Court of Appeal and Supreme Court," Baxter said in a statement Wednesday. Read more here. Read our profile of Baxter in the Fall 2012 UC Hastings magazine here.

          Robin Feldman

          Professor Robin Feldman (@RobinCFeldman) provided analysis for The Recorder on a U.S. Supreme Court opinion expected to have a big impact on the software industry. The high court ruled in Alice v. CLS Bank International that an abstract idea does not become patent eligible merely by implementing it through a generic computer.

          Robin Feldman"It's an extraordinarily important intellectual property decision," said Feldman, who filed an amicus brief in the case. "Broad patents like these have been the weapon of choice for patent trolls and for the smartphone wars." Read more here.

          Feldman said that she believes the court's unanimous opinion sends a message to lower courts, particularly the U.S. Court of Appeals for the Federal Circuit, which had split 5-5 on whether Alice Corp.'s system claims were patent eligible.

          "This is the latest in what is essentially a conversation between the Supreme Court and the Federal Circuit," Feldman said.

          Justice Clarence Thomas' opinion repeatedly warned against patent holders using "drafting effort" or "draftsman's art" to monopolize abstract ideas. Feldman interpreted that as signaling the court is "fed up" with the Federal Circuit condoning the practice. "The message could not have been more clear," she said. Read more here

          Feldman told the Daily Journal technology companies have closely watched the matter because the U.S. Supreme Court has rarely - if ever - made a decision based purely on a software claim. She hailed the ruling as "one of the most important intellectual property decisions in recent memory."

          "The Alice Corp. litigation is at the heart of case law that has helped spawn modern patent trolling in the smartphone wars," Feldman said. "Until now, a patent could be drafted by listing the results of getting two computers to speak to each other, without having to specify how you accomplished it." Read more here (subscription required).

          Feldman told the San Francisco Business Times the Supreme Court "eviscerated" two decades worth of court rulings that approved patents that "helped spawn modern patent trolling and the smartphone wars." Prior rulings "encouraged drafting a patent by listing the result of what you are doing, such as getting two computers to speak to each other, without having to specify how you accomplished it."

          Feldman said the ruling's message was clear: "The court is fed up with the techniques that have become endemic to patent law. Clever drafting needs to stop. The question is whether the judges and lawyers will pay any attention." Hat tip to Justin Hager ’12, Communications Director for Assemblyman Mike Gatto (D-43). Read more here.

          Her work was also cited in an editorial on patent trolls in Nature. Read more here.

          Jeffrey Lefstin

          The U.S. Patent office revoked trademark protection for the Redskins name and logo this week. Professor Jeffrey Lefstin discussed with KTVU Channel 2. Interested in a deeper dive? Check out his Stanford Law Review paper on the topic (from the year 2000): Does the First Amendment Bar Cancellation of Redskins?

          Hadar Aviram

          Professor Hadar Aviram, Harry and Lillian Hastings Research Chair (@aviramh), has a new book from UC Press, Cheap on Crime.

          After forty years of increasing prison construction and incarceration rates, winds of change are blowing through the American correctional system.

          Hadar AviramThe financial crisis of 2008, and the resulting unsustainability of the incarceration project, empowered policymakers to reform punishment from a perspective of fiscal prudence and austerity. Relying on years of archival and journalistic research, and building on social history and economics literature, Cheap on Crime shows the impact of recession-era discourse on the death penalty, the war on drugs, incarceration practices, prison health care, and other aspects of the American correctional landscape.

          Aviram writes the California Correctional Crisis blog. The book is available for preorder here.

          Aviram spoke with ABC News and KTVU News about the prosecution of San Francisco political consultant Ryan Chamberlain who allegedly had a bomb in his apartment and the raw material necessary to produce the lethal toxin ricin. Read more, and watch her interviews, here and here.

          Joan C. Williams

          Distinguished Professor Joan C. Williams (@JoanCWilliams) spoke with Today Money about the persistent wage gap for women, particularly Millennials.

          When women ask for pay that is on par with their male peers, it can backfire, Williams said.

          Joan C. Williams"If you teach women to negotiate harder, it can hurt them," Williams, who runs the Center for WorkLife Law.
          Williams said job postings themselves can affect the pay gap. She pointed to a social science study that compared the results from two online job advertisements, one making no mention of salary and one saying the salary was negotiable.

          "Forty–five percent of the salary differential between men and women was erased when the ad said salary was negotiable," she said. "It told women that the good-girl thing to do was to negotiate—and even more important, that they would not be penalized for negotiating." CNBC also ran the piece, here.

          The Center for WorkLife Law’s research on “family status discrimination” (FSD) was cited in JDSupra. FDS is an increasingly recognized term that refers to discrimination against employees on the basis of their caregiving responsibilities, including those that actively participate in providing care for their children, aging parents, or ill or disabled family members. Despite an increase in the number of FSD cases, as reported by the Center for WorkLife Law, no federal statute—and very few states, for that matter—expressly prohibit discrimination based on family status. Read more here.

          Rory Little

          Professor Rory Little (@rorylittle) spoke with ESPN Magazine about Ed O’Bannon v. NCAA, which calls into question the very notion of college athletics. O'Bannon, a former UCLA basketball player, is suing the NCAA for the right of college athletes to market themselves.

          The judge in the case, Claudia Wilken, the Chief Judge of the U.S. District Court of Northern California and currently the most important referee in American sports.

          The case is a thrill to follow, said Little, a former federal prosecutor. The San Francisco Bay Area has a deep bench of plaintiffs' attorneys, he said. "There are just a lot of good lawyers here -- particularly a lot of good plaintiffs lawyers -- who have a lot of resources, so they're willing to take on the big boys.” Read more here.

          He told the San Jose Mercury News that whatever Wilken decides in the case, it will be "careful, nuanced and detailed."

          "No insincerity."

          "She's got a low-key personality," said Little. "But she doesn't make any mistakes." Read more here.

          Scott Dodson

          Professor Scott Dodson (@ProfDodson) spoke with SF Weekly about the shocking death of 2-year-old tourist Kayson Shelton, who was killed when a statue he was climbing upon outside a Fisherman's Wharf art gallery toppled onto him. For years, the San Francisco Police Department has known of the potentially dangerous situation, and warned area merchants of the potentially dangerous situation, but not proactively remedy the danger.

          Per the oft-cited state Supreme Court case Johnson v. California, discretionary immunity won't apply in situations where government officials fail to issue warnings of known hazards. But Dodson said the SFPD can certainly argue that its officers issued warnings. Read more here.

          Dorit Rubinstein Reiss

          Professor Dorit Rubinstein Reiss (@doritmi) published a blog post, Anti-Vaccine Claims, Mainstream Media, and Children, in The Times of Israel. She is a member of the Parents Advisory Board at UC Hastings. Read more here.

          David Levine

          Professor David Levine was quoted in the North Coast Journal on the apparently toxic environment in Eureka City Hall and a rift between members of the city council. They also raise serious questions about City Attorney Cyndy Day-Wilson's honesty, ethics and job performance.
          Levine said the accusations “serious and troubling.”

          If Madsen's information is true, it seems the city would have little trouble firing Day-Wilson for violating her duties, both by disseminating the confidential document to city employees and then by lying about it. But, Levine said, Madsen's affidavit likely wouldn't hold up in a court of law, so the city would have to corroborate Madsen's claims through an independent investigation in order to protect itself in taking any action against Day-Wilson. Levine said it's also potentially a matter the California State Bar could pursue as Day-Wilson is alleged to have violated the duties owed to her client, but again, Levine said the bar would have to conduct an independent investigation to corroborate Madsen's allegations before it could take any action. Read more here.

          Brian Pascal

          Research Fellow Brian Pascal (@bhpascal) spoke with Ars Technica about allegations police have been lying about cell phone tracking.

          A 2009 email exchange between police departments in Sarasota, Florida and North Port, Florida, shows that local law enforcement had concealed the use of cell phone-tracking devices, known as "stingrays," in court documents. This deception could lead to punishment for law enforcement officers or perhaps even their lawyers.

          Pascal said that this level of deception has reached a “whole new level.”

          “New technology makes it easier and easier for police to gather information and also to hide the source of that information,” he said. “In this kind of extreme case, it makes it almost impossible for a suspect to refute the evidence used against him. This isn't how our legal system is supposed to work. You don't get to lie about where your information came from.” Read more here.

          Mary Lovic

          Michigan Gov. Rick Snyder appointed Mary Lovic ’82 the state’s Task Force on the Prevention of Sexual Abuse of Children. Lovic is the staff attorney for the Michigan Domestic and Sexual Violence Prevention and Treatment Board. She previously served as an adjunct professor for the Detroit College of Law at Michigan State University and as publications administrator and research attorney for the Michigan Judicial Institute. She will represent the Michigan Domestic and Sexual Violence Prevention and Treatment Board.

          Chris Stevens

          President Barack Obama commemorated the late Ambassador Chris Stevens ’88, who was killed in the attack on a U.S. diplomatic facility.
          CBS News reported that U.S. Special Operations forces captured Ahmed Abu Khattala, a suspected leader of the 2012 Benghazi attack, in a secret raid.

          “He risked his life to stop a tyrant, then gave his life to help build a better Libya,” Secretary of State Hillary Clinton said during a press conference Wednesday morning. “The world need more Chris Stevens’s.”

          Stevens was a career diplomat who spoke Arabic and French and had already served two tours in Libya, including running the office in Benghazi during the revolt against Libyan leader Moammar Gadhafi. He was confirmed as ambassador to Libya by the Senate in 2012. Watch and read more here.

          David J. Cowan

          David J. Cowan ’88 was appointed to the Los Angeles County Superior Court bench. Cowan, of Los Angeles, has been a commissioner at L.A. County Superior Court since 2005. He was in private practice for 17 years before that. He got his B.A. from Columbia University. Read more here.

          Ruth E. Burdick

          National Labor Relations Board General Counsel Richard F. Griffin, Jr. announced the appointment of Agency attorney Ruth E. Burdick ’96 as Deputy Assistant General Counsel in the Division of Enforcement Litigation’s Appellate and Supreme Court Litigation Branch. That Branch litigates cases involving enforcement and review of the NLRB’s orders in the United States Courts of Appeals, and, working closely with the U.S. Department of Justice, Office of the Solicitor General, handles the Board’s Supreme Court caseload.

          Randy Wells

          Randy Wells ‘01 was named the 2013 Trial Lawyer of the Year by the Ventura County Trial Lawyers Association.
          The award recognizes an advocate who received a noteworthy civil trial result in the last year that contributed to the legal community and the improvement of the civil justice system.

          Wells obtained a jury verdict that included punitive damages from a unanimous Ventura County jury last year. He also got a near unprecedented mandatory injunction issued by Superior Court Judge Rebecca Riley. Read more here

          Read more Thinkers & Doers here. Know someone who should be in Thinkers & Doers? Send your story tips here.

          --June 10, 2014

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