Jurisdynamics

Soft law and the global financial system

2012-01-12T12:28:00.002-05:00

Jim Chen, Book Review, Soft Law and the Global Financial System: Rule-Making in the Twenty-First Century, 26 Emory Int'l L. Rev. (forthcoming 2012) (available at http://ssrn.com/abstract=1944294):

In Soft Law and the Global Financial System: Rule-Making in the Twenty-First Century (2011), Christopher J. Brummer provides a detailed and informative analysis of the international regulatory response to the global financial crisis of 2008. This accomplishment alone warrants a close look at this book. But Professor Brummer goes further in this pivotal work on the law of international finance. He provides a persuasive theoretical account of international financial law. Soft Law and the Global Financial System not only describes the mechanisms of lawmaking and standard-setting for global financial markets, but also delivers a workable framework for prescribing and perhaps even perfecting the regulation of the world’s most vital and volatile economic institutions.

A summer teaching clearinghouse

2012-01-08T19:32:00.002-05:00

Editor's note:: Reposted from Health Law Blog.

Although many law schools, both in the United States and to a lesser extent abroad, hire faculty members other than their own to teach summer school, this has always been a haphazard process. Establishing a general clearinghouse for law school summer teaching positions is likely to provide a great benefit for both law faculty and law schools across the country and the world. The Health Law Prof Blog has agreed to host the clearinghouse by posting all of the notices of teaching opportunities for the Summer of 2012.

Please share the following information in your announcement and send it for posting on the Health Law Profs Blog to either Jennifer Bard at jennifer.bard@ttu.edu or Katharine Van Tassel at kvantassel@stu.edu:

(a) the name of your school; (b) the name of the chair of your summer hiring committee and that person's contact information; (c) any particular subject areas in which your school is looking to hire; (d) the dates that the summer class(es) will be taught; and, (e) any other information you think might be relevant.

Progressive Taxation: An Aesthetic and Moral Defense

2012-01-06T17:31:00.003-05:00

Jim Chen, Progressive Taxation: an Aesthetic and Moral Defense, 50 U. Louisville L. Rev. (forthcoming 2012) (available at http://ssrn.com/abstract=1980731:

The power to tax is at once the power to create and the power to destroy. If the United States government hopes to discharge its primary duty as creator and protector of its citizens’ wealth, it must be willing to destroy wealth, from time to time, by redistributing it. More than any other tool, the means by which government finances and depletes its treasury affects the societal distribution of wealth. Differential taxation and targeted spending are the most significant and most effective means by which government can “gradually and continually . . . correct the distribution of wealth to prevent concentrations of power detrimental to the fair value of political liberty and fair equality of opportunity.” Redistribution and the attendant destruction of entrenched wealth serve as society’s ultimate weapons of “creative destruction.” Of the many forces that have propelled the United States to the economic, political, social, and military pinnacle of the modern world, its willingness to countenance radical technological and organizational upheaval probably ranks first. American prosperity depends on the federal government’s commitment to an economic environment in which citizens are able not only to amass large amounts of new wealth, but also to lose it in rapid and remorseless fashion.

Update: I am grateful to Paul Caron for featuring this article on Tax LawProf Blog.

Innovation Incentives Part 3: Combining Innovation Index and Product Cluster Models

2011-12-15T09:29:00.001-05:00

Understanding the Consequences of Linking Market and Regulatory Incentives for Drug Development: Part 3

Editor's note: This is the third installment of a three-part series.

In Parts 1 and 2, we learned that it is both possible and valuable to import empirical scientific methods typically used in the hard sciences to the study of law. In fact, in our analysis of patent law and policy we can move beyond patent valuation to assess how and indeed whether a given piece of law or policy is working in conjunction to its so-called original policy intent. This includes the assessment of innovation within the context of the patent bargain, and whether governments that have accepted linkage laws are being rewarded in their twin policy goals of producing more new and innovative drugs and facilitating timely generic entry. Put another way, can we assess using the new tools of empirical legal research whether, as Senator Hatch put it at the time the U.S. linkage legislation came into force, the public is in fact “receiving the best of both worlds - cheaper drugs today and better drugs tomorrow.”

We can attempt to address this possibility using the innovation index discussed in Part 2 in combination with 3-D spatiotemporal models such as those used in the medical sciences. Over the last few decades, these models have been used increasingly for studying protein, DNA, RNA, and other structure-function relationships, including using x-ray and other crystallography techniques. Consistent with their use in medicine, 3-D legal models can be used to construct data for both descriptive (structural) and prescriptive (functional) law-making and law-reform purposes.

Read the rest of this post . . . .For example, in our Northwestern study, we developed a 2-D model of identifying patents in relation to “new and innovative” drugs and “follow-on” drugs that tracked the functional and temporal evolution of drug forms and associated patents over time. The example below is for the combination of Salmeterol and Fluticasone into one of several available forms of Advair®. We referred to this technique as a “patent tree” method and used it specifically to identify legally-related drug forms, associated patents, and patent types.

Fig. 1. Example of Convergent Patent Tree Analysis for Forth Generation Product Advair Diskus.®Patents were identified using the specific and general search strings described in our Berkeley study. In addition to quantifying patents per drug, the patent tree method allows assessment of how specific drugs evolve into related drug forms or (in this case) drug products representing combinations of known drugs. In addition, the patent tree analysis allows for identification of relevant patent types based on the classification nomenclature described in the Northwestern study. Finally, the patent tree analysis provides data relating to drug development, but also on the type of patents selected by pharmaceutical companies for listing on the patent register in order to prevent generic entry.

This method can be extended, as shown below, to identify “product clusters.” In particular, the patent tree method can easily be expanded to include patents listed on the patent register under linkage law, and a diagonally increasing axis of cumulative spatiotemporal growth. The resulting model represents a constellation of legally and functionally related new and follow-on drug forms and regulatory approvals, patents associated with these drug forms, the fraction of total patents listed on the patent register in order to slow down generic entry under linkage laws, and how each of the data classes relate to one another over time.

Fig. 2 Product Cluster-Based Model of Drug Development.Product clusters begin at some point in time with the first new and innovative drug (●; NCE) and associated originating patent (●). With time, and vetting by the market and regulators, further follow-on drug approvals (●) and patents (●) are granted within the cluster, and an increasing number of these patents are listed on the patent register (●). Listed patents can be used increasingly over time to prohibit generic entry not only on the originating new and innovative drug, but also on all drugs in the cluster that are deemed under law to be relevant to the originating drug.

We are now in a position to take our 2-D product cluster model above, first reported in 2011, and combine it with the innovation index depicted in Part 2 of this series, reproduced below for convenience.

Fig. 3. Innovation Index Data for Total Approval Cohort. Bar graphs showing the number of total approvals expressed as a function of the level of innovation (LOI) before (a) and after (b) of generic approval data. c Brand approvals expressed as a function of LOI. Solid line is a fit of the data to a single exponential function. d Cumulative normalized brand approvals expressed as a function of LOI. Solid line is fit using a sigmoidal function.

The combination of the drug nomenclature, product cluster and innovation index described in Fig. 4 yields a potentially new way of looking at the impact of regulatory and market incentives on drug development by multinational firms, As shown clearly by the data in the Boston study, this clearly includes both brand-name firms and generic firms, as both are pursuing cluster-based models of drug development. The resulting analytical model focuses on drug development driven by purposeful policy, and cumulative vetting of serial products by regulators and the market.

Described in detail in a forthcoming book, drug clusters denoted ‘on deck’, ‘at bat’, and ‘home run’ represent a theoretical mock-up of how drug clusters grow in time from a spatiotemporal perspective. In this model, product-patent clusters begin their life as single-drug products or small groupings at the most innovative end of the index and, with increased vetting of products in the cluster over time by regulators and the market grow in scope to encompass an increasing number of products and patents. As this occurs, the cluster may be anticipated to ‘swing up and to the left’ of the innovation index, moving from a high level of innovation with a low number of patents and listed patents to first a moderate and then a much lower level of innovation but with greater spatiotemporal characteristics. The model shown here is for 2,087 drug approvals over an eight year study period; similar results have been obtained using patents and chemical components.

Fig. 4. Combining Innovation Index and Product Cluster Models to Study Portfolio-Based Drug Development and Hedging.Product clusters are hypothesized to begin life at the most innovative end of the spectrum, with few patents and a small or negligible number of listed patents. Over time, and increased vetting by regulators and the market, the cluster expands to include more products, patents and listed patents but, as a whole becomes less and less innovative. The desired end point (the “home run”) is a substantial but low level cluster with numerous products, patents and listed patents, and the widest scope of market exclusivity and cumulative patent protection. Prior to this point, clusters are “at bat”, as they reach a critical state prior to moving into an expanded spatiotemporal state or merely “on deck” as firms await critical regulator and market vetting.

An important observation with regard to product-patent drug clusters is that as a given cluster grows spatiotemporally over time, it grows not only in scope but also in the scale of the interrelatedness of its functional components over time.

As noted in 2001 by Kingston and later by Polk & Parchomovsky and, notably, the EC Pharmaceutical Sector Inquiry, the strength of patent portfolios and related product clusters from an intellectual property law perspective is “greater than the sum of its parts”. This “more is different” element, originally described in 1972 by PW Anderson, is characteristic of complex systems, including complex legal systems such as those described by JB Ruhl and many others in the mid-1990s. As noted in Part 1, we have referred to the complex multidirectional interrelationships and interdependencies between drug development, drug regulation and intellectual property law in our previous McGill and Berkeley studies as a regulated Therapeutic Product Lifecycle, or rTPL.

Of interest, our data show that the profit of a given molecule is strongly related to the number of patents, regulatory approvals, the number of patents listed on the register, and the range of drugs and regulatory approvals that are legally related but separated by only very minimal changes to existing uses and chemistry. This is true even for drugs thought be innovative such as those with First in Class and New Active Substance (New Chemical Entities), owing to regulatory loopholes.

Somewhat surprisingly, in light of global innovation policy over the last 50 years, the greater the number and scope of these metrics the lower is the calculated level of innovation of a basket of drugs in a product cluster. As market and regulator vetting increases with time, one sees generally (1) more patents, regulatory approvals, fractional patent listing, patent classifications per marketed drug, (2) a greater follow-on-to-new drug ratio in the cohorts studied, and (3) greater profitability for less innovative drugs.

Indeed, drug clusters driven by line extension, or follow-on, drugs are proving to be very profitable. For example, we found that the vast majority of approval, patenting and chemical development activity associated with brand pharmaceutical products is directed to the development of Me Too drugs, in particular follow-on Me Too drugs. Of the top 25 most profitable drugs in 2006, 48% (12) were line extension Me Too drugs. The combined sales of these drugs were US $45.7 billion dollars. Follow-on First in Class drugs represented 28% of the top 25 selling drugs, and 7 of the top 15 selling drugs. Profit on this group of drugs was US $39.7 billion dollars in 2006.

Combined, follow-on Me Too and First in Class drugs accounted for 19 of 25 of the most profitable drugs, with total sales of US $85.5 billion in a single year.

From a "science of law" perspective, a major advantage of the rTPL and product cluster models is that there is, in fact, considerable empirical evidence available for study for all interested parties. This includes the various types of new and follow-on drugs, patents, patent classifications, listed patents, related litigation, as well as the relation of these metrics to one another over time. This wide array of empirically observable metrics and the observation that they change over time sets up the possibility that, akin to protein folding and X-ray crystallography models, the data can be expressed in 3-D spatiotemporal form.

Indeed, the goal of our empirical work over the last four years involving new and follow-on drugs, patent trees, patent types, WHO Anatomical Therapeutic Classification (ATC) data, litigation data, the innovation index, and product cluster model is to convert the cumulative data into 3-D formats used in the medical sciences. For example, the protein-RNA model presented below underscores the utility of 3-D “rotational” models to both identify and quantify the complex structural and functional characteristics in a given network of biological components, here those between an RNA strand and protein components in the context of Multiple Sclerosis.

Fig. 5. Medical Sciences Template for Rotational 3-D Spatiotemporal Models of Cluster-Based Drug Development. From: Joint Evolutionary Tree Method for Study of MS.

As discussed previously, rotational 3-D drug product-drug patent cluster models would be particularly useful to policy-makers and law-makers in order to enable visual and numerical quantification of the impact of intellectual property law on drug development, generic entry, and access to essential medications in the same manner that one might look at a car from behind (highlighting the ‘gas tank,’ or original drug product and associated patent tandems) as well as from the side (from the rear to the front of the vehicle, underscoring how and when approvals, patents, and listed patents increase over time with market and regulator vetting).

In this manner, extrapolating the empirical techniques conventionally used in the hard sciences to the study of law, including patent law and innovation policy, offers an important opportunity to not only quantify the effect of a given piece of law or policy, but also to help determine the vires of such laws after they have been put in motion and to guide law reform efforts in light of objective arm’s length evidence.

It is hoped this series of articles has shed some light on the utility of traditional scientific methods for quantitative and qualitative assessment of patent value, and whether laws made decades ago to enhance innovation in the pharmaceutical sector and to facilitate timely generic entry are producing intended effects, unintended effects, or some combination of both. A second consideration is whether empirical legal research can be a valuable tool to assess the convergence of public health law and industrial law such as that which has evolved in most developed nations over the last three decades.

In any event, it will be interesting to see whether, as in other fields such as medicine and engineering that are accustomed to taking an “evidence-based” approach to problem identification and problem solving, whether we in the legal field may also include empirical evidence in our expanding toolkit of legal assessment and interpretation methods.

Innovation Incentives Part 2: Patent Valuation

2011-12-06T09:27:00.003-05:00

Understanding the Consequences of Linking Market and Regulatory Incentives for Drug Development: Part 2

Editor's note: This is the second installment of a three-part series.

In new work by our group, we have outlined a tandem of new methodological tools to identify and quantify new and follow-on drugs and patent valuation. The first is a harmonized method to quantify drug approvals, patents and associated chemical components that summarizes and extends our previous work on topic. The second provides a new “innovation index” that incrementally grades the value, not only for patents in the life sciences and other technology-intensive sectors, but also for associated regulatory approvals, chemical components, patent characteristics, etc. The innovation index values are based on evidentiary hurdles and prioritizations for several classes of “new” and “follow-on” drugs disclosed by drug regulators. As indicated by the titles of the articles, one focuses on the quantitative side while the other focuses on the qualitative side of the analysis.

The Boston Article presents a harmonized method to collect, compare, and quantify regulatory approval data from multiple cohorts of new and follow-on drugs. We looked in some detail at about 2,000 regulatory approvals, 5,000 patents, and 130 chemical components. The analysis encompasses all drug classes enumerated, described and prioritized by domestic drug regulators. The drug classes were gleaned from the usual literature reviews, supplemented by several hours of consultation with Health Canada regulators and review of Health Canada Guidance Documents on topic. A second purpose of this work was to go beyond simplified descriptors of new and follow-on drugs found in the literature, to categorize classes of new, line extension and generic approvals according to the nomenclature used by regulators themselves. This latter point is relevant is relevant, as we found different scholars use different approaches and nomenclatures, sometimes very different, and that these approaches were not always the same as those used by regulators themselves.

Read the rest of this post . . . .The innovation index work described in the companion Santa Clara Article was driven by the fact that almost all published patent assessment methods measure innovation using primarily quantitative methods, otherwise referred to as ‘counting methods.’ For reasons discussed in work on topic by Kingston at Trinity, Lemley at Stanford and Polk and Parchomovsky at Penn, and the sources cited therein, while quantitative models are widely considered to be problematic, a model that assesses patent value using qualitative methods that track, or are at least designed to track social benefits, has not yet emerged. A second reason for developing the two methods is that is that even when many scholars and commentators do look at the “innovative” aspect of the data, they simply accept data provided by regulators in their respective annual reports in a per se manner.

While developing a novel scientific method for either obtaining or analyzing legal data is fraught with its own problems, this step nevertheless forms a necessary component of the “trial and error” heuristic typical in the hard sciences. As more individuals with prior experience in medical science enter law and legal scholarship, we will undoubtedly see more and more scientific studies of law, including importing of fundamental mathematical, statistical, curve fitting, modeling, and graphing methods. In the Santa Clara paper, a qualitative innovation index is reported that we hope may fill some of the gaps in patent valuation. One of the figures from this work, relating to regulatory approvals, is shown below.

Fig. 1. Innovation Index Data for Total Approval Cohort. Bar graphs showing the number of total approvals expressed as a function of the level of innovation (LOI) before (a) and after (b) of generic approval data. c Brand approvals expressed as a function of LOI. Solid line is a fit of the data to a single exponential function. d Cumulative normalized brand approvals expressed as a function of LOI. Solid line is fit using a sigmoidal function.

The figure presents data for many classes of new and follow-on drugs and categorizes these classes using a linear scheme. Raw data values are given in the Y axis of Fig. 1a and 1b, the difference being generic data were subtracted in Fig. 1b to isolate data only from ‘innovator’ firms. The X axis in both panels represents the innovation index data. The innovation index data are referred to as transformed data, because the raw data pertaining to drug approvals, drug patents, and chemical components are transformed into qualitative values on a linear scale (0-15) using the methods outlined in the Santa Clara paper.

The strengths and weaknesses of the hybrid “subjective-objective” nature of data transformation, and the similarities to subjective-objective hybrid models that are already widely accepted for use in the fields of drug approval, patent grant, and the adjudication of patent claims by the courts are discussed more fully there.

Data can, of course, be fit to many types of numerical functions, linear or non-linear; increasing or decreasing. Fig. 1c above shows that the data in the bar graph of Fig. 1b fit to a declining exponential function. As can be seen by the close fit of the data to the function, the choice of an exponential relationship was well founded. The data are interesting as they demonstrate an exponential decline in the numbers of drugs in classes with relatively high innovation index values. In other words, the vast majority of drugs approved in Canada have a very low index value, and indeed are primarily follow-on Me Too drugs.

Fig. 1d represents the normalized cumulative data fit to a sigmoid (S-shaped log) function, which is a numerical approximation of “how fast” the innovation index data rise to their maximal peak. A fast rise, as we see here, suggests that most of the drugs approved over nearly a decade are in the low index bins and that the data in the low index bins accumulate much more rapidly than do the data in the higher index bins. Similar, though not identical, results were obtained with several indicator Cohorts studied, including a wide Cohort of 2,087 drugs, a narrower Cohort of 95 of the most profitable drugs, and a similar Cohort of associated patents and chemical components.

The innovation index provides a means of weighing legitimate patent protection against perceived societal benefit. As such, it affords a qualitative measure of the innovative nature of drug patents that, when compared to counting methods, may more adequately reveal the outcome of development incentives for firms and regulating bodies insofar as these parties have conflicting interests.

The results from our analysis indicate that it is not the most innovative or even strongly innovative drugs that are attracting the greatest firm patenting effort. Rather, when gauged against development priorities publicly disclosed by regulators and governments, including specifically in the United States and Canada where linkage first came into force, it is the least innovative drugs of all classes investigated that display the strongest regulatory approval and patenting efforts. This issue is touched on in more detail in Part 3 of the series.

In this manner, our data are contrary to the established dogma that the strength of patent protection is proportional to the "strength" of innovation of a given product. As discussed more fully in Part 3, the data obtained also support the conclusion that cluster-based, or portfolio-based, drug development has become the dominant innovation strategy for both brand and generic firms. Indeed, data from our Boston study demonstrates conclusively that generic firms are accruing more patents than their brand counter-parts, especially in the new drug approval category.

Finally, the data suggest that the perception on the part of governments and the public to the effect that societal benefit comes as a kind of “natural consequence” of patenting may need to be reconsidered.

Innovation Incentives Part 1: Regulated Therapeutic Product Lifecycle

2011-11-29T11:05:00.049-05:00

Understanding the Consequences of Linking Market and Regulatory Incentives for Drug Development: Part 1

This is a three-part series by guest blogger Ron A. Bouchard.

Dr Ron A. Bouchard is an intellectual property lawyer and scholar, specializing in biomedical products. He began his career as a medical scientist, completing a PhD and Postdoctoral Fellowship in the field of ion channel biophysics and Ca2+ imaging. He shifted focus to obtain a law degree specializing in pharmaceutical and biotechnology law and has been involved in the prosecution, acquisition, financing, distribution, and litigation of intellectual property rights. Dr Bouchard has appeared before the Federal Court of Canada and the Supreme Court of Canada. He is a Professor of Law and Medicine, and is the recipient of a Canadian Institutes for Health Research (CIHR) New Investigator Award. He is currently on sabbatical.

Patent valuation has become a hot button issue of late, particularly in the area of pharmaceuticals. In the effort to win the global innovation race, substantial policy and economic efforts are being made by developed and developing nations alike in support of innovation, both in terms of understanding it and making more of it when innovation does occur.

The issue of patent valuation presents to an increasingly educated lay audience as a kind of titanic contest of wills between those who prefer big incentives for innovation and those who focus of the social benefits, or outcomes, of innovation.

Many studies of innovation and patent valuation use economic models to assess the business value associated with patents at a given point in time, as well as ways of maximizing value from those patents. Although there are certainly many skeptics, innovation and patenting have nevertheless become synonymous in economic discussions of national productivity and prosperity in a wide variety of debates, including scholarly, political, civil service, and in the media.

Read the rest of this post . . . .In the world of life sciences products, a distinction can be made between an economic analysis - even one cast in a law and economics light - and a patent law analysis. This is because one is primarily (though not exclusively) in service of utilitarian benefit and the other is primarily (though not exclusively) in service of equity, equality and the terms of the traditional patent bargain. As instructed by the courts when pharmaceutical patents are at issue, the patent bargain is itself to be interpreted through the public health mandate as it is bound by the unique trifecta of patent law, food and drug law and linkage law.

This places patent valuation front and center of any discussion of law reform focused on pharmaceutical innovation, as well as discussions and law reform aimed at reducing drug costs and expenditures. The fact that, unlike in many other industries, follow-on products may offer little benefit compared to existing products raises the bar on this discussion, as does the fact that patents associated with these products can be used as more of a sword than a shield to evergreen older product lines and keep drug prices high.

Because the availability, costs and expenditures of drugs are regulated by such a complex array of legal, policy and political vehicles, their analysis is quite amenable to “complexity”-based frameworks, which by design place significant emphasis on feedback loops between multiple interrelated nodes.

In this case the nodes, or spheres to use the nomenclature of Walzer, are industrial, economic, public health, and political in nature but also play out in numerous intersecting ways in statutory, regulatory, policy, and judicial terms. In our Berkeley study, we presented the model below for the development, consumption and regulation of drug products, referring to it as a regulated Therapeutic Product Lifecycle (rTPL).

Fig. 1. rTPL Innovation Ecology Model for Drug Development.

Innovation is represented as an iterative process over time involving several functional groupings, including national science and technology (S&T) policy, clinical research, university and firm commercialization, innovation by private firms, drug regulation by national governments, and intellectual property and regulatory (IPR) rights covering both drug submissions and marketed products. Large red nodes represent functional groupings, and include sub-functions enumerated in the figure. Red lines are multi-directional between nodes and sub-functions and are independent of time (acknowledging that the process generally moves clockwise).

Through diagrams such as these, one can see that patent rights and incentives permeate all stages of the rTPL. As we have noted elsewhere, even assuming a relatively linear innovation process, because of regulatory incentives that allow the public to gain access to therapeutic products prior to conventional Phase 3 trials, and because linkage laws allow for the development of clusters of interrelated new and follow-on drugs and associated patents, the regulatory lifecycle for drugs has become at once increasingly complex, intertwined, and collapsed. Linkage laws in particular complicate the picture as they are intended to both facilitate industrial development in the form of new drugs and to satisfy the public health mandate by yielding cost savings on generic entry.

One might argue that the convergence of public health and industrial policy of this nature calls for a clear and concise set of policy levers governing the complex innovation ecology for therapeutic products, particularly in jurisdictions where the availability of both brand and generic drugs are regulated by linkage laws.

Yet, as noted in the recent decision of the High Court of Delhi in India, where (like the E.U.) linkage was rejected, the court held that worldwide there is a "raging debate on whether patent linkage should be permitted," concluding there is "no uniformity in the policy of different countries."

In North America, the birthplace of linkage, the Supreme Court of Canada held in its seminal decisions in Biolyse and AstraZeneca that linkage regulations tying generic entry to brand-name patents must be made in a patent-specific manner. The court's pronouncement highlights the importance of the qualitative and quantitative nature of the balance inherent to the patent bargain, especially when read in light of the so-called “special provisions” of linkage laws when parsing pharmaceutical patents.

As pointed out by the Global Consortium on Pharmaceutical Linkage in a recent article, patent law is also antecedent to linkage in the United States, which was the first jurisdiction globally to promulgate linkage laws. This was made clear by the seminal reports of the Committee on the Judiciary (COJ) and the Committee on Energy and Commerce (CEC) prior to the coming into force of Hatch Waxman. Both the COJ and CEC made it clear that the twin policy goals of linkage laws were to encourage the development of “new and innovative” drugs and to facilitate the “timely” entry of generic drugs.

Both of these competing policy goals depend on patents, and so again we arrive at a pivotal role for patent valuation in determining outcomes related to the twin policy goals at issue.

So, what evidence is there to assess whether these two policy goals have been met by patent, food and drug, and linkage laws? What evidence is there to determine the role of “strong” and “weak” patents in producing outcomes, including unintended consequences that may have been completely unanticipated by law-makers at the time pharmaceutical law and policy came to the fore in the early 1980s and 1990s?

This will be the subject of Part 2 and Part 3 of the series.

The Waffle House index

2011-11-26T23:35:00.003-05:00

A string of bizarre Waffle House robberies has put the South's most familiar chain of 24-hour diners in the spotlight. Alongside grits, toast, and (yes) waffles, Waffle House does serve up a serious point about disaster law and disaster management.

With total seriousness, FEMA has coined the concept of a Waffle House index for measuring the impact of a disaster on a community:

If a Waffle House store is open and offering a full menu, the index is green. If it is open but serving from a limited menu, it’s yellow. When the location has been forced to close, the index is red. Because Waffle House is well-prepared for disasters … it’s rare for the index to hit red.

Waffle House therefore serves as an informal but readily assessed gauge of social susceptibility and resilience. Waffle House tends to be well-prepared for disaster. By extension, communities that host a Waffle House have at least one prominent actor taking account of catastrophic risk. And the presence of full service as usual at Waffle House signals the resilience with which that community has responded to disaster when it strikes. These are themes that permeate Disaster Law and Policy (2d ed.) and derivative works such as Law Among the Ruins.

Merger to Monopsony: AT&T, T-Mobile, and the Clayton Act

2011-11-23T08:07:00.005-05:00

In a pivotal antitrust decision, Judge Ellen Huvelle of the US District Court for the District of Columbia has allowed Sprint and Cellular South to pursue their suits to enjoin AT&T's proposed acquisition of T-Mobile. These suits pose a significant barrier to the merger of AT&T and T-Mobile. The ability of Sprint and Cellular South to pursue their claims represents a modest but important victory against the domination of the American wireless industry by an emerging AT&T/Verizon duopoly.

Sprint and Cellular South's lawsuits complement the United States government's suit to block the AT&T/T-Mobile merger. The Department of Justice's complaint emphasizes the traditional elements of a claim arising under section 7 of the Clayton Act. The government's case against the proposed union of the second and fourth largest wireless carriers in the United States draws heavily from the familiar arsenal of antitrust weapons against anticompetitive mergers. According to the Herfindahl-Hirschman index, the standard measure of industrial concentration, AT&T and T-Mobile would command the single largest share of the United States wireless market and an overwhelming share in many metropolitan markets. AT&T's acquisition of T-Mobile would eliminate potential competition and foreclose future entry by one of the country's peskiest and most creative wireless carriers.

Read the rest of this post . . . .In many merger cases, the contribution of antitrust law begins and ends in the United States Department of Justice. No matter how substantially a proposed merger may lessen competition or tend to create a monopoly, competitors of the combining firms face formidable barriers that often prevent them from suing under section 4 or section 16 of the Clayton Act. The antitrust injury doctrine requires competitors to prove that they have not merely sustained some economic loss, but have suffered injury of the sort that the antitrust laws were intended to prevent. The need to show antitrust injury sometimes forces competitors to allege that the merged firm would engage in predatory pricing, a theory of antitrust liability that can be difficult to prove.

Two recent Supreme Court decisions, Bell Atlantic v. Twombly (2007) and Verizon Communications v. Trinko (2004), raise additional obstacles to antitrust plaintiffs, especially in suits alleging anticompetitive conduct in the telecommunications industry. Twombly requires plaintiffs to plead facts with sufficient particularity so that a court can find it plausible, and not merely imaginable, that defendants violated the antitrust laws. Trinko holds that violations of the Telecommunications Act of 1996, strictly of their own force, do not constitute antitrust violations. Plaintiffs must prove conduct that offends the antitrust laws, independent of their lawfulness under the Telecommunications Act or the implementing regulations of the Federal Communications Commission (FCC).

The magnitude of these barriers to suit heightens the importance of Judge Huvelle's decision to allow Sprint and Cellular South to pursue their suits against AT&T's proposed acquisition of T-Mobile. Any antitrust suit in which competitor-plaintiffs successfully deflect a rule 12(b)(6) motion to dismiss represents a legally noteworthy development. An antitrust plaintiff that clears the Rule 12(b)(6) hurdle has shown antitrust injury and has satisfied both Twombly and Trinko. That plaintiff has pleaded facts that give rise to a plausible theory of antitrust liability beyond the violation of any applicable FCC regulations. That is exactly what happened in Sprint Nextel Corp v. AT&T Inc. and Cellular South, Inc. v. AT&T Inc. To fully appreciate Judge Huvelle's decision in these cases, we must first understand the economic and technological terms by which American wireless carriers compete.

Sprint and Cellular South's involvement in the AT&T/T-Mobile merger is important precisely because this controversy is no ordinary story of industrial concentration. The proposed creation of America's largest wireless carrier has economic significance transcending its $39 billion price tag. The private suits against AT&T's bid for T-Mobile mark a significant step in the development of antitrust law, especially as applied to an industry as technologically intense as wireless communications. In three decades, the American wireless industry has come a very long way from its origins in first-generation (1G) wireless technology and the breakup of the Bell system. 2G wireless technology enabled the first wave of data transmission. Even more significantly, the expansion of the 2G spectrum gave American consumers something they had not enjoyed in either wireline or wireless communications: meaningful choice from a broader spectrum of carriers competing on price and on service. The third generation of wireless technology brought mixed blessings. What consumers gained through faster speeds and enhanced services, they lost to creeping concentration as the country's leading carriers, Verizon and AT&T, increased their shares of the market. Technological incompatibility between the leading 3G protocols has allowed Verizon and AT&T as duopolists to operate their own wireless ecosystems, insulated from fiercer levels of competition that could and should prevail in this industry.

Many American consumers now treat their wireless devices as their primary or even exclusive vehicle for voice communications. It is no longer enough to speak of phones or even of "smartphones" that bridge the conventional gap between voice and data. Americans transmit an astonishing volume of information over wireless networks. The most sophisticated wireless devices and applications designed for those devices give consumers all sorts of intelligent ways to enjoy, create, transform and share content. Wireless devices and networks have liberated consumers from the geographic constraints inherent in legacy wireline technology. Consumers expect — and deserve — the ability to travel with complete confidence that they can call and be called, that they can navigate the World Wide Web and manipulate applications and content, with no perceptible reduction in the level of service they enjoy at home.

Against this backdrop, we can understand the true significance of Sprint and Cellular South's suits against the AT&T/T-Mobile merger. Increased concentration in any industry tends to amplify the power of the largest firms — especially a firm that would be created by a merger that has come under antitrust scrutiny — to gouge consumers by raising prices and lowering the quality of the product or service provided. But a conventional application of antitrust injury doctrine holds that the ordinarily expected increase in price inflicts no anticompetitive harm on competitors, as distinct from consumers. For this reason, the concentration and market share data so central to the government's case would not be enough, standing alone, to enable Sprint and Cellular South to block the AT&T/T-Mobile merger.

Sprint and Cellular South successfully alleged that AT&T's acquisition of T-Mobile would impair competing wireless carriers' access to critical inputs. By far the most important input in the American wireless market, today and for the foreseeable future, is access to the best wireless devices. Postpaid wireless subscribers — customers who subscribe to service for longer terms, as distinguished from pay-as-you-go prepaid customers — are less sensitive to price than they are to the availability of the best, most technologically sophisticated devices. Unlike their counterparts in many other developed countries, American wireless subscribers almost invariably buy their devices from wireless carriers. American carriers regularly subsidize device purchases by their postpaid subscribers, in exchange for a long-term service commitment. Even when consumers buy devices at department stores or electronics boutiques, those vendors usually operate in cooperation with a wireless carrier and bundle the devices with service contracts by that carrier. Empowered by the bundling of devices with service subscriptions, the largest carriers in the US have progressively tightened their grip over the market for wireless devices. Apple's iconic iPhone and iPad epitomize the problem. For years, AT&T held an exclusive on the iPhone; no other carriers' customers could buy this sleekest and smartest of handheld devices. You can buy an iPad at an Apple store, but the market for data service plans to feed that iPad offers exactly two choices: AT&T or Verizon.

In allowing Sprint and Cellular South to pursue their Clayton Act claim against the AT&T/T-Mobile merger, Judge Huvelle astutely recognized the oligopsonistic potential of the merged firm to further constrict an already tight market for cutting-edge wireless devices. AT&T and Verizon, the country's largest wireless carriers, use their buying power to command exclusive access to devices such as the iPhone. At the very least, these large carriers demand (and receive) long periods of exclusivity at the beginning of the economically and technologically significant life of new devices. The addition of T-Mobile to AT&T would exacerbate a serious and legally objectionable constraint on the ability of Cellular South, other small carriers, and even a carrier as large as Sprint (the country's third largest) to offer devices on par with AT&T and Verizon. Permitting this merger would compound these competitors' most pressing problem: being consigned to an unappetizing selection of older phones at higher prices. Judge Huvelle correctly characterized the problem as one of "merger-to-monopsony." Creating the country's largest wireless carrier would cement AT&T's unlawful grip over the devices that are driving and will continue to drive competition among wireless companies.

A second input also played a significant role in these competitor suits. Roaming is the only way that a smaller carrier such as Cellular South, especially one with a geographically circumscribed network, can assure its customers of coast-to-coast coverage. Without commercially reasonable roaming agreements, a smaller carrier cannot serve subscribers who travel outside their home service areas. Judge Huvelle recognized the potential of a combined AT&T and T-Mobile to inflict anticompetitive injury on Corr Wireless, a Cellular South subsidiary that has met stiff resistance in its efforts to forge roaming agreements on commercially reasonable terms with these larger carriers. This conclusion, in many respects, flows more naturally than the merger-to-monopsony theory by which Judge Huvelle recognized Sprint and Cellular South's allegations of injury in the device market. Antitrust cases more routinely involve anticompetitive conduct by defendants as sellers. Roaming agreements involve precisely that: would-be roaming partners sell access to each other's networks.

Judge Huvelle's decision did fall short in certain respects. She appears to have misunderstood the scope of competing carriers' need for roaming. 3G wireless technology is balkanized between Global System for Mobile Communications (GSM) and Code Division Multiple Access (CDMA) protocols. The incompatibility of GSM and CDMA technologies has forced carriers to choose between 3G protocols and to fashion their 3G roaming arrangements according to that choice. Sprint and Cellular South have operated 3G networks on the CDMA protocol. That choice has presumably led both of these carriers to seek 3G roaming agreements with Verizon, the country's leading CDMA carrier, as opposed to AT&T and T-Mobile, both of which have developed their 3G networks along the competing path of GSM technologies. Incompatibility in 3G networks, however, is of no moment when wireless carriers seek roaming on the Long-Term Evolution (LTE) protocol that represents the fourth generation of wireless technology. The proposed merger of AT&T and T-Mobile will enable this combined firm, to say nothing of Verizon, to obstruct 4G roaming in ways exceeding their existing refusal to cooperate with requests for roaming access to their legacy 3G networks.

On balance, however, Judge Huvelle's decision represents a very significant legal victory for competition in the American wireless industry. Preventing further concentration among wireless carriers preserves a competitive foothold by which Sprint, Cellular South, and other carriers can continue to offer consumers viable options beyond AT&T and Verizon. Nevertheless, domination of wireless communications by these two large carriers continues to pose serious economic threats. Notwithstanding their modest size, smaller carriers such as Cellular South have captured meaningful slices of the 700 megahertz "beachfront" spectrum that provides the best technological platform for deploying fully functional 4G/LTE networks. Properly managed, the transition between third- and fourth-generation wireless technologies promises to liberate American wireless communications, at long last, from the balkanization that has robbed 3G wireless of its full technological potential. The division between GSM and CDMA protocols has enabled AT&T and Verizon to keep cultivating a cozy duopoly in which two and exactly two dominant wireless carriers can lock their respective subscribers inside insulated wireless ecosystems. A wireless duopoly means that carriers outside the AT&T and Verizon ecosystems will have no access to cutting-edge devices, to say nothing of roaming, and will consequently be marginalized to the point of commercial extinction. The impact on all layers of the wireless industry, from radio access network equipment, chips and consumer devices to operating systems, applications and content, would be nothing short of devastating. Competition and consumer choice in wireless communications depend on full interoperability at all layers and evenhanded access to crucial inputs such as devices and roaming. Judge Huvelle's decision, though by no means the final battle in a war that has only begun, represents a significant victory for competition and consumer welfare in the broader market for wireless equipment, services and content.

Editor's note: This article first appeared on November 22, 2011, on Jurist Forum as Jim Chen, Merger to Monopsony: AT&T, T-Mobile, and the Clayton Act.

The author has provided advice to Cellular South in connection with its lawsuit to enjoin AT&T's proposed acquisition of T-Mobile. After filing suit against AT&T, Cellular South changed its name to C Spire Wireless. For the sake of clarity and consistency, the author has referred to this company throughout this article as Cellular South, the name under which it originally sued.

The Unexamined Life of the American Law School

2011-11-22T14:19:00.005-05:00

David Segal recently published an article in the New York Times entitled: "What They Don't Teach Law Students: Lawyering." It's a dreadful piece of journalism, but it raises an issue that law schools really should be thinking about much more seriously.

It would be tempting to entitle this comment, "What They Don't Teach Journalists: Reporting." The Segal article is really a shoddy piece of work. It has a couple of obvious factual errors (incorrectly stating the coverage of criminal procedure courses; referring to a paper by a philosopher in a philosophy journal as an example of a law review article.) It also engages in obvious cherry-picking -- finding articles with ridiculous-sounding titles in obscure law reviews rather than talking about recent issues of major law reviews, which probably would sounds more interesting and relevant to readers. Articles about topics such as originalism or Guantanamo may not be relevant to most practitioners, but newspaper readers might think they were a worthwhile use of time. And the ratio of editorializing to facts in the Siegel article is very high.

The article's view of legal practice also seems rather unintelligent. It assumes corporate law courses should be teaching students how to file paperwork, rather than trying to understand the economics of how transactions work and why corporate law imposes the requirements that it does on boards of directors or how courts review merger tactics. Segal complains that students aren't taught what papers to file for a merger. Why teach that in law school? It took me less than a minute to get the answer by googling "Delaware merger formalities."

As I say, it would be tempting to dismiss the article as an example of the decline of American journalism. But the article is right about one really important thing: law schools are extremely unreflective about what they are doing and about the needs of their students. We make little or no systematic effort to find out about what lawyers need to know to do their jobs or to think about how that may change over the next few decades. In fact, we don't do nearly as well in thinking about these things as the military -- for example, the Army commissioned a really interesting study by RAND about how to train officers for combat when future wars are likely to involve situations and tactics that we can't foresee today (such as the use of IEDs in Iraq).

Law schools could certainly benefit from a little self-evaluation. Our first-year curriculum focuses on common law subjects, even though we live in a statutory world. We teach criminal law courses that largely ignore both the drug crimes that are central to criminal practice and the biggest policy issues relating to criminal justice (racial disparties and sentencing). We make every student take civil procedure even though a minority will become civil litigators, and in any event the course teaches little about the two biggest tasks for civil litigators (managing discovery and negotiating settlements). And by the way, it's hard to get people to teach these courses because most faculty members find them profoundly uninteresting. Thus, we've managed to create a first-year curriculum that combines dubious practical utility, lack of policy salience, and theoretical banality. The main reason we do these things is that we have always done them, and it would be a lot of trouble to change.

I fully understand why no one wants to really think about these issues. It's a major struggle to add or subtract a single hour of credit from a first year course. No one -- certainly not me -- wants to devote endless hours to a quixotic effort in radical curriculum change. Ed Rubin's efforts at Vanderbilt are a salutary lesson in what happens when someone is brave enough to challenge the status quo. But it would be nice if we could at least start a serious discussion of these issues among ourselves.

Spending the Day "At Home"

2011-09-04T12:01:00.010-04:00

Since a lot of people are home for a few days because of the holidays, I thought I'd use the opportunity to put in a plug for Bill Bryson's book, At Home. The subtitle is "A Short History of Private Life," but it's really more a history of houses, their rooms, functions, and uses. It's full of fascinating information, such as how a professional gardener came to build the great Victorian Crystal Palace, why country homes in England are called "Halls" (because in Anglo-Saxon times even large houses were single rooms, and the whole things was called a hall), and why it's difficult to build safe staircases (because posture and movement are quite different for people going up and those going down). Not everyone will share this taste, but I think it's exciting to find out about the history of something when it never occurred to you before that it had actually had a history.

One point that Bryson makes is about the importance of the Victorian Era — say the time between Jackson and TR in American terms. At the beginning of this period, it was still true — as it had been in Roman times and even earlier — that the fastest way to move either goods or information was on a galloping horse. Medicine, sanitation, and architecture had also made little real progress since the fall of Rome (and at least in terms of sanitation things had gone backwards). But at the end of this period, people were traveling by train, communicating by telegraph and even phone, using anesthetics and antiseptics for surgery, using new materials such as iron, steel and glass for construction, replacing candles with electric lights, and using flush toilets and major urban sewage systems. Arguably, no single generation of humanity has ever seen such important transformations.

It's also remarkable to think of the scale of construction in the Victorian era: transcontinental railways, sewage systems, canals, bridges that still stand today, hundreds of major urban parks (with Central Park as the most famous example). We would be very hard-pressed to duplicate these feats today, as shown difficulties of building high-speed rail in the U.S. It is also quite noteworthy that so many of the great Victorian builders were essentially amateurs who came from very humble beginnings and somehow found themselves designing great houses and changing the English landscape. The modern world seems much more straitjacketed by comparison.

I suspect that we also underestimate the amount of legal change that took place to this period. Just as the "Victorian" became a synonym for "stuffy and old-fashioned" in the Twentieth Century, the legal rules that emerged from this period became the traditional common law against which reformers railed. But the Victorian period also saw the creation of whole new bodies of law (corporations, antitrust), major procedural reforms (from writs to code pleading), the origins of legal realism (with Holmes), the abolition of slavery, the invention of the modern American law school, and much more.

Privatizing Keynes: Using Game Theory to Fight the Recession

2011-08-22T21:18:00.007-04:00

According to neo-Keynesian economists, the problem with the economy is that people and businesses are hanging onto their money rather than spending it. There's a vicious cycle that needs to be broken: people aren't spending any money, because businesses are afraid to hire since demand is weak, so people either don't have jobs or are afraid of losing them, which leads them to spend less . . . The classic Keynesian solution is for the government to make up for the spending gap. But there's another, more private sector approach that could also work.

From this perspective, the recession is a collective action problem. Paul Krugman has a really nice parable about a babysitting coop in which everyone decides to babysit more to earn credits for future evenings out, but the result is that no one can get any credits because no one is going out, which the coop solves by issuing extra credits. If businesses could agree to hire, demand would be stimulated, and they would all be better off. But for any one business to act independently makes no sense since little of the increased demand from its own workers will be for its products. The problem is that solving the problem requires coordination.

Consider the following game. In step one, businesses make pledges to increase their workforce by an agreed amount, conditioned on a critical mass of other businesses doing the same. The pledges are not announced until the end of the commitment period. An equilibrium strategy is for everyone to pledge -- it costs nothing unless the critical mass is reached, but pays off in the form of increased sales otherwise. Moreover, if everyone else signs up, you're going to want to hire more people in order to deal with the increased demand. (Thus, this is a coordination game rather than a prisoner's dilemma). An added wrinkle, by the way, would be for the Fed to pledge to help finance all of this by buying corporate paper from companies that participate.

Once the pledges are made, what are the incentives to follow through with the hiring? One could be reputational. Firms that hire could advertise themselves as "Put America Back to Work" companies promised to hire but failed to do so would face unhappy consumers for their lack of patriotism. Another possible sanction is legal. There is some argument that the pledges are all made in consideration of each other, along the lines of the New York rules for charitable pledges established by Justice Cardozo.

This resembles some proposals that have recently been made by Joe Nocera and Marc Groz, but with some differences. They would make the commitment conditional on agreement by other firms in the same industry, which seems to me like an invitation to antitrust problems. Also, they are asking businesses to be public spirited whereas I'm focusing on the fact that a successful program will boost their sales.

This proposal is out in left field and implausible -- until the day it isn't. What makes it implausible is that it doesn't have enough credibility to be taken seriously, so it's not plausible for businesses to participate. But as soon as enough people take it seriously, then it becomes a live prospect because the likelihood of getting enough pledges becomes big enough to take seriously. (A bit like Tinker Bell, this proposal needs a critical mass of belief in order to be viable.)

How could this program get the credibility it needs to work? The President could put his weight behind it, or failing that, it could get some major employer like Walmart to back it. Neither is likely to happen until the idea has already begun to gain some public plausibility -- but that could happen from a bottom-up process, through social networks, blog posts, etc.

The classic remedies for recession make a lot of sense to me: increase the money supply and use government spending to stimulate the economy. But for political reasons if nothing else, those remedies are questionable now. So why not take the plunge and try something new?

Modern disaster theory

2011-08-16T07:39:00.005-04:00

The 2004 tsunami in Ao Nang, Krabi Province, Thailand

Newly posted on my SSRN page and forthcoming in the Emory International Law Review's disaster law symposium —

Jim Chen, Modern Disaster Theory: Evaluating Disaster Law as a Portfolio of Legal Rules, 26 Emory Int'l L. Rev. (forthcoming 2012) (available at http://ssrn.com/abstract=1910669):

Disaster law consists of a portfolio of legal rules for dealing with catastrophic risks. This essay takes preliminary steps toward modeling that metaphor in quantitative terms made familiar through modern portfolio theory. Modern disaster theory, by analogy to the foundational model of corporate finance, treats disaster law as the best portfolio of legal rules. Optimal legal preparedness for disaster consists of identifying, adopting, and maintaining that portfolio of rules at the frontier of efficient governance.

Part I of this essay defines disaster and disaster law. In an effort to develop an analytically rigorous basis for modeling and evaluating disaster law, Part II expounds the principles of modern portfolio theory, a framework for assessing financial returns according to risk. Part III outlines the principles of modern disaster theory as the legal analogue of modern portfolio theory as a branch of finance. Part IV conducts an exercise in applied modern disaster theory. It evaluates legal tools for compensating disaster victims ex post and spreading catastrophic risk ex ante according to the terms of modern disaster theory’s catastrophic preparedness asset model. Part V concludes that modern disaster theory, through the use of sophisticated quantitative methods analogous to those used in financial analysis, promises to place disaster law and policy at the efficient frontier of legal preparedness.

Update, August 18, 2011: Many thanks to Joshua P. Fershee for his comments on Modern Disaster Theory at the Business Law Prof Blog and to Lawrence B. Solum for featuring this article on Legal Theory Blog.

Time again to waste incumbents with wasted votes?

2011-07-26T17:31:00.001-04:00

Partisan bickering over the federal debt ceiling makes me nostalgic for this moment in American political history, which I witnessed as a resident of Minnesota and helped effect in 1998 as a voter disgusted with both major political parties:

Has the time come for a truly durable third party? Thomas Friedman speaks longingly of the prospect that we might yet witness the rise of the radical center. Nate Silver speculates that popular frustration with the two-party system may have reached a historically significant high-water mark:

A credible independent bid for the presidency is always a long-shot, but might be more viable under these conditions. Or we may simply see a genuine anti-incumbent wave — a much-discussed phenomenon that has rarely occurred in practice — with significant numbers of elected officials in both parties losing office. It is not out of the question that Democrats could lose the White House but take back control of the House of Representatives.

I have long wished that the United States could find a way to break free of its suffocating political duopoly. It's high time to get past first past the bloody post. There's no time like the present, or the 2012 elections, to waste incumbents with wasted votes.

The Fall of the House of Zeus

2011-07-08T13:15:00.003-04:00

Reprinted from The Cardinal Lawyer
Justice Bill Cunningham of the Kentucky Supreme Court takes a keen interest in legal education, especially in the ethical training of law students and lawyers. He writes to recommend a book, The Fall of the House of Zeus: The Rise and Ruin of America's Most Powerful Trial Lawyer:

I have just finished reading the book, The Fall of the House of Zeus [The Rise and Ruin of America's Most Powerful Trial Lawyer], by Curtis Wilkie. It is about the rise and fall of mega lawyer, Dickie Scruggs, of the famed asbestos-tobacco-Katrina lawsuits. The story dramatically relates how greed can transform erstwhile good people and fine people into criminals. If possible, I would make it required reading for every lawyer and law student in Kentucky.

Tilapia: The flip side of the perfect factory fish

2011-05-03T08:30:00.002-04:00

Tilapia is traditionally regarded as the fish in the biblical story of Jesus feeding a multitude of five thousand. The question is the price we pay for farmed tilapia as part of the contemporary food supply. It is fish, to be sure, but it doesn't offer the same nutritional value as species far richer in omega 3 fatty acids. Tilapia is also one of the world's most destructively invasive fish species. What makes tilapia so destructive is its rapid feeding and growth cycle and its adaptability to a wide variety of habitats. Those are also the perfect traits for a factory fish.

As global aquaculture in tilapia booms, the words of Danilo Sosa, a technician with Nicanor Fish Farms in Nicaragua, bear remembering: “Nature is for maintaining species; what we do is make fillets.”

An oyster for Passover

2011-04-19T18:56:00.002-04:00

I ordinarily do not make a habit of counseling others to violate the dietary laws of their religious traditions, but Paul Greenberg is putting an oyster on his Seder plate this Passover. His reasons for doing so are worth contemplating on the first anniversary of the BP Deepwater Horizon disaster.

Upcoming Symposium: The Role of States in Federal Health Care Reform

2011-01-13T15:38:00.007-05:00

I’m pleased to announce the Kansas Journal of Law & Public Policy’s 2010-2011 Symposium, exploring “The Role of States in Federal Health Reform.” The federal Patient Protection and Affordable Care Act (ACA), signed into law by President Obama on March 23, 2010, represents the most significant change to the United States’ health care system in a generation. The law also expands, to an unprecedented degree, the role of the federal government in health care. States traditionally had primary authority for regulating health care providers and insurers, and protecting health care consumers. Now, under ACA, states’ discretion to enact separate laws has been reduced, and their responsibility to implement federal law has been increased. That dynamic has generated a range of responses, including, most notably, several states’ lawsuits challenging ACA as an unconstitutional exercise of federal power.

The Symposium provides a unique, timely opportunity to explore these issues. ACA marks a critical juncture in our country’s history for both welfare policy and federal-state relations. The speakers, including national health law and federalism scholars as well as Kansas state government representatives will explore these tensions – digesting key provisions of the 900-page statute; explaining the pros and cons of federal, as opposed to state-based, health reform; and detailing Kansas’ particular response to the new federal laws.

Speakers and topics include:

Elizabeth Weeks Leonard, Professor of Law, University of Kansas, Welcome and Introductory Remarks

Jonathan Adler, Professor of Law, Case Western Reserve University School of Law, “Cooperation, Commandeering, or Crowding Out? Federal Intervention and State Choices in Health Care Policy”

Tim Greaney, Professor of Law, Saint Louis University School of Law, “Designing Health Insurance Exchanges to Promote Competition”

Mark Hall, Professor of Law, Wake Forest University School of Law, “The Role of Risk Adjustment under the Affordable Care Act”

Abigail Moncrieff, Associate Professor of Law, Boston University School of Law, “The Positive Case for Federal Health Care Regulation”

Sandy Praeger, Kansas Insurance Commissioner, “A View from the Insurance Commissioner on the Health Care Reform”

Dr. Andrew Allison, Executive Director, Kansas Health Policy Authority Board, “State Choices and Challenges in the Wake of Federal Health Reform Legislation”

Dr. Marcia Nielsen, Vice Chancellor for Public Policy and Planning, University of Kansas Medical Center, “Understanding Federal Health Reform: Setting the Stage for State Implementation”

The Symposium will conclude with a round table discussion with the speakers and participants. Kansas and Missouri CLE credits (7 hours) pending. There is no charge for attendance, but please register online here.

Disaster and its dimensions

2010-11-05T17:40:00.005-04:00

Herewith the video version of Disaster and Its Dimensions: Legal Responses to Distortions in Time and Space, the opening keynote address to the Twelfth Annual Northeast Florida Environmental Summit, held at the Florida Coastal School of Law:

I also invite you to watch the entire video proceedings of the conference:

Feminist agricultural law: A scholarly confessional

2010-03-13T15:24:00.002-05:00

Feminist agricultural law. It is an idea as compelling as it is timeless. On Agricultural Law, I offer some observations on agricultural legal feminism, from a scholarly confessional to incipient thoughts on an intellectual agenda.

Exotic game, lethal invaders

2010-03-11T02:06:00.000-05:00

The Florida Fish and Wildlife Conservation Commission has declared special hunting season on reptilian species of environmental concern: Burmese python, Indian python, reticulated python, northern and southern African rock python, amethystine or scrub python, green anaconda, and Nile monitor lizard. Hunters may take these species throughout state lands in southern Florida from March 8 through April 17, 2010.

The accompanying Miami Herald video portrays Bob Hill, who hunts pythons and other invasive reptiles in the Everglades for the South Florida Water Management District. The New York Times has hosted a forum on the use of hunting as one weapon against alien invasive species.

Editor's note: Cross-posted at Biolaw.

The agony and the sweat

2010-02-10T02:26:00.003-05:00

William Faulkner's speech upon his acceptance of the Nobel Prize for Literature, Stockholm City Hall, December 10, 1950 (audio via YouTube):

I feel that this award was not made to me as a man, but to my work — a life's work in the agony and sweat of the human spirit, not for glory and least of all for profit, but to create out of the materials of the human spirit something which did not exist before. So this award is only mine in trust. It will not be difficult to find a dedication for the money part of it commensurate with the purpose and significance of its origin. But I would like to do the same with the acclaim too, by using this moment as a pinnacle from which I might be listened to by the young men and women already dedicated to the same anguish and travail, among whom is already that one who will some day stand here where I am standing.

Our tragedy today is a general and universal physical fear so long sustained by now that we can even bear it. There are no longer problems of the spirit. There is only the question: When will I be blown up? Because of this, the young man or woman writing today has forgotten the problems of the human heart in conflict with itself which alone can make good writing because only that is worth writing about, worth the agony and the sweat.

He must learn them again. He must teach himself that the basest of all things is to be afraid; and, teaching himself that, forget it forever, leaving no room in his workshop for anything but the old verities and truths of the heart, the old universal truths lacking which any story is ephemeral and doomed — love and honor and pity and pride and compassion and sacrifice. Until he does so, he labors under a curse. He writes not of love but of lust, of defeats in which nobody loses anything of value, of victories without hope and, worst of all, without pity or compassion. His griefs grieve on no universal bones, leaving no scars. He writes not of the heart but of the glands.

Until he relearns these things, he will write as though he stood among and watched the end of man. I decline to accept the end of man. It is easy enough to say that man is immortal simply because he will endure: that when the last dingdong of doom has clanged and faded from the last worthless rock hanging tideless in the last red and dying evening, that even then there will still be one more sound: that of his puny inexhaustible voice, still talking. I refuse to accept this. I believe that man will not merely endure: he will prevail. He is immortal, not because he alone among creatures has an inexhaustible voice, but because he has a soul, a spirit capable of compassion and sacrifice and endurance. The poet's, the writer's, duty is to write about these things. It is his privilege to help man endure by lifting his heart, by reminding him of the courage and honor and hope and pride and compassion and pity and sacrifice which have been the glory of his past. The poet's voice need not merely be the record of man, it can be one of the props, the pillars to help him endure and prevail.

The rhetorical orgin of Sarah Palin's "death panel"

2009-08-10T23:20:00.002-04:00

Despite her July 26, 2009, resignation as governor of Alaska, Sarah Palin remains a formidable political force. She has shifted her primary written platform from Twitter to Facebook.

Sarah Palin's Facebook page has had an immediate and profound impact on national politics. Her Statement on the Current Health Care Debate notably handed opponents of health care reform a potent rhetorical weapon:

The Democrats promise that a government health care system will reduce the cost of health care, but . . . government health care will not reduce the cost; it will simply refuse to pay the cost. And who will suffer the most when they ration care? The sick, the elderly, and the disabled, of course. The America I know and love is not one in which my parents or my baby with Down Syndrome will have to stand in front of Obama’s “death panel” so his bureaucrats can decide, based on a subjective judgment of their “level of productivity in society,” whether they are worthy of health care. Such a system is downright evil.

Health care reform, whatever its virtues or drawbacks, will do no such thing. That at any rate is my belief; I side with those observers who believe that Palin's fictional "death panel" has grotesquely wounded political discourse on health policy. But my objective here is not political. I aim simply to trace the rhetorical origin of the term death panel.

In all of American law, exactly one phrase carries a resonance comparable to death panel. Its source is undoubtedly familiar to Sarah Palin: the Endangered Species Act Amendments of 1978, Pub. L. No. 95-632, 92 Stat. 375. In an effort to inject more flexibility into the act after TVA v. Hill, 437 U.S. 153 (1978), the 1978 amendments created the Endangered Species Committee and empowered it, upon a vote of no fewer than five of its seven members, to exempt a federal agency from section 7 of the original Endangered Species Act of 1973. These conditions must be met before the committee authorizes a section 7 exemption:

There must be no reasonable alternative to the agency's action.
The benefits of the action must outweigh the benefits of conserving the species.
The action is of regional or national importance.
Neither the federal agency or the exemption applicant made irreversible commitment to the resources.

Of course, no one calls the Endangered Species Committee by that name. Everyone calls it the God Squad. That name is apt, not because the committee possesses "collective wisdom but because the decisions it may render were once left to an even higher authority."

As governor of Alaska and as an avid, lifelong hunter, Sarah Palin has been quick to find fault with federal environmental law. She is no fan of aggressive enforcement of the Endangered Species Act. That statute's God Squad restores some of the anthropocentric "balance" that one might imagine Sarah Palin to favor. Strange though it may seem, this rarely invoked provision of the Endangered Species Act may well have triggered the poetic imagination of Sarah Palin. The "God Squad" appears to given her the rhetorical weapon by which to condemn the feared potential of health care reform to assume divine power over life and death.

Malaise in America again

2009-07-15T21:48:00.006-04:00

Thirty years ago, President Jimmy Carter delivered A Crisis of Confidence, better known as "The Malaise Speech." We stand again on a precipice of national decline, having frittered away three decades of opportunities to address energy dependency, environmental protection, and climate change. That "malaise" speech may not be so bound in time after all.

Jimmy Carter, A Crisis of Confidence (July 15, 1979) (transcript)

Click on the image of Jimmy Carter to read excerpts from A Crisis of Confidence:

Good evening. This a special night for me. Exactly three years ago, on July 15, 1976, I accepted the nomination of my party to run for President of the United States. I promised you a President who is not isolated from the people, who feels your pain, and who shares your dreams, and who draws his strength and his wisdom from you.

During the past three years I’ve spoken to you on many occasions about national concerns, the energy crisis, reorganizing the government, our nation’s economy, and issues of war and especially peace. But over those years the subjects of the speeches, the talks, and the press conferences have become increasingly narrow, focused more and more on what the isolated world of Washington thinks is important. Gradually, you’ve heard more and more about what the government thinks or what the government should be doing and less and less about our nation’s hopes, our dreams, and our vision of the future.

Ten days ago, I had planned to speak to you again about a very important subject — energy. For the fifth time I would have described the urgency of the problem and laid out a series of legislative recommendations to the Congress. But as I was preparing to speak, I began to ask myself the same question that I now know has been troubling many of you: Why have we not been able to get together as a nation to resolve our serious energy problem?

It’s clear that the true problems of our nation are much deeper — deeper than gasoline lines or energy shortages, deeper even than inflation or recession. . . .

[A]fter listening to the American people, I have been reminded again that all the legislation in the world can’t fix what’s wrong with America. So, I want to speak to you first tonight about a subject even more serious than energy or inflation. I want to talk to you right now about a fundamental threat to American democracy.

I do not mean our political and civil liberties. They will endure. And I do not refer to the outward strength of America, a nation that is at peace tonight everywhere in the world, with unmatched economic power and military might.

The threat is nearly invisible in ordinary ways.

It is a crisis of confidence.

It is a crisis that strikes at the very heart and soul and spirit of our national will. We can see this crisis in the growing doubt about the meaning of our own lives and in the loss of a unity of purpose for our nation.

The erosion of our confidence in the future is threatening to destroy the social and the political fabric of America.

The confidence that we have always had as a people is not simply some romantic dream or a proverb in a dusty book that we read just on the Fourth of July. It is the idea which founded our nation and has guided our development as a people. Confidence in the future has supported everything else — public institutions and private enterprise, our own families, and the very Constitution of the United States. Confidence has defined our course and has served as a link between generations. We’ve always believed in something called progress. We’ve always had a faith that the days of our children would be better than our own.

Our people are losing that faith, not only in government itself but in the ability as citizens to serve as the ultimate rulers and shapers of our democracy. As a people we know our past and we are proud of it. Our progress has been part of the living history of America, even the world. We always believed that we were part of a great movement of humanity itself called democracy, involved in the search for freedom; and that belief has always strengthened us in our purpose. But just as we are losing our confidence in the future, we are also beginning to close the door on our past.

In a nation that was proud of hard work, strong families, close-knit communities, and our faith in God, too many of us now tend to worship self-indulgence and consumption. Human identity is no longer defined by what one does, but by what one owns. But we’ve discovered that owning things and consuming things does not satisfy our longing for meaning. We’ve learned that piling up material goods cannot fill the emptiness of lives which have no confidence or purpose.

The symptoms of this crisis of the American spirit are all around us. For the first time in the history of our country a majority of our people believe that the next five years will be worse than the past five years. Two-thirds of our people do not even vote. The productivity of American workers is actually dropping, and the willingness of Americans to save for the future has fallen below that of all other people in the Western world.

As you know, there is a growing disrespect for government and for churches and for schools, the news media, and other institutions. This is not a message of happiness or reassurance, but it is the truth and it is a warning.

These changes did not happen overnight. They’ve come upon us gradually over the last generation, years that were filled with shocks and tragedy. . . .

Looking for a way out of this crisis, our people have turned to the Federal Government and found it isolated from the mainstream of our nation’s life. Washington, D.C., has become an island. The gap between our citizens and our government has never been so wide. The people are looking for honest answers, not easy answers; clear leadership, not false claims and evasiveness and politics as usual.

What you see too often in Washington and elsewhere around the country is a system of government that seems incapable of action. You see a Congress twisted and pulled in every direction by hundreds of well-financed and powerful special interests.

You see every extreme position defended to the last vote, almost to the last breath by one unyielding group or another. You often see a balanced and a fair approach that demands sacrifice, a little sacrifice from everyone, abandoned like an orphan without support and without friends.

Often you see paralysis and stagnation and drift. You don’t like it, and neither do I. What can we do?

First of all, we must face the truth, and then we can change our course. We simply must have faith in each other, faith in our ability to govern ourselves, and faith in the future of this nation. Restoring that faith and that confidence to America is now the most important task we face. It is a true challenge of this generation of Americans. . . .

We know the strength of America. We are strong. We can regain our unity. We can regain our confidence. We are the heirs of generations who survived threats much more powerful and awesome than those that challenge us now. Our fathers and mothers were strong men and women who shaped a new society during the Great Depression, who fought world wars and who carved out a new charter of peace for the world. . . .

We are at a turning point in our history. There are two paths to choose. One is a path I’ve warned about tonight, the path that leads to fragmentation and self-interest. Down that road lies a mistaken idea of freedom, the right to grasp for ourselves some advantage over others. That path would be one of constant conflict between narrow interests ending in chaos and immobility. It is a certain route to failure.

All the traditions of our past, all the lessons of our heritage, all the promises of our future point to another path — the path of common purpose and the restoration of American values. That path leads to true freedom for our nation and ourselves. We can take the first steps down that path as we begin to solve our energy problem.

Energy will be the immediate test of our ability to unite this nation, and it can also be the standard around which we rally. On the battlefield of energy we can win for our nation a new confidence, and we can seize control again of our common destiny. . . .

The energy crisis is real. It is worldwide. It is a clear and present danger to our nation. These are facts and we simply must face them.

What I have to say to you now about energy is simple and vitally important.

Point one: I am tonight setting a clear goal for the energy policy of the United States. Beginning this moment, this nation will never use more foreign oil than we did in 1977 — never. From now on, every new addition to our demand for energy will be met from our own production and our own conservation. The generation-long growth in our dependence on foreign oil will be stopped dead in its tracks right now and then reversed as we move through the 1980s, for I am tonight setting the further goal of cutting our dependence on foreign oil by one-half by the end of the next decade — a saving of over four and a half million barrels of imported oil per day.

Point two: To ensure that we meet these targets, I will use my presidential authority to set import quotas. I’m announcing tonight that for 1979 and 1980, I will forbid the entry into this country of one drop of foreign oil more than these goals allow. These quotas will ensure a reduction in imports even below the ambitious levels we set at the recent Tokyo summit.

Point three: To give us energy security, I am asking for the most massive peacetime commitment of funds and resources in our nation’s history to develop America’s own alternative sources of fuel — from coal, from oil shale, from plant products for gasohol, from unconventional gas, from the sun.

I propose the creation of an energy security corporation to lead this effort to replace two and a half million barrels of imported oil per day by 1990. The corporation will issue up to five billion dollars in energy bonds, and I especially want them to be in small denominations so average Americans can invest directly in America’s energy security.

Just as a similar synthetic rubber corporation helped us win World War II, so will we mobilize American determination and ability to win the energy war. Moreover, I will soon submit legislation to Congress calling for the creation of this nation’s first solar bank which will help us achieve the crucial goal of twenty percent of our energy coming from solar power by the year 2000.

These efforts will cost money, a lot of money, and that is why Congress must enact the windfall profits tax without delay. It will be money well spent. Unlike the billions of dollars that we ship to foreign countries to pay for foreign oil, these funds will be paid by Americans, to Americans. These will go to fight, not to increase, inflation and unemployment.

Point four: I’m asking Congress to mandate, to require as a matter of law, that our nation’s utility companies cut their massive use of oil by fifty percent within the next decade and switch to other fuels, especially coal, our most abundant energy source.

Point five: To make absolutely certain that nothing stands in the way of achieving these goals, I will urge Congress to create an energy mobilization board which, like the War Production Board in World War II, will have the responsibility and authority to cut through the red tape, the delays, and the endless roadblocks to completing key energy projects.

We will protect our environment. But when this nation critically needs a refinery or a pipeline, we will build it.

Point six: I’m proposing a bold conservation program to involve every state, county, and city and every average American in our energy battle. This effort will permit you to build conservation into your homes and your lives at a cost you can afford.

I ask Congress to give me authority for mandatory conservation and for standby gasoline rationing. To further conserve energy, I’m proposing tonight an extra ten billion dollars over the next decade to strengthen our public transportation systems. And I’m asking you for your good and for your nation’s security to take no unnecessary trips, to use carpools or public transportation whenever you can, to park your car one extra day per week, to obey the speed limit, and to set your thermostats to save fuel. Every act of energy conservation like this is more than just common sense, I tell you it is an act of patriotism.

Our nation must be fair to the poorest among us, so we will increase aid to needy Americans to cope with rising energy prices. We often think of conservation only in terms of sacrifice. In fact, it is the most painless and immediate ways of rebuilding our nation’s strength. Every gallon of oil each one of us saves is a new form of production. It gives us more freedom, more confidence, that much more control over our own lives.

So, the solution of our energy crisis can also help us to conquer the crisis of the spirit in our country. It can rekindle our sense of unity, our confidence in the future, and give our nation and all of us individually a new sense of purpose. . . .

I do not promise you that this struggle for freedom will be easy. I do not promise a quick way out of our nation’s problems, when the truth is that the only way out is an all-out effort. What I do promise you is that I will lead our fight, and I will enforce fairness in our struggle, and I will ensure honesty. And above all, I will act.

We can manage the short-term shortages more effectively, and we will; but there are no short-term solutions to our long-range problems. There is simply no way to avoid sacrifice. . . .

Little by little we can and we must rebuild our confidence. We can spend until we empty our treasuries, and we may summon all the wonders of science. But we can succeed only if we tap our greatest resources — America’s people, America’s values, and America’s confidence.

I have seen the strength of America in the inexhaustible resources of our people. In the days to come, let us renew that strength in the struggle for an energy-secure nation.

In closing, let me say this: I will do my best, but I will not do it alone. Let your voice be heard. Whenever you have a chance, say something good about our country. With God’s help and for the sake of our nation, it is time for us to join hands in America. Let us commit ourselves together to a rebirth of the American spirit. Working together with our common faith we cannot fail.

Thank you and good night.

In Defense of Law School--A Response to Lippe

2009-07-10T10:13:00.003-04:00

There has been plenty of buzz on legal blogs lately in response to Paul Lippe's AmLaw blog post laying out the case against the prevailing law school pedagogical model, in particular the status and role of the law faculty. There is no question that there is room for improvement in the American law school model, as there is in every educational model. Bill Henderson at Indiana University Law School, in a post on the Legal Profession Blog, makes a good case that Lippe's post deserves attention and that if times are changing for lawyers' clients, they are going to change for lawyers as well, meaning law schools must be attentive to the needs of our students to be able to succeed in a transformed professional environment. Nevertheless, let us not get so carried away in laying the blame on law schools as Lippe does.

Before I go further, a few disclosures. First, I am a law professor, a tenured one at that. I have been tenured at a rural public law school and at a public law school in the state capital of a major state, and I have visited at private "top 25" law schools. I've seen the spectrum of legal education. Second, I also practiced law for longer than most law professors prior to entering teaching--12 years with a very large law firm, the last four as a partner. I was in charge of hiring for one of the firm's offices for two years. I know what the practice of law is about, and I know what to expect at the entry level hiring stage. The upshot is that I do value the value of ensuring that law schools prepare graduates for entry into the profession, but I also equally value how important it is not to reduce the law school experience to that of a trade school. Now back to Lippe's ditty.

In short, although there is some truth in the basic theme of Lippe's assessment of the role of law schools and what they deliver, which I will get into later, how he arrives there is thoroughly off base. Here's why:

1. Lippe repeatedly suggests that medical and business schools have got it right and law schools provide "inferior training." Oh really? So, when our nation is in the throes of a debate over the runaway costs of health care and the global economy is in a massive recession due largely to the utter largess and indulgence of our big business and investment industries, law schools should emulate medical and business schools? I think not. Rather, I suggest that medical and business schools are right up there with, if not ahead of, law schools in the need to examine their pedagogical models. In any event, it is not useful to compare medical, business, and law school models--they are three vastly different professions with distinct subject matters and professional pathways.

2. Lippe goes further, arguing that "law schools will have to produce fully functioning lawyers who can quickly become economically viable--not just proto appellate clerks." Just like medical and business schools do, right? Wrong. Medical schools do not produce "fully functioning physicians" and business schools do not produce "fully functioning corporate executives." Medical residencies and corporate ladders are the next training grounds for graduates of those professional schools. Indeed, Lippe identifies a root problem with legal profession--that "firms' appetite for subsidizing training will decline." It already has declined, because the "law as a business" model of elite law firms, which replaced "law as a profession" in the 1980s, has squeezed out everything but the billable hour from the life of associates. With a few notable and noble exceptions, BigLaw law firms want more and more to be able to charge new associates' billable hours they can justify to clients, but want less and less to bear the cost of getting the new lawyers "fully functional." Most of the discontent Lippe identifies seems to come from practitioners locked in this "law as business" model, whether in elite law firms or large corporate departments. It may be time for them to reexamine their commitment to training young lawyers, as well as to law as a profession.

3. Nowhere, for that matter, does Lippe define what a "fully functional lawyer" is. What does Lippe expect law schools to produce? Is it a lawyer equipped out of the box to argue a case in the U.S. Supreme Court? To take the deposition of a Fortune 50 CEO? To negotiate the terms of a major corporate acquisition? Of course not. Consider that most first year law students come to law school with little or no knowledge of the legal institutions of our nation beyond the basic civics class level. Lippe argues that the "time to [lawyers'] professional independence is longer [than physicians']. This is not because law is more complex or riskier than medicine, but because legal training is inferior." Well, at least he concedes law is complex and risky. But is it fair to say that I wouldn't want a newly-minted lawyer arguing a bet the company lawsuit for me because his or her training was inferior? No. The reason why is because I want someone who has argued hundreds of other less high stakes cases before taking on my high stakes case, and that simply takes time on the job. There is no way in three years of law school to get someone into that position. What we can and should do, of course, is strive to get our graduates into a position to become such a lawyer.

4. Part of the problem with Lippe's pitch in this respect is that he talks about law schools preparing graduates for the "legal profession" as if the legal profession consists exclusively of private law firms and corporate counsel offices, where, if I understand him correctly, the theory and policy of law are irrelevant. I'm not sure what Lippe believes goes on in law firms, but I know from my practice days that lawyers at law firms with sophisticated clients are often asked to think outside the box, to propose changes to legislation or regulations, to make novel arguments in court, and to suggest cutting edge legal strategies. Moreover, the legal profession extends far beyond law firms and in-house counsel offices. Lawyers working for public entities and non-governmental organizations are even more likely to be asked to "invent" law for the future. Lippe believes legal education should be reduced to "no more than a year of case method, a year of clinical, and then a year of externship with subject area focus, along the lines of medical school." What happened to thinking about what the law should be, rather than just what it is?

5. Lippe's central objection with law school faculties is that they "have grown more distant from the profession, and the legal academy has come to define itself as primarily engaged in a scholarly pursuit (like, say, literature or history), as opposed to a professional pursuit, like, say, medicine or business." But if one believes there is any value to ensuring that law students learn to think about the "ought" and not just the "is" of law, there has to be an emphasis on the part of the faculty to exploring the "ought" in order to be able competently to teach their students how to do so. Law is inherently a normative enterprise within society. True enough, practitioners must learn the mechanics and basic content of law, and for that purpose law schools must maintain a strong emphasis on practice training, but practitioners--good ones--are not simply automatons applying black letter law to uncontested facts. The law is often murky, or just plain bad, and facts are often incomplete and contested. Thinking about what ought to happen in such contexts is an important facet of legal education I fear Lippe's model would stifle into oblivion. In any event, Lippe's suggestion that law faculty scholarship is devoid of practical focus and content suggests that he has not read much of it.

6. Along with his claim that law schools have "have grown more distant from the profession," Lippe goes so far as to claim that law professors hold law firms "in low regard." One solution he proposes is to use "more adjunct faculty who are active practitioners." Has he examined the course offerings at any law schools lately? He's welcome to check out ours at Florida State University, which includes a plethora of practical and skills oriented courses, many taught by our faculty members. I teach, for example, courses on Land Use Regulation, Growth Management, and Environmental Issues in Business Transactions. Hardly "distant from the professsion" or the sign of holding law firms "in low regard." Like many law schools, moreover, we offer numerous courses taught by adjuncts who are leading practitioners and our faculty members routinely invite practitioners from all types of practice settings to guest lecture, speak at forums, and mentor our students. Many of our faculty members, like those at most law schools, actively participate in local, state, and national legal professional associations such as the American Bar Association and state bar associations--writing for their journals, speaking at conferences, and chairing committees. Lippe is working off a mistaken straw man of what goes on inside most law schools and inside the heads of their faculty members.

I could go on with what is misinformed and off the mark with Lippe's assessment of legal education, but I should give him some credit for identifying the need to respond to the changing landscape of the legal profession (within which I include more than BigLaw and Fortune 50 in-house counsel offices). We must get control of the cost of legal education--it is pricing people of modest means out of the profession and making it near impossible for new law grads to enter public service. We must deliver the skill set that will enable our grads to enter the path to becoming a "fully functional lawyer," a path that is clearly changing at their feet. And we must continue to ensure that law school is about the law student, not the law faculty. My problem isn't with those ideals, it's with how Lippe articulates them and the solutions he offers. Less emphasis on teaching appellate common law decisions and more emphasis on clinical experiences are both part of the mix for legal education reform, but the trade school mentality that permeates Lippe's vision of legal education would be a giant step into backwardness and the last nail in the coffin of law as a profession.

JBR

Governor Mark Sanford faces the music

2009-06-24T18:15:00.002-04:00

In a genuinely remarkable piece of American political theater, Governor Mark Sanford of South Carolina admitted that he had not in fact taken a hike on the Appalachian Trail during a five-day absence, but rather conducted an extramarital affair in Argentina. Extensive news coverage abounds, among other places, in The State (Columbia, S.C.), The Washington Post, and The New York Times.

Even more remarkably, Mark Sanford has a theme song. With very few modifications, the lyrics from "Don't Cry for Me Argentina," the climactic song from the Andrew Lloyd Webber/Tim Rice musical, Evita, come very close to describing Governor Sanford's story:

It won't be easy, you'll think it strange
When I try to explain how I feel
that I still need your love after all that I've done

You won't believe me
All you will see is a guv you once knew
Although he's dressed up to the nines
At sixes and sevens with you

I had to let it happen, I had to change
Couldn't stay all my life down at heel
Looking out of the window, staying out of the sun

So I chose freedom
Running around, trying everything new
But nothing impressed me at all
I never expected it to

Chorus:
Don't cry for me Carolina
The truth is I never left you
All through my wild days
My mad existence
I kept my promise
Don't keep your distance

And as for fortune, and as for fame
I never invited them in
Though it seemed to the world they were all I desired

They are illusions
They are not the solutions they promised to be
The answer was here all the time
I love you and hope you love me

Don't cry for me Carolina

Repeat chorus

Have I said too much?
There's nothing more I can think of to say to you.
But all you have to do is look at me to know
That every word is true