Law Commons^™

Defendant Silence And Rhetorical Stasis, Stephen E. Smith

Faculty Publications

Silence disrupts the classic arrangement of argumentation by preventing the traditional narrowing of issues—i.e., the identification of points of stasis. This burdens the side against which silence is deployed. When the defendant invokes the right to silence, the prosecution must address every possible defense. In those rare instances where a defendant’s silence may be raised by the prosecution, the defendant may be put in a position of concession on multiple fronts. In either case, the economy of argument anticipated by classical rhetoric is lost.

Informational Hearing On Patent Assertion Entities, Brian Love

Faculty Publications

Testimony before the California Assembly Select Committee on High Technology

Simultaneous Catches And Infield Flies: Legal Writing Techniques In Sportswriting, John Schunk

Faculty Publications

No abstract provided.

Patients’ Online Reviews Of Physicians, Eric Goldman

Faculty Publications

This short essay explores how doctors and other healthcare professionals have responded to patient reviews of their services and addresses how they should deal with patient reviews in the future.

Santa Clara Law Best Practices In Patent Litigation Survey, Colleen Chien, Nicole Shanahan, Daniel Dobkin, Wesley Helmholz, Coryn Millslagle, Christopher Patrick Tosetti

Faculty Publications

Over the past few years, Congress, appellate, and district courts have made significant strides to improve patent law and litigation practice. Congress is now considering making more changes, to supplement ongoing tailoring by the courts. Dialog between the patent bench, patent bar, and lawmakers is crucial for informing these efforts. To support this dialog, we developed, in consultation with judges and company lawyers in spring of 2013, a list of questions to probe the experiences, opinions, and suggestions of lawyers. We asked survey takers to rate, on a range from ineffective to very effective, certain existing and proposed practices and …

Patent Assertion And Startup Innovation, Colleen Chien

Faculty Publications

This report, supported by funding from the New America Foundation, details the experiences of startups with patent assertion based on surveys of about 300 venture capitalists and venture-backed startups conducted in 2013. According to survey responses, patents for novel inventions play a generally positive and at times crucial role for startups. They help to transfer technology, enable investment, and improve exits, particularly in bio/pharma industries. But patent assertions by NPEs, which at times hit startups when they are least able to fight them — on the eve of a funding or acquisition event, or, 40% of the time, in the …

Patent Assertion And Startup Innovation, Colleen Chien

Faculty Publications

Lawmakers are contemplating making changes to patent law and procedure to curb abusive litigation and demand practices. One of the most important constituents for them to keep in mind is small, innovative companies. The impact of the patent system on startups, and in particular high-tech startups, is crucial because they are a key source of new jobs and innovation. According to Engine and the Kau!man Foundation, “Though they start lean, new high-tech companies grow rapidly in the early years, adding thousands of jobs along the way.”

Startups also have a unique perspective on patent assertion, with the potential to be …

When Does Freedom Of Speech Trump Celebrity Publicity Rights?, Tyler T. Ochoa

Faculty Publications

The use of college athletes’ likenesses in sports simulation videogames, such as Electronic Arts’ NCAA Football series, has spawned a number of lawsuits alleging that such use violates the athletes’ rights of publicity. (These actions have been brought by retired college athletes, as the NCAA prohibits college athletes from commercially exploiting their rights of publicity while in college, as a condition of maintaining their “amateur” status.) Two federal Courts of Appeals have now held 2-1 that the First Amendment does not protect Electronic Arts’ depiction of actual college players, so that EA may be held liable under state right of …

Why Technology Customers Are Being Sued En Masse For Patent Infringement & What Can Be Done, Colleen Chien, Edward Reines

Faculty Publications

Last year, the Children’s Hospital of Philadelphia and the AIDS Healthcare Foundation were accused of patent infringement. Their alleged wrongdoing? Purchasing routers and using them to provide wireless services. A small Atlanta-based company called Bluewave, along with hundreds to thousands of small businesses, received demands for royalties for alleged patent infringement. The accusation? Using an off-the-shelf PDF machine. As incredible as they might seem, these mass patent assertions and the harm they cause are real – six out of the top ten patent litigation campaigns have exclusively named technology customers, not suppliers. This has drawn attention from state attorneys generals, …

'Holding Up' And 'Holding Out', Colleen Chien

Faculty Publications

Patent “hold-up” and patent “hold-out” present important, alternative theories for what ails the patent system. Patent “hold-up” occurs when a patent owner sues a company when it’s most vulnerable – after it has implemented a technology – and is able wrest a settlement because it’s too late for the company to change course. Patent “hold-out” is a term I use to describe the practice of companies routinely ignoring patents and resisting patent owner demands, because the odds of getting caught are small. Hold-up has arguably predicted the current patent crises – the smartphone wars, standards patents, or trolls all involve …

Cbit 2.0 -- Executive Summary, David M. Hasen

Faculty Publications

This short paper provides a summary of a Special Report on a modified version of the comprehensive business income tax, or CBIT, scheduled to appear in Tax Notes on August 26, 2013. The Special Report advocates adoption of a CBIT similar to the one Treasury proposed in 1992. The main difference is the proposed addition of a tax on distributions to high-bracket taxpayers, together with the availability of a deduction against the distribution tax for amounts promptly reinvested. The net effect is consumption tax treatment of the tax, if any, on distributions.

The Implications Of Excluding State Crimes From 47 U.S.C. §230’S Immunity, Eric Goldman

Faculty Publications

In June 2013, the State Attorneys General signaled their intent to ask Congress to amend 47 U.S.C. 230, the federal law that says websites aren't liable for third party content. The State AGs want to exclude state criminal prosecutions from the immunity. This essay explains the problems such an amendment would create for the Internet user-generated content community.

An Introduction To California's Greenhouse Gas Emission Trading Program, Tseming Yang

Faculty Publications

Even though climate change will require a global solution, the efforts of individual nations and sub-national governmental units have become increasingly important for demonstrating leadership in creating effective regulatory programs and possible solutions. California’s Global Warming Solutions Act of 2006, also referred to as A.B. 32, and the associated greenhouse gas emission trading program are one set of such efforts. With A.B. 32, the state of California has created one of the most comprehensive and complex climate change programs in the world – a legally binding set of mandates for the state government to reduce greenhouse gas (GHG) emissions to …

Corporate Aid To Governmental Authority: History And Analysis Of An Obscure Power In Delaware Corporate Law, David Yosifon

Faculty Publications

The Delaware General Corporation Law contains an obscure provision stating that all corporations have the power to “[t]ransact any lawful business which the corporation’s board of directors shall find to be in aid of governmental authority.” 8 DGCL §122(12). This oddly worded provision has never been applied, analyzed, or interpreted by any court. It has received almost no treatment by corporate law scholars. This lack of attention is surprising, given that by its own terms the provision seems to bear on fundamental corporate law themes, such as the purpose of corporations, the scope of directors’ fiduciary obligations and discretion, and …

Make The Patent 'Polluters' Pay: Using Pigovian Fees To Curb Patent Abuse, Brian Love, James E. Bessen

Faculty Publications

Inspired by a groundswell of public outrage against a recent spate of egregious patent enforcement targeting small businesses, five patent reform bills have been proposed in the last four months. All five aim to curb nuisance-value patent litigation, a phenomenon popularly referred to as “patent trolling,” by reducing the cost of defending these suits. In this essay, we argue that these bills, while admirable, treat the symptoms of our patent system’s ills, rather than the disease itself: a growing glut of unused high-tech patents that have little practical value apart from use as vehicles for nuisance-value litigation. Accordingly, we urge …

Top 10 Tips For A Newly Tenured Professor, Eric Goldman

Faculty Publications

Prospective and junior professors can find lots of advice in blogs about key milestones in a junior professor’s life cycle: how to get the first academic job, how to lateral from one institution to another, and how to get tenure.

In contrast, tenured professors don’t get a lot of guidance about what do with the rest of their career. It’s tempting to assume that if you’re good enough to get tenure, you’ll know what to do with it. However, it turns out my pre-tenure experiences hadn’t fully prepared me for what I encountered post-tenure. Based on my experiences, I prepared …

The Relationship Between Domestic And International Environmental Law, Tseming Yang

Faculty Publications

The connections between domestic and international law have proliferated in the last few decades as a directed result of the explosive growth of environmental treaties and other developments. Yet, most U.S. environmental lawyers remain relatively unaware even though these connections are increasingly affecting the practice of environmental law itself. Other parts of the book provide background on the specific substantive content of global environmental laws, both international as well as the environmental law systems of other countries. This chapter will address the relationship between the international and the domestic system, primarily the US. It will address three related question: 1) …

The Top 10 Trends In International Environmental Law, Tseming Yang

Faculty Publications

This chapter reviews the top trends in international environmental law, including climate change, globalization of environmental law, sustainable development, the rise of the developing world, environmental institutions and governance, human rights and the environment, the environment and international economic law, biodiversity, chemicals and hazardous substances management, and the oceans and fisheries.

Two Truths And A Lie: Stories At The Juncture Of Teen Sex And The Law, Michelle Oberman

Faculty Publications

Laws governing adolescent sexuality are incoherent and chaotically enforced, and legal scholarship on the subject neither addresses nor remedies adolescents’ vulnerability in sexual encounters. To posit a meaningful relationship between the criminal law and adolescent sexual encounters, one must examine what we know about adolescent sexuality from both the academic literature and the adults who control the criminal justice response to such interactions. This article presents an in-depth study of In re John Z., a 2003 rape prosecution involving two seventeen-year-olds. Using this case, I explore the implications of the prosecution by interviewing a variety of experts and analyzing the …

Expanding Patent Law's Customer Suit Exception, Brian J. Love, James C. Yoon

Faculty Publications

Recent years have seen a marked increase in patent suits filed primarily for nuisance value. Non-practicing patent holders like Innovatio, Lodsys, PACid, and many others have collectively sued thousands of alleged patent infringers in cases that generally settle for less than the cost of mounting even the slightest defense. Suits like these overwhelming target the numerous resellers and end users of allegedly infringing products, rather than the accused products’ original manufacturer. More individual defendants means more lawyers, more discovery, and, thus, more litigation costs to inflate settlement amounts. With legislative reform unlikely at present, doctrinal solutions to this problem are …

Patent Trolls By The Numbers, Colleen Chien

Faculty Publications

Following President’s Obama remarks and reintroduction of the SHIELD Act, Congress is holding hearings on patent trolls (aka patent assertion entities or PAEs) on March 14, 2013. One question concerns the prevalence of patent troll demands and other troll metrics, on which I have previously reported. These statistics draw heavily upon proprietary research as well as my own analyses, so, in the interest of full disclosure, this blog post lays out the numbers as I see them, and what I know about them:

• PAEs brought 62% of 2012 patent litigations
• In 2012, PAEs sued more non-tech companies than tech companies …

Overcharging, Kyle Graham

Faculty Publications

The prosecutors in several recent high-profile criminal cases have been accused of “overcharging” their quarry. These complaints have implied — and sometimes expressly asserted — that by “overcharging,” the prosecutors engaged in socially undesirable, illegitimate, and even corrupt behavior. United States Supreme Court Justice Antonin Scalia also weighed in on the “overcharging” phenomenon not long ago, describing this practice as a predictable though regrettable aspect of modern plea bargaining.

Unfortunately, many of these commentators either have failed to explain precisely what they meant by “overcharging,” or have used the same word to describe different types of charging practices. The various …

Does The Us Patent System Need A Patent Small Claims Proceeding?, Colleen Chien, Michael J. Guo

Faculty Publications

Patent litigation is expensive. The primary motivation for the creation of a patent small claims proceeding is to make enforcement more affordable. However, in the twenty or so years since the American Intellectual Property Law Association (AIPLA) first endorsed the idea of a small claims patent court through Resolution 401‐4, the patent litigation landscape has drastically changed. Although patent litigation costs are still high, the equities have shifted. The marketplace for patents has developed, providing more options than previously existed to monetize and assert patents. However, the cost of patent defense has not gone down, and small companies cannot afford …

Software Patents & Functional Claiming, Colleen Chien, Aashish Karkhanis

Faculty Publications

On Feb 12, 2013, the PTO held a roundtable about software patents at Stanford. Software patents have received a lot of attention and we don't believe it is undue: software patents are behind a disproportionate share of patent litigations -- more specifically, over half (55%) of all patent defendants and 82% of PAE ("patent troll") defendants are there because of a software patent, applying the Graham-Vishnubhakat definition to data provided by RPX Corporation. In this presentation, we more rigorously apply 35 USC 112(f) in accordance with the proposal Mark Lemley outlines in his WIRED oped "Let's Go Back to Claiming …

10 Things The Pto Can Do To Enhance Context-Based Patent Disclosure, Colleen Chien

Faculty Publications

The PTO held a roundtable and solicited comments on a proposal to require Real-Party-in-Interest disclosures in patents. Through this comment, which I submitted to the PTO, I support their efforts to elicit and disseminate ownership data by 1) explaining why ownership information, and context-information in particular, is so important to the core functions of the patent system of technology transfer and technology commercialization; 2) commending and suggesting several steps the PTO could take/continue to take to improve the quality, quantity, and dissemination of ownership information; and 3) providing an Appendix that summarizes each of the 17 comments that the PTO …

The Future Of The American Law School Or, How The 'Crits' Led Brian Tamanaha Astray And His Failing Law Schools Fails, Stephen F. Diamond

Faculty Publications

Debate over the impact of the economic crisis on the future of the American law school has reached an exceptional level of intensity. Brian Tamanaha’s short book, Failing Law Schools, serves as the manifesto for those who believe the law school must undergo radical restructuring and cost cutting. While there is room for disagreement with almost all aspects of the reform argument no critic of Tamanaha has attempted to place his critique in the context of his pre-existing scholarly work on the rule of law. This review essay argues that only an appreciation for the dual nature of the modern …

Your Work Will Be Your Most "Faithful Mistress": Thoughts On Work-Life Balance Occasioned By The Loss Of Professor Jane Larson, Michelle Oberman

Faculty Publications

“Work-Life” balance has become part of contemporary public discourse. Whether in boardrooms, job interviews, or classrooms, we speak of this balance as a goal that is within our reach and worthy of our pursuit, collectively and individually. To date, the bulk of the discourse on work-life balance presupposes that a balance is obtainable and desirable. This essay challenges that notion. At the heart of my challenge is an alternate perspective on women’s relationship to work, inspired by a seemingly off-hand, yet rich comment made by my dear friend, the late Professor Jane Larson: "Your work will be your most faithful …

"What Else Could I Do?": Single Mothers And Infanticide, 1900-1950 [Book Review], Michelle Oberman

Faculty Publications

In her book ‘What Else Could I Do?’: Single Mothers and Infanticide, 1900–1950, Cliona Rattigan excavates a narrow, yet deep cache of cases about one of the world’s oldest and saddest phenomena: mothers who kill their children. Rattigan’s painstaking investigation of 300 such cases from Ireland, drawn from a half century during which the country knew great political turmoil, casts light on a more intimate, yet equally profound turmoil that took place among unmarried pregnant women during that same period in time. As the title suggests, in this history Rattigan dispels the notion that infanticide is a random crime committed …

A Social Justice Lens Turned On Legal Education: Next Steps In Representing The Vulnerable And Inspiring Law Students, Stephanie M. Wildman, Deborah Moss-West

Faculty Publications

No abstract provided.

Privilege Revealed: Past, Present, & Future [Revisiting Privilege Revealed And Reflecting On Teaching And Learning Together], Stephanie M. Wildman

Faculty Publications

No abstract provided.