1. law, govt and politics

T HE
School of Law Newspaper Since 1970
ADVO C ATE
Santa Clara University School of Law
Wednesday, April 15, 2015
Volume 45 Issue 6
LBS Hosts Ethics in Law with Distinguished Alum Chip Lion
By Nikki Webster
Managing Editor
was lost, the ethical answer
would require the truth
and conversations with the
Lawyers are human –
lawyer’s partners or general
they make mistakes. So
counsel, malpractice carrier,
what should be done when
and the client herself.
mistakes are made? What
As professionals without
can be done to prevent them
much oversight, lawyers often
in the first instance?
have only themselves to turn
Last Thursday, April
to with regard to making
9th, Santa Clara’s Law and
ethical decisions. Lawyers
Business Society hosted
should behave ethically
the event “Ethics in Law,”
not just because it is the
presented by distinguished
right thing to do, but also
alumnus, Paul “Chip” Lion,
because the consequences of
III, and SCU law professor,
unethical action could be far
William Woodward.
worse than making the right
2015 recipient of the
choice in the first instance.
Alumni Special Achievement
Knowledge of the law places
Award, Lion is the head of
LBS Co-President Jack McCormack introduces Chip Lion and Professor William Woodward.
lawyers in a superior position
the American Bar Association’s
to clients such that lawyers
various hypotheticals that represent common
Business Law Section. Professor Woodward, in
could easily abuse their power without their clients
ethical issues that arise in the legal profession. A
addition to teaching contracts at Santa Clara,
realizing.
noteworthy hypo is the one in which a lawyer
is also Chair of the Pro Bono Committee of the
Jack McCormack, Co-President of the Law and
does not file suit within the statute of limitations
ABA’s Business Law Section.
for his client’s claim. Though the lawyer would be Business Society, told me his main takeaway from
Together, Lion and Woodward presented
See Page 2 “Ethics in Law”
in a position to simply tell the client that the case
Legal Eagles Soar High in HMCI
By Kyle Glass
Copy Editor
In their briefs for the Supreme
Court, Honors Moot Court Internal
Contestants dealt with a variety of
complex legal issues stemming from an
On Thursday, April 2nd, Santa Clara
extensive record created by the HMCI
Law’s Honors Moot Court Internal
board. Advocates created arguments
conducted its final round in the Music
regarding statutory interpretation and
Recital Hall. The final hearing consisted
tried to discern the intent behind a
of Kevin McManus and Tamarah
law through its legislative history. In
Prevost as counsel for the petitioner.
addition, competitors had to argue
Spenser Noh and Peter Tran were
whether empirical results implied a
counsel for the respondent. A three
causal connection which, for those of us
judge panel presided over the hearing
who have taken Con Law II, is always a
and included Judge Paul Grewal and
difficult task.
Judge Ronald Whyte from California’s
The road to the HMCI finals began
Northern District. The Chief Justice
way back in the Fall semester, with
was Cathy Sakimura who is the
everybody’s favorite class: Appellate
Family Law Director and Supervising
Advocacy. Students interested in
Attorney for the National Center for
competing submitted applications and
Lesbian Rights. Although both teams
were selected based on the quality of
of advocates did an excellent job
Competition winners Kevin McManus and Tamarah Prevost pose after the HMCI final.
their
coursework in advocacy. Sixteen
proceeding through their arguments
Maria Lopez was arrested in 1998 for drug related
teams were selected. In addition to their
and fielding the panel’s questions, Kevin and Tamarah
crimes, pleaded no contest and was sentenced to 5
normal
course
loads, they wrote and submitted briefs,
were selected as the Best Team and were also awarded
years in prison with fines.
and
participated
in practice oral arguments in the
Second Place Brief. Quarterfinalists Mike Morey and
After being released early for good behavior,
weeks leading up to the competition. When asked to
Kat Arianejad were awarded with the Competition’s
Miss Lopez was unable to pay off her fines, and
reflect on the process, winners Kevin and Tamarah had
Best Brief.
under Atlantica’s felony disenfranchisement law was
this to say:
This year’s competition focused on the State
prohibited from voting. In 2011, she challenged the law
“HMCI was a great challenge. We learned and grew
of Atlantica’s felony disenfranchisement law and
in United States District Court but the court granted
so much throughout the course of the competition.
whether it violates Section 2 of the Voting Rights
the State of Atlantica’s motion for summary judgement. Professor Flynn, Director Kyle Cakebread, and the
and the Equal Protection Clause of the United States
On appeal, the Fourteenth Circuit overturned the
rest of the executive board did an outstanding job
Constitution. Atlantica’s felony disenfranchisement
district court’s ruling finding that the law acted as
preparing the record, coordinating the tournament,
law was initially enacted in 1960 with the obvious
a voting qualification with a discriminatory effect
and pushing the competitors to improve every single
goal of discriminating against Hispanics. Over 30
violating the Voting Rights Act. In addition, the Court
round. We feel blessed to have had this opportunity.
years later, Atlantica reenacted the statute, this time
found that the law was enacted with a discriminatory
Kudos to all of the extraordinary advocates that
with a legislative record free from any discriminatory
purpose which, coupled with the law’s discriminatory
participated!”
intent. Despite the law’s reenactment, the law still had
effect, violated the Constitution’s Equal Protection
Those interested in partcipating in next year’s
a disparate racial effect, disenfranchising minority
Clause. Atlantica then petitioned the Supreme Court
competiton should use Advocacy to sharpen their skills
groups at significantly higher rates than white people.
for Writ of Certiorari which was granted.
and keep their eyes peeled for HMCI announcements.
In the fact pattern presented by HMCI, respondent
THE ADVOCATE
2
STAFF
Editor-in-Chief
Brent Tuttle
Managing Editor
Nikki Webster
Associate Editor
Lindsey Kearney
Copy Editor
Kyle Glass
Business Editor
Hannah Yang
IP Editor
Jodi Benassi
Privacy Editor
Sona Makker
Social Justice Editor
Nnennaya Amuchie
Staff Writer(s)
Angela Habibi
Campbell Yore
For The Advocate
Tori Anthony
Jonathan Joannides
Erica Riel-Carden
Editor Emeritus
Michael Branson
Email The Advocate:
lawadvocate@scu.edu
The Advocate is the student news
publication of Santa Clara University
School of Law. The various sections
of The Advocate are articles that
reflect the viewpoint of the authors,
and not the opinion of Santa Clara
University, The Advocate or its
editors. The Advocate is staffed by
law students. Printing is contracted
to Fricke-Parks Press of Union City,
California.
April 2015
Ethics in Law Event Continued...
the presentation: “It’s inevitable that mistakes will
be made. They might not be the fault of anyone,
but there’s a right way to fix things and a wrong
way to fix things. The result might be similar, but
ultimately short cuts will get back to you.”
There may be a way to help prevent mistakes
altogether: learn from current professionals who
have experience. As law students, we have very
limited experience to the vast range of fact patterns
that arise every day, and to the legal consequences
of action and inaction in each instance. Some
problems may be very nuanced, and some solutions
outside our current know-how.
This week, Santa Clara Law students have the
opportunity to learn from the 1800-2000 business
lawyers expected to attend the ABA Business Law
Section’s Spring Meeting. Mr. Lion has invited us all
to attend for FREE. Topics range from current legal
issues in corporate law, bankruptcy, and business
transactions; a full schedule is available at http://
www.americanbar.org/content/dam/aba/events/
business_law/2015/04/spring/guide.authcheckdam.
pdf. The Business Law Section has also created a
recommended schedule for law students at http://
www.americanbar.org/groups/business_law/events_
cle/spring_2015/students.html. Some events that
grabbed my attention are “Cross Border Lending
and Trade Financing,” “A Taste of IP Wine Law,”
“Making it Rain: Business Development for Young
Lawyers,” and the Law Student Speed Networking
Program.
Law students should consider attending the
Spring Meeting for three reasons. First, the
Business Law Section will be covering a plethora of
interesting topics on the cutting edge of law; where
both lawyers and law students can learn and provide
input that may impact the profession. Second, the
event is a prime networking opportunity where
law students can engage their potential employers
and converse with leading practitioners in the field.
Finally, did I mention law students can attend for
FREE? The only requirement is on-site registration
– click “register” on the linked page for registration
hours: http://www.americanbar.org/groups/
business_law/events_cle/spring_2015/students.html.
The ABA Business Law Section has over 50
substantive law committees, including mergers and
acquisitions, Uniform Commercial Code, private
equity, banking, bankruptcy, venture capital, and
more. The Spring Meeting is an excellent time to
tap into the resources the Business Law Section has
to offer. More importantly, engaging with current
practitioners is an expedient and efficient way to
gain experience without personally dealing with all
of the legal and ethical situations those professionals
have encountered. Attending Spring Meeting could
be more than just a fun and interesting weekend
of free hors d’oeuvres, drink, and stimulating
conversation; it could enable you to prevent
future mistakes in practice by growing your legal
foundation with experiential wisdom.
Rumor Mill with Dean Erwin
By Susan Erwin
Senior Assistant Dean
The summer and fall schedules hardly have any
classes listed. How am I supposed to finish my
certificate if you aren’t offering any of the classes that
I need?
It’s true that the summer offerings are much reduced
from previous years. Summer registration numbers
have been going down for the last couple years. I
like to think it’s because you all are getting jobs and
externships and going abroad and spending time with
your families in summer. We also have a much smaller
study body, which will also keep enrollments low. We
are being cautious and trying to plan wisely. Initial
registration is about over and it looks like we have a
couple of small wait lists that will probably clear on
their own. It doesn’t look like we have enough of a
waiting list to add another Advocacy section. There
are seats open in the day section of Advocacy, for those
of you who can take a day class. The campaign to add
a Legal Profession class was very successful and there
are almost 60 of you enrolled! (We should probably
put Ruby and Megan in charge of organizing more stuff
around here!)
The fall and spring schedules on the Current
Students webpage are tentative. We added the classes
that our faculty are teaching. We will be adding
days, times and notes soon. Once those classes are
scheduled, we will be taking a look at the electives
offered by our adjuncts and deciding which of those
to add. The directors of our centers and professors in
our other specialty areas are giving us advice on course
offerings and sequencing. You all will register for fall in
June. We should have a completed fall schedule in May.
In the meantime, we will keep adding classes as we
confirm them to try to give you as much information as
we can as soon as we can.
My section has been talking about grades. Is it
true that we won’t know our grades until the end
of summer? What if we end up on Directed Study
and have to change our schedule? Will our summer
abroad grades count toward our GPA to get us out of
Directed Study?
The professors have 30 days from the date that the
bulk of the exams are available for pick up from the
Faculty Support Office to turn in grades. (That’s usually
about 2 days after the exam.) So, you shouldn’t start
stressing about grades until mid-June-ish.
We will start watching your grades and will send
you an email (to your official SCU email address)
right away if you are on Directed Study. (Remember
the speech I gave during Academic Advising Week: a
third of you on DS, not a bad thing, not on transcript,
personal counselor, lots of help, good thing, helps pass
the bar, good not bad.) The folks in Academic Success
are there all summer to meet with you (and Skype)
and work with you to adjust your schedule, if we need
to. There’s plenty of time before classes start to get this
all worked out. Please note: there is no “off Directed
Study” - there is “on” and there is “not” – there is no
“off ”. You can’t work your way off of the program.
Like it or not, you are going to have all the help that
Academic Success can give you for the full 2 years of
upper division.
The grades that you earn in summer courses will
count toward your cumulative law school GPA once
summer grades are posted in August. The GPA
that we use to calculate your ranking and to make
determinations about Directed Study and academic
disqualification is the cumulative GPA that you have
after spring semester each year. So, yes your summer
grades count, but no, they don’t count in determining
directed study.
What’s with the slides about how depressed law
students are? This is not a good time to be telling us
that we have problems!
March 27th has been designated by the ABA as
Mental Health Day and the week of April 13th is the
Law School’s Wellness Week. We put these things
near the exam period for a reason. As you gear up for
exams and papers and studying, it is a good thing to be
reminded that you need to take care of yourself. Think
Balance. Eat. Sleep. Find healthy strategies to deal
with your stress, avoid unhealthy ways.
Almost 70 of you took the free on-line mental health
screening. About half of the responders reported
feeling anxiety. About a third reported feelings of
depression. The site – MentalHealthScreening.org
– offers suggestions on how to deal with these issues.
Our Counseling and Psychological Services Office is
here to help. I am here to help. Many of us are here for
you. Check in with us or check out the tools available
to you on the Current Students webpage - law.scu.
edu/current/. Follow the links under Resources: Law
Lifeline, Mental Health Screening, Counseling Center,
Disabilities Resources, Office of Academic and Bar
Success. Or . . . just stop by and see me.
Good Luck on Exams!
Heard any rumors lately? If so, send me an
email – serwin@scu.edu
April 2015
THE ADVOCATE
3
17th Annual Trina Grillo Retreat Inspires Social Justice
By Nnennaya Amuchie
Social Justice Editor
On Friday, March 20th and Saturday, March
21st, many law students took time out to attend
the infamous 17th Annual Trina Grillo Retreat
hosted by the Center for Social Justice and Public
Service, along with Consortium Law Schools.
The Trina Grillo Retreat provides a unique
opportunity for public interest and social justice
law students, faculty and practitioners to forge
an alliance by exchanging viewpoints, exploring
career opportunities, and formulating strategies
for social justice. Co-sponsored by Santa Clara
Law School and the Society of American Law
Teachers (SALT), with other west coast law
schools, this retreat honors the memory of
Professor Trina Grillo, 1948-96, who was a
source of inspiration to many.
Trina Grillo was a champion of
intersectionality and anti-essentialism. She once
said, “Anti-essentialism and intersectionality are checks
on us; they help us make sure that we do not speak
for those we cannot speak for or ask others to share
our agenda while they patiently wait for their own.”
Trina believed that it is important for us to listen to
one another and believe each other’s experiences. We
become a more compassionate and open society when
we are willing to reach out to others.
The Trina Grillo Retreat was well attended with
over 80 participants. In addition, the retreat received
positive feedback from attendees with six Santa Clara
Law alumni participating as panelists or moderators.
To kick off the weekend, students participated in
community service events all throughout the South
Bay which included providing lunch to the homeless,
working with elementary school students in their
gardening class, making handmade blankets for
children, crafting handmade bracelets for U.S. Service
members, and inspiring young children to attend
Attendees pose at the Trina Grillo Retreat.
college and pursue careers in the legal field.
Ernest Estes, who volunteered to visit an elementary
school, told me, “The event was great! As busy law
students, we sometimes need a reminder that we have
a role outside of the legal community. For children
this young, just being visible and accessible makes
a difference. We each represent different and often
unfamiliar routes to success. Although dodgeball was
amazing, in the end we hope the children could see
themselves in us, as much as saw younger versions of
ourselves in them. After all, we’ll need them to solve
the problems that our generation can’t.”
Many students were inspired and renewed their
vision for social justice and public interest. Following
the community service events, there was a series of
speakers and panelists.
This year’s panelist and speakers included
representatives such as Deputy Chief of Staff & Public
Safety Director, City of San Francisco, Santa Clara Law,
Southwestern Law School, Bay Area Legal Aid,
Tirien Steinbach, East Bay Community Law
Center, Golden Gate University School of Law,
Red Light Legal, Pro Bono Project of Silicon
Valley, ACLU of Northern CA, LawGives,
Stanford Center for Computers and Law, and
deans from the participating law schools.
Many innovative topics were discussed
including “Social Justice Entrepreneurialism”
which explored innovative trends in social
justice entrepreneurism. Increasingly, law school
graduates are developing innovative methods
to provide legal services in new ways, to new
populations, in new areas of law. These panelists
gave the audience advice on finding a passion
and creating sustainable models to launch your
own practices that reflect your passion. Another
interesting topic was “Using Technology and
Social Media to Change the World”.
Santa Clara alum, Zsea Beaumonis, told me,
“It was inspiring to see so many law students in
attendance at the Grillo Retreat, as they are already
heeding the call to serve neglected, underserved
communities so early in their legal careers. I
appreciated hearing about the way practitioners serve
the public interest through their entrepreneurial
endeavors, and how they incorporate new technologies
to broaden their impact. I hope the Consortium
members continue to support this important institution
and incorporate the goals of social justice throughout
their entire legal curriculum, beyond the silo of Public
Interest Law.”
The Center for Social Justice and Public Service
invites you to attend next year and keep Trina Grillo’s
legacy alive! For more information, visit http://law.scu.
edu/socialjustice/trina-grillo/.
Panetta Institute Offers Students Invaluable Insight
By Tori Anthony
For The Advocate
In this frustrating time of gridlock in
Washington D.C., the question on the minds of
many is, “How can we actually get something
done?” Santa Clara Law provides the chance for
students to answer this question by becoming
fellows at The Panetta Institute for Public Policy.
Fellows are given the chance to conduct research
and develop an in-depth knowledge on issues of
international, national, state and local concern.
The Institute creates an inspiring atmosphere that
motivates everyone who steps within its doors
to consider a life of public service and become a
leader in the community.
The Panetta Institute was founded in 1997
by Secretary Leon Panetta and Sylvia Panetta.
Secretary Panetta served as the CIA director,
the Secretary of Defense, White House Chief
of Staff, and as a member of the U.S. House of
Representatives. Secretary Panetta is also a Santa
Clara University alumnus receiving his B.A.
degree and J.D. degree from Santa Clara. In 2006,
Santa Clara Law and the Panetta Institute jointly
created The Panetta Institute Fellows program in
which Santa Clara Law upper division students are
chosen each fall and spring semester.
The Panetta Institute Fellows acquire knowledge
on the most prevalent and pressing policy subjects
through extensive research. Currently, the
fellows are preparing for the Leon Panetta Lecture
Series, which focuses on the areas of energy, race
relations, the economy, and cyber security. In
the fall semester fellows provide support for
the Jefferson-Lincoln Awards: An Evening to
Honor Lives of Public Service. Fellows help with
SCU Law Alum Leon Panetta speaks at graduation in 1988.
Photo credit: Charles Barry
any research and writing needs of the Institute,
building a greater understanding of the workings
of the American political system.
An invaluable aspect of the program is when
elected officials, experts, and other prominent
academics come to speak directly to the fellows.
This Spring semester, fellows have met with
Secretary Panetta, as well as other experts,
including State Senator Bill Monning; Drew
Liebert, Chief Counsel, California Assembly
Judiciary Committee; Ryan Coonerty, Santa
Cruz County supervisor; Steve Isenberg, former
publisher of New York Newsday, a university
professor and former chief of staff to New York
City Mayor John Lindsay; John Laird, California
Secretary for Natural Resources; and Fred Keeley,
former state Assemblyman. The speakers tell their
story, often explaining how their law degree has
led them to their careers and the current policy
issues facing public officials. All of the speakers
are experts in their fields and are genuinely
interested in talking with the fellows and
providing guidance for future career paths.
Fellows also attend a weekly seminar and
discussion, where they are introduced to the
scholarly work of leading academics and writers
that are discussed in the Institute’s master’s level
courses: Money, Media and Politics; Legislative and
Executive Politics and Policymaking; and Budget
Policy. Lastly, the fellows write policy papers on
topics of their choosing. After extensive research,
fellows boil down the key elements of a policy
problem and propose a solution to the current
policy issue. Individual feedback is given to help
improve upon writing skills.
The Panetta Fellowship gives students the rare
opportunity to understand how to develop a
solution to major policy issues, and to learn the
qualities and principles needed to be a successful
leader in any area.
Applications are currently being accepted
for the Spring 2016 Fellowship. For further
information contact Dean Magliozzi at
smagliozzi@scu.edu or visit http://law.scu.edu/
apd/panetta-fellowship/.
THE ADVOCATE
4
April 2015
Office Hours Unwound
1.What is your favorite summer memory to date?
The summer when I got my first real six-string. I bought it at the fiveand-dime and played it ‘til my fingers bled.
2. What was your favorite course from law school and why?
My most memorable graduate school course was taught by investment
banker Michael Milken. Milken earned $550M in 1987, so my peers and I
aspired to be just like him—until he went to jail. After Milken was released
from prison, in Fall 1993 he taught a UCLA Business School course called
“Corporate Finance, Financial Institutions and Investments.” The course
sparked nationwide controversy (see, e.g., http://articles.latimes.com/199402-18/local/me-24338_1_michael-milken) and was repeatedly lampooned
in the Doonesbury comic strip (start with http://www.gocomics.com/
doonesbury/1993/11/15).
The class had kickoff and closing dinners just like investment bankers do
when
they are working on important deals. At the closing dinner, all of the
Eric Goldman
students
got commemorative Lucite plaques reprinting 12 pearls of wisdom
Co-Director of the High Tech
that
Milken
wanted us to remember. For example, Concept #6 says: “The
Law Institute & Professor of Law
1980’s was a time of giving.”
I still have the Lucite plaque in my office. Drop by and check it out.
Areas of Specialization:
Internet Law, Intellectual
3. Which character(s) from literature and/or film do you most
Property, Advertising &
identify
with?
Marketing, Slinkies
I’ve always aspired to be the “Joe Cool” version of Snoopy, but I’m
actually more like Woodstock. I also identify with Mr. Spock from Star
Education:
Trek TOS. He’s logical, loyal, acerbic, dedicated to his job, a vegetarian, and
-J.D., UCLA
played by a Jewish man.
-M.B.A., UCLA
-B.A., UCLA
4. What is your favorite source, (news / journal / legal blog / other)
for keeping current with the law?
For legal news, I rely heavily on TMZ and The Onion. I also read The
Advocate and my own blog, http://blog.ericgoldman.org.
5. What would you do with a time machine?
I would patent it! But I’m not sure I would actually use it. In the movies,
time machines always seem dangerously finicky.
6.What was your favorite summer job that you had while in law
school and how did you get it?
During my 1L summer (1991), the legal market was in a recession—not
as severe as now, but still bad. I applied to over 100 firms in the major
metro areas throughout the western United States and generated a giant
stack of rejection letters.
1. What is your favorite summer memory to date?
I think summers when I was a kid were amazing and some of the
best memories. I lived in a town where in the summers kids just rode
bikes and played in yards and playgrounds all day. There were no
scheduled activities or structured teams. There was a 6:00 whistle that
you could hear all over town and all the kids knew they had 10 minutes
from the whistle to get home.
As an adult, my favorite summer memory was taking a trip last
summer to Macchu Picchu with my family. A truly magical place.
2.What was your favorite course from law school and why?
I have very little memory of almost anything from law school- and
definitely not from a favorite course. The work I did outside of classes
was what made law school a great experience.
3.Which character(s) from literature and/or film do you most
identify with?
I would have to say Cher in the movie Suspect- only because while
preparing for the movie, Cher came and watched me in a quadruple
murder case I was trying. We chatted about what it was like to be a
Public Defender. Cher drove a white Honda civic in the movie- like I
drove and the set department copied parts of my apartment including
my ironing board in the living room with files on one end and the iron
on the other. Only big difference was Cher slept with a juror- (played
by Dennis Quaid)- and I have never done that! Of course, I have never
had a juror who looked like Dennis Quaid. Unfortunately, it’s not a very
good movie… and I guess it really means that Cher should identify with
me.
4.What is your favorite source, (news / journal / legal blog / other)
for keeping current with the law?
Important Supreme Court cases were always well covered and
analyzed by Jon Stewart and Stephen Colbert. Sadly now, I’ll have to
find new sources of news and legal analysis. Maybe Professor Eric
Goldman will start blogging about criminal law and death penalty
issues instead of just IP law.
5.What would you do with a time machine?
I would like to go forward to see how long it takes us to finally get rid
of the death penalty and join the rest of the civilized world in abolishing
that practice. (Those who know me were probably waiting to see how I
would work the death penalty into these questions.)
As summer drew nearer, I needed to change search strategies. I tried to
find markets where I could be more competitive—such as markets where
smart people wouldn’t want to go. In retrospect, the solution was obvious:
smart students don’t want to spend their summers in the desert, where it’s
hotter than heck.
Armed with this insight, I sent out three resumes to law firms in Palm
Springs. I immediately got three interviews.
I got hired at a small tax and litigation firm in Palm Springs. I got
paid less than I was making before I went to law school. The temperature
repeatedly topped 120. I lived 1/3 of a mile from the office, but I still arrived
at the office sweaty and gross. I didn’t really love the legal work.
On the plus side, eventually I married the boss’s daughter, so the job
turned out great.
7. What is your favorite concert that you’ve attended?
I’m not much of a concert-goer. I even avoid going to my kids’ school
performances.
8. If you could sit down for dinner with any Supreme Court Justice,
dead or alive, who would it be and why?
If I had a time machine per Q5, I wouldn’t be limited to just one! But
if I had to pick only one, I would enjoy having dinner with Justice Evelina
Qirjako of the Albania Supreme Court. I believe she has written some
interesting opinions (although I’m not sure because I can’t read Albanian).
9. What do you consider to be the most important development in
your field over the last 5 years?
The collapse of student demand for legal education is pretty significant.
I’ll also note the changing demands of legal employers, who used to prize
smart generalists who lacked well-defined career plans but now prefer
hyper-focused specialists.
10. How do you unwind?
My family situation doesn’t leave me with much downtime any more.
However, in my limited free time, I like to think about ways to make my
final exams harder for my students. I find my stress level reduces as I come
up with innovative ways to ratchet up the stress for students. It’s like a
principle of stress conservation.
6. What was your favorite summer job that you had while in law
school and how did you get it?
I worked as an investigator at the D.C. Public Defender Office
during my second summer of law school. I was walking around the
law school and saw a room filled with people who were wearing
jeans- no suits and no ties. So I figured I’d see what they were doing
in the law school. This was at a DC law school where even a lot of the
students wore suits! Turned out they were Public Defenders hiring for
the summer. I took the job- although I really had no particular interest
in criminal law. Within a week, I knew I had found my passion. Just
shows- you never know!
7. What is your favorite concert that you’ve attended?
There was a Grateful Dead Concert back in Philadelphia when I
was in college that has to be a favorite. Back then they played for 5-6
hours at a time and that’s all I have to say about that.
8. If you could sit down for dinner with any Supreme Court
Justice, dead or alive, who would it be and why?
I would love to sit down with the Notorious RBG- Ruth Bader
Ginsberg. She is an amazing intellect while still compassionate for the
individual. She has seen a lot, done a lot, and would have much to say
and, at this point in her life, I believe she would not hold back. Any
Supreme Court Justice who admits to being a little tipsy at the state of
the union message would be fun as well as interesting.
9.What do you consider to be the most important development in
your field over the last 5 years?
My field is criminal law and, in particular, the death penalty. The
most important development in my field is yet to come- as I wait for
abolition in California and the rest of the country. In the past few
years six states have abolished the death penalty and several more have
imposed moratoriums while they study whether or not to continue the
practice. The Pope is finally speaking out more forcefully against the
death penalty and many more people have come to appreciate that it is
a practice that does not belong in today’s society.
10. How do you unwind?
I like to run (outdoors- not running in place on a treadmill looking
at the outdoors); I have two adorable golden retrievers who are always
ready to take me for a walk and listen to any problems or concerns of
the day. (Sometimes I bring them to school to help students unwind.)
And I like to read- just for fun. So anyone who has a good book
recommendation- send it on to me.
Ellen S. Kreitzberg
Professor of Law
Areas of Specialization:
Criminal Law, Death Penalty,
Evidence, Trial Advocacy
Education:
-J.D., George Washington
University Law School
-B.A., University of
Pennsylvania
April 2015
THE ADVOCATE
How Ellen Pao’s Loss is Really a Victory
By Hannah Yang
Business Editor
The dust has settled somewhat since the jury in
the Ellen Pao case found for her former employer,
Kleiner Perkins, on all four counts.
But, as Ms. Pao has suggested in posttrial interviews, the conversations
should not end here. While the facts
of the case focused on the venture
capital world, Ms. Pao’s story could
have easily been transmuted into
any field. There is an unfortunate
familiarity.
In the wake of trial lies the
foundation of this story. One that
includes practices that are far too
common, but which have since
emboldened those who have been
similarly situated to speak out against
inappropriate practices in the work
environment. The men-only ski
trips, and dinner parties. Dropped
invitations to conferences and events.
Inappropriate sexual comments
in the office. Lack of support from
supervisors and alienation from
male colleagues. Through all this morass, Pao
attempted to voice her reasonable complaints to
her supervisors, but without any luck or change.
Some suggested she develop a tough skin. Others
suggested she bite the bullet, and make herself
more amenable to the unwanted advances. Pao’s
options became more limited, until finally, she
filed suit, and subsequently was terminated.
Pao’s supporters praised her for her courage
in standing up for herself in an area where many
women feel that they don’t have a voice. On the
5
other hand, critics suggest Pao is just an unlikable
person, and that based on her own background
and history, she may have had ulterior motives in
pursuing these claims. Anyway, at trial both sides
had all their dirty laundry aired out, and while
was documented during “Gamergate.”
The results from recent diversity studies
detailing the alarming disparity between men
and women in both the skilled employee and
high-level management roles in Silicon Valley are
widely known now, and represent
a real problem. The tech industry’s
struggles in recruiting women
have causes at all levels, from poor
interest development in STEM
(Science, Technology, Engineering,
Math) courses, to burdens upon
entering the workplace, such as
lack of mentors and role models,
to harassment by colleagues, and
hostile work environments. Still, it
does not follow that the homogeny
among those in management is
due to the smaller pool of women
in the industry. A note here: while
venture capital firms are not per
se tech companies, the two worlds
share a symbiotic relationship, where
venture boasts an even lower female
participation rate.
Hopefully, even as interest in
Ellen Pao takes the stand in her suit against Kleiner Perkins.
the case winds down, the events
Illustration credit: Vicki Ellen Behringer
that unfolded last month can inspire
Kleiner Perkins won the jury, there is a feeling that greater consciousness of these issues. Along with
Pao and her supporters don’t view this as a true
this knowledge comes the ability to effectuate
loss, but as motivation to continue the fight toward changes to the current standard. Although the
fairer representation. Coincidentally, the trial
structural biases disadvantaging women run
unfolded at a very relevant time: issues of gender
deep, there is good news in that the desired
inequality had made its way back to the public’s
outcome is attainable, so long as there is continued
awareness through studies; the word “feminism”
recognition and work toward progress.
resurfaced in popular discourse; the harassment
toward female gamers and Internet personalities
High Tech Law Journal Finishes Volume 31 Strong
By Erica Riel-Carden & Brent Tuttle
Editor-in-Chief, HTLJ &
Editor-in-Chief, The Advocate
Journals are considered a co-curricular
activity where students further develop
their Bluebooking, legal research, and
leadership skills. The High Technology
Law Journal (HTLJ), ranked 5th in
the Nation for Intellectual Property by
Washington & Lee Journal, focuses on all
aspects of IP and high-tech law. This year,
Volume 31 sought to preserve its place in
the community through publication of its
articles and other programs.
Santa Clara’s HTLJ is a leading
forum for multidisciplinary discourse
on emerging issues at the juncture of
technology, the law, and public policy.
The Journal publishes four issues per
volume. This year, Volume 31 procured
16 articles from legal scholars and law
students across the country. Below is a summary that
touches on the wide range of subject matter.
Issue 1 was devoted to our 2014 Symposium
regarding the regulation of the high-tech sharing
economy, commonly referred to as “disruptive
technologies.” These new technologies and business
models are challenging the typical ownership structures
of goods or services. One article in particular reviewed
the currently regulatory framework of autonomous,
self-driving cars. Issue 1 also contained HTLJ’s 2014
student comment winner, Robert Klein, who wrote
an in depth piece on Net Neutrality, exploring the
arguments around data caps from the perspective of
the consumer, the content provider, and the internetservice provider.
Four articles from Volume 31 were devoted to
measuring patent litigation damages. While one
article advocates for the Nash Bargaining Solution as
HTLJ Editors & Associates visit Google HQ
a sound economic method, another piece argues that
willfulness should only be proven by a preponderance
standard instead of clear and convincing evidence
after Octane Fitness and Highmark. Additionally, one
author analyzes the evolution of damages and the
Federal Circuit’s most recent holistic approach toward
calculating royalties. The last article discusses Shell’s
test when determining whether a licensee should be
relieved of royalties on an invalid patent.
Cybersecurity was featured in three articles in
distinct areas: Department of Defense IT acquisitions,
botnets, and consumer privacy. Two pieces tackle
patentable subject matter while one author considers
whether Directors should have a fiduciary risk to
manage patent portfolio risks. The Volume ends with
a recap of 2014 SCOTUS IP cases. All of these articles
will be on Digital Commons before Fall 2015.
Volume 31 also implemented an eSignature
program, Hellosign, to archive all of our
author publication agreements. In addition,
the Journal was able to renegotiate one of its
royalty licenses until 2019. This is significant
as fewer than 10% of all legal journals
generate royalties.
Beyond improving their research skills
and working with leading IP scholars, HTLJ’s
student Editors and Associates were given
the opportunity to meet with members of
our supportive and successful alumni group.
In November, students and practitioners
all gathered at our Fall Launch Party. Our
alumni represented firms including Baker
Botts, Foley & Lardner, Gard & Kaslow, and
Hopkins & Carley. In addition, companies
such as Coursera, Crown Castle, Intuit,
and SAP America were all in attendance to
meet with the Journal staff and other alum.
In January 2015, HTLJ hosted its annual
symposium on “Open Source in the Legal
Field” where approximately 80 attorneys
attended to discuss the legal implications for open
source software. In February, a group of HTLJ’s student
Editors and Associates toured the Google campus and
met with five Google in-house attorneys.
When asked about HTLJ’s future, incoming Editorin-Chief Brian Wood had this to say, “Volume 32
aims to carry on the distinction of past volumes
by further developing our network within the high
tech community, enhancing the online edition, and
procuring cutting-edge scholarship for our growing
base of subscribers. Our new editorial board is
currently focused on recruiting a strong associate
class and reviewing article submissions by some of the
foremost academics and practitioners. Moving forward,
we expect that Santa Clara law students on the HTLJ
will continue to influence judicial decision-making and
advance the legal profession.”
6
THE ADVOCATE
April 2015
Close but No Cigar: Telecommunications in Cuba
By Jodi Benassi
IP Editor
Not too long ago I travelled to Cuba
with the Cuban Legal Immersion group to
research the history and current state of
Cuba’s telecommunication infrastructure. In
Havana, I observed a culture virtually void
of the compulsive relationship to mobile
phones. Having traversed through most
of Latin America, I found Cuba to be an
anomaly in the region; here access to the
Internet is far more controlled and censored
than in any other country.
Presently, Cubans find access to
telecommunication services in their country
extremely limited for three main reasons:
the impact United States sanctions have
had on communication construction given
the extraterritorial jurisdiction the United
States maintains over multinational telecom
corporations; the Cuban economy; and
the Cuban government’s fear of freedom of
information.
Unbeknownst to many, Cuba is a country
rich with a history of developing advanced
communications. The first discovery of the
electrical transmission of speech was made
by the Italian scientist, Antonio Meucci
in Havana in 1849, pre-dating Alexander
Graham Bell by 27 years. It wouldn’t be until
1877 for the first telephone conversation
to actually take place in Havana at a cost of
$22.35 for a three minute conversation to
San Francisco.
The Castro led Cuban revolution
unquestionably set into motion a series of
events which changed how Cuban society
utilized its resources for technological
innovation. To prevent covert action by
the United States government, as well
as to eliminate internal dissent, Castro
immediately and continuously to present
day maintains control over all forms of
media outlets. Lack of access is the primary
blocking tool used by the government to
restrict technology to the population.
By Angela Habibi
Staff Writer
According to security technologist and
New York Times best selling author Bruce
Schneier, “data is the pollution problem of
the information age, and protecting privacy
is the environmental challenge.” Schneier
analogizes the informational age with the
early Industrial Revolution in stating:
“Just as we look back today at the early
decades of the industrial age and wonder how
our ancestors could have ignored pollution in
their rush to build an industrial world, our
grandchildren will look back at us during
these early decades of the information age and
judge us on how we addressed the challenge of
data collection and misuse.”
Data production causes very real
issues concerning: what happens to the
information collected and how it is being
used, who has access to such information,
and how information is being disposed. As
Schneier puts it, these challenges, like the
climate change addressed in the passage
above, are central to the health of our
information economy.
When asked, people often uniformly state
that they value privacy. Despite this, modern
technologies collect information that
formerly left no trace. In the United States,
there is not very much protection for data
generated by people, as collected by third
parties. In this way, personal information
is collected and inferred from patterns of
Internet behavior as raw data. Information
is then used for advertising and persuasion.
Thus, the ads seen by you will differ from the
ads seen by someone else based on interests,
By the early 1990s, following decades of
revolution.
U.S. sanctions, hurricanes, and a significant
There are currently only two ISPs in
fire, the Cuban telecommunication
Cuba: Ceniai and ENet. The estimated
infrastructure had become a hodgepodge
Internet penetration rate is less than three
of antiquated analog equipment that was
percent, one of the lowest in the world.
rapidly
In 2013,
deteriorating.
ETECSA (the
Faced
national phone
with the
company),
necessity of
opened 118
modernizing
Internet salons
its telephone
around the
service, Cuba
island, only
was forced to
twelve of
compromise
which are in
on its socialist
Havana proper.
principles
Contrary
and become
to what is
more open
published by
to private
news sources,
enterprise
my research
and foreign
discovered that
investment
the “Internet
through
Cafes” are
partnerships
limited to
with Spain,
the Cuban
Italy,
“Intranet” only.
Mexico, and
The Intranet
Venezuela.
is tightly
These
controlled
relationships
by the
enabled Cuba
government
ETECSA: National Phone Company - Photo: Jodi Benassi
to begin
and consists
a massive
of a national
overbuild of cable, fiber, and wireless
email system, a Cuban encyclopedia,
telecommunications that connected
educational material, Cuban websites, and
government offices, businesses, military
foreign websites that are supportive of the
installations, and key resorts.
Cuban government. As of March 6, 2014,
Today, all national and international
the average rate for Intranet use was $1.50
telecommunication services, radio, and TV
CUC per hour, a rate of approximately 6% of
within Cuba are owned by six Cuban state
an average monthly salary, unquestionably
entities. In 2007, Cuba and Venezuela laid a
more than a typical Cuban can afford.
995 mile underwater fiber cable to connect
From a legal perspective, the framework
the island to the global Internet. Even
in Cuba provides for certain rights and
before the cable was fully connected, the
freedoms; however the Constitution of
Cuban government made it clear that the
Cuba narrows the scope of these freedoms
Cuban people should not expect a digital
by prohibiting private ownership of media
Data and Goliath
what the company believes is your income
level, what type of customer you are and
more. This personalized form of advertising
is designed to influence you and you alone.
In fact, host websites that provide books
in digital form online (to be read on the
computer, iPad, or Kindle) know what is
being read, how quickly it is being read, and
For example, last year the ride-sharing
service company Uber used the data
collected of customer routes to determine
one-night stands through rides happening in
the evening to a place and rides happening
the next morning away from that very
same place. Because Uber receipts include
a map of the route taken, the company
what information is being re-read. So, if you
download Fifty Shades of Grey as Schneier
points out, Amazon will know which parts
you read and re-read. Further, Schneier
shares that cellular phone companies collect
data on your calls; credit card companies
collect data on your purchases; search
engines collect data on your searches, and all
of the data collected by third parties are then
owned by those third parties to do what they
wish with the information.
stores where a person starts and ends their
ride. The data remains. Uber labeled such
rides as “Rides of Glory” and searched its
database to produce aggregate statistics on
the cities, neighborhoods, and days of the
week that this activity was being done. This
data could be subpoenaed and if Uber so
decided, it could have released the names of
the people engaging in such Rides of Glory.
Legally, Uber has no obligation to keep such
information private.
outlets and allowing “free speech” only when
it conforms to the aims of Cuban socialist
society. Soon after the Internet emerged in
Cuba, the Cuban government issued Decree
Law 209, also known as, “Access from the
Republic of Cuba to the Global Computer
Network” which mandates that the Internet
cannot be used “in violation of Cuban
society’s moral principles or the country’s
laws” and must not “endanger national
security.” The following year, Resolution
127, a network security measure, banned the
use of public data-transmission networks
for the spreading of information that was
against the “social interest, norms of good
behavior, the integrity of the people, or
national security.”
Cuban law requires service providers to
install controls to allow them to detect and
prevent the proscribed activities and report
them to the authorities. Ultimate access is
determined by the designated authorities
who may argue that the nation’s Intranet
and “Informed” website should suffice for
a given portion of the population. Through
limiting the ability of the average Cuban to
access the World Wide Web, Cuba in turn
limits potential dissidents. The reasons for
preventing Cubans from having access to the
Internet are indeed complex.
Ultimately, Cuba needs to overcome the
dictator’s dilemma, the perceived political
and cultural threat of access to the World
Wide Web versus its value in improving
lives and the economy. Governmental
control policy can change, as seen during
the severely depressed economic period of
the 1990s, commonly known as the “special
period”, when the Cuban government
relaxed its policies toward foreign
investment.
In the words of Jose Marti y Perez, “To
change masters is not to be free.” Cuba only
needs to figure out how it can keep its values
while at the same time providing economic
and intellectual opportunities for its people.
All in all, Schneier offers a deep but
accessible look at surveillance from a
practitioner’s perspective and proposes a new
class of “information fiduciaries” to guard
against commercial exploitation of data.
He opines that privacy is about individual
autonomy and the essential thought of
being in charge of your own personhood.
Privacy is not about something to hide,
but rather, a fundamental human need.
The crux of the problem is that data is
interconnected, however. There is thus a
dire need for protection in the data chain of
collection, use, storage, transfer (or selling),
and ultimately, deletion. Such protection will
alleviate the threat of major data breaches,
as exemplified with Target Corporation,
Home Depot or Anthem Health, where
data is stored by a third party and stolen by
criminals.
How can people protect their privacy?
Much of the data collected is metadata and
is collected by the systems we use. As such,
using privacy enhancing technologies, or
PETs, can help with blocking surveillance.
Examples of PETs that block sites tracking
your data as you wander the Internet are:
Lightbeam, Privacy Badger, Disconnect
Ghostery, Flashblock and others. Being
careful what is said on Facebook, using
search engines such as DuckDuckGo,
programs to secure email and chats, as well
as encryption programs for voice are all
steps in this direction. Schneier ultimately
suggests it important to be mindful of the
data collection and surveillance and to
engage in dialogue that could spark legal
change.
THE ADVOCATE
April 2015
7
What We Risk When We Ban Racist Speech
Op-Ed by Marc Randazza
Managing Partner, Randazza Legal Group
America used to be a place where we said, “Give
me liberty or give me death.” We live by a credo that
“freedom isn’t free,” and that our Constitution is worth
dying for. How inspirational it is to believe that this is
the wind of thought that blows underneath the Eagle’s
wings.
Unfortunately, whenever that wind becomes just a
little too gusty for comfort, we find out just how little
relationship our poetic credo has to our collective guts.
The latest example: Nine seconds of video of a
number of boys singing an offensive song. Immediately,
the University of Oklahoma expelled two of the boys
for their speech. Forget whether you like the speech or
not. That is not relevant. These boys got kicked out of a
public school for singing a song, on their own time, in
a privately rented bus, simply because the government
didn’t like the content of their song.
Censors overstepping their bounds is no surprise.
What surprises me is how readily the public supported
the expulsions, and how many supposedly intelligent
people were willing to turn the First Amendment on its
head, because of nine seconds of video.
I don’t like the song or its message either. I can’t
imagine anyone reasonable who would. But I want to
live in a country where the government does not listen
to my songs and then decide whether or not I should
be punished, based on what words I used. That is not
freedom.
I understand that most of us hate racism. We are
on a mission to eradicate it from all corners. But I am
not willing to trade the First Amendment for a society
where we don’t need to hear racist words.
In Abrams v. United States, Justice Oliver Wendell
Holmes wrote a passage that ultimately became the
cornerstone of a liberty-based view toward free speech,
and which became the dominant theory in First
Amendment jurisprudence. In Abrams, Holmes gave us
“the marketplace of ideas.” And what a brilliant theory
it was.
Holmes noted that if someone was completely
confident in the belief that they were right, then it
would seem logical that they would want to suppress
dissenting views. “If you have no doubt of your
premises or your power, and want a certain result with
all your heart, you naturally express your wishes in law,
and sweep away all opposition.” Those who wish to
eradicate racism are certain that they are right.
I believe in a racism-free world. I have marched in
counterprotests against the Ku Klux Klan. I’ve stood
up in places you don’t want to be, against violent neoNazis. And I would do it again.
“These boys got kicked
out of a public school for
singing a song, on their
own time, in a privately
rented bus, simply because
the government didn’t like
the content of their song.”
But I feel no kinship with anyone who would
harm the First Amendment to fight racism. Some
things are worse than racism -- like a loss of the right
to speak your mind and think your own thoughts.
Unfortunately, that is a price that too many of us are
willing to pay.
I am not. As certain as I am that my views on race
are correct, I cannot shake Holmes’ wisdom from my
mind. He wrote:
“But when men have realized that time has upset
many fighting faiths, they may come to believe even
more than they believe the very foundations of their
own conduct that the ultimate good desired is better
reached by free trade in ideas -- that the best test of
truth is the power of the thought to get itself accepted
in the competition of the market, and that truth is
the only ground upon which their wishes safely can
be carried out. That, at any rate, is the theory of our
Constitution.”
For that reason, I would gladly protest against the
KKK, but I would never abide any government official
denying the KKK its right to speak.
I understand those who would wish to do so. They
want to eradicate racism, and the end will justify the
means. However, we have slowly been descending into
a place where we are trading this for freedoms that are
far more precious than the freedom to avoid having our
feelings hurt by offensive statements.
Of course, some say that these were more than
“offensive.” The song was a “threat.” After all, it did
mention lynching black people. But was that really a
threat? An idiotic ditty in an all-white bus? To call it a
threat is disingenuous.
What about the disruptive nature of the song?
Should other students have to go to school with
people who clearly despise them, and who carry these
offensive racist thoughts? Yes. They should be free
to have these thoughts, they should be free to say
these things. If it crosses the line into action, or even
imminent incitement to action, that’s another story. In
this case, that never happened. The First Amendment
prevails here.
It is easy to claim that these Sigma Alpha Epsilon
boys did not deserve First Amendment protection.
Many have said so. But, when you hear that, your
immediate reaction should be one of skepticism. The
First Amendment is not there to serve as a comforting
blanket of civility. In fact, it is there precisely to protect
the sharp edges. It is there for the KKK, the Nazis,
SAE, and you alike. It is there for words that shock us,
challenge us, and that bother us.
You should want to protect the SAE boys -- not that
they deserve it. You should do so because the day will
come that your speech is unpopular.
Once, speech in favor of racial equality was
considered to be “bad speech.” Once, professors were
kicked off campus for not being “anti-gay enough.” But,
today, the thought of equality and tolerance have won
out in the marketplace. Let that victory stand, without
trying to cement it with the force of law, and without
destroying the very liberty that allowed these “good
thoughts” to flourish in the first place.
Building Resilience: Embracing Stress to Optimize Your Performance
By Jonathan Joannides
For The Advocate
As a Marine Officer, I developed strategies to
prepare Marines for combat situations by stress
inoculation. The goal was to familiarize Marines
in stressful situations to be aware of their own
abilities that would maximize their performance.
More importantly, it was to teach the coping
mechanisms to recover from stressful experiences
making them resilient to stress and expanding
their abilities to perform in more stressful
environments. In this lull prior to the chaos
of finals, I hope this insight from my former
profession will enable you to better understand
what the human mind goes through in stressful
situations and how you can better prepare
yourself to embrace law school as a valuable stress
inoculator that hones the management of your
own stress to optimize your performance and
lead a healthy life.
Stress and the body’s response to it
Stress is your physical and emotional response
to an external or internal event called a stressor.
Such an example of an external stressor would
be a test, a reading assignment, or even going on
a date. An internal stressor may be an illness or
a headache. What’s important is that a stressor
is something you cannot control. What creates
stress is how you perceive the stressor. In other
words, you create your own stress by framing the
external or internal event as a threat. So what do
people do with threats? They fight, they flee, or
they freeze. The first two are choices, the last is
not. Your brain handles these situations without
you really thinking about it.
The brain’s autonomic nervous system
controls the interactions of the physical brain
with its physical environment. The brain is
divided into the thinking brain and the survival
brain. The thinking brain is the neocortex, which
handles rational thought and self-awareness. The
survival brain is a combination of the mid-brain,
which handles emotions and memories, and
the brain stem, which handles your instinctual
survival mechanisms for circulation, breathing,
digestion, sleep and sex. This nervous system
seemingly operates without your awareness, but
a finer distinction among the nervous system
occurs when faced with a stressor.
When an event outside your control occurs,
the sympathetic component of your nervous
system activates, causing you to fight or flee.
Think of this as an accelerator on your car. You
are going to push the gas to do something, and
you will continue to do it until you have made
it through the event. If you remain “activated”
during an event, you are inevitably going to crash
without some sort of closure to the stressor or
an ability to manage it. The crash is out of your
control. A final exam causes you to “fight” in
the sense of pushing yourself to study. If your
body constantly remains activated, such as if
you constantly study, you will crash in the worst
case scenario. Either your body shuts down or
freezes. In the best case scenario, you will suffer
from a degraded performance. Therefore, you
need a mechanism to slow down the sympathetic
nervous system to develop resiliency.
The natural brake to deactivate and develop
resiliency is the other half of your nervous
system, the parasympathetic component. This
is the component that slows down your body
to recover, usually through rest, digestion, and
mental relaxation. One way to picture this is
to view the accompanying images here and
here. Notice the upper limit of the graph is the
sympathetic “activation” bar. The lower limit
is the parasympathetic “recovery” bar. Your
resiliency, or ability to manage stress, is the area
between the bars. When you stress yourself, you
activate yourself towards the sympathetic bar.
If you don’t recover with the parasympathetic
system, you will get stuck above the bar and
freeze. By striving to de-activate yourself through
an awareness of these stressors, then you actually
separate the area between the bars, creating a
greater resiliency. However, too much recovery
may result in an apathy to confront a situation or
recognize its importance. This may be the result
of choosing not to do something and then being
unable to come out of that frozen state.
Awareness and building resiliency
This awareness of your own stress is critical.
How to define and articulate this is beyond
the scope of this article but a necessary topic
of self-study. However, you can assume stress
is occurring when you are preparing for finals
or while you are trying find and build your
legal resume, such as through job searching
and internships. This is the “fight” mechanism
that you choose to activate. Therefore, in order
to develop resiliency and keep yourself from
freezing or performing at a degraded pace,
you must strive towards deactivating your
sympathetic nervous system when you are
activated.
Resiliency is a by-product of both good stress,
called eustress, and bad stress, called distress.
One must accept that both are part of the deal. I
used to tell my Marines to “embrace the friction
[distress]” because it isn’t going anywhere.
Therefore, remember that you are never quite
out of the activation phase; it is something you
tolerate. You can’t hide from your finals or your
job search. Your goal is to keep from freezing -the choice you cannot control -- and you do this
with eustress.
One way eustress can be thought of in this
context is a sliding scale of activities that cause
you to break from the grind of the stressful
activation that you perceive. Call these the
healthy distractions, if you will. From the most
healthy to the least: (1) practicing meditation/
mindfulness exercises, (2) striving for sleep/
exercise/healthy eating and hydration, (3)
talking to friends/confidants, (4) sitting quietly
or walking in nature, (5) reading a book or
magazine, (6) listening to music, (7) habitual
eating of food, especially junk food, (8) watching
movies/video games/surfing the web, (9) using
excessive tobacco/caffeine, and (10) drinking or
partaking in adrenaline seeking behaviors.
Note the elephant in the room on number ten
with respect to the stereotype of lawyers. The
scope of this article is not to judge behaviors
as bad, but to elicit an awareness of them.
What is important to grasp is the development
of resiliency, not how to escape from stress.
Escaping is otherwise known as fleeing, which
is not an option for lawyers given their duties
to their clients. These behaviors should serve a
purpose towards building resiliency that enables
you to “fight” at a heightened performance.
Healthy interactions with friends (number three)
through strong social ties to work collaboratively
together are the single greatest thing you can do
for each other. In the right context, having drinks
with your fellow classmates may be healthy, but
recognize where the benefit comes from: social
interactions.
Therefore, be there for each other, talk about
the stress, but make sure you are striving towards
recovery actions each day in midst of your law
school career. At a bare minimum, breathe.
The best mindfulness exercise for a break is to
visualize yourself smelling some fragrant roses
while physically breathing through your nose.
Then, with a wish in your head, blow out through
your mouth, imagining that you are extinguishing
the candles on your birthday cake.
Embrace the stress and focus on your recovery
actions constantly! Challenge yourself to develop
the resiliency here in law school before you hit
the real world. This mindset to be a stronger and
more effective lawyer begins by taking on the
most difficult challenges. Use your finals as the
vehicle to begin developing the proper mental
habits to develop resiliency!
8
THE ADVOCATE
April 2015
Additive Manufacturing: a Case Study on Disruptive Technology
By Campbell Yore
Staff Writer
Soon we will live in a world of ubiquitous
electronics. With Samsung, Apple, Microsoft and
Google already committing millions to this technology,
not even the privacy doomsdayers can prevent
the inevitable rise of the internet of things (IOT).
Additive manufacturing (AM) or 3D printing is one
of many technologies necessary to enable IOT. Aleph
Objects, Formlabs, Voxel8, and other manufacturers
of personal 3D printers envision consumers printing
microelectronics on ordinary objects to bring them
online. The promise of desktop 3D printers has
introduced a new market for AM devices, disrupting
the industry and igniting a battle between established
first movers and startups for personal 3D printer
revenues.
Although new to consumer electronics, 3D printers
have been around for decades. The first AM patent
covered a method of using lasers to build objects layer
by layer and dates back to 1951. Currently, a myriad
of different application specific methods of AM exist,
but the basic methodology is consistent. An object
is first drawn in computer assisted design (CAD).
Software then slices the drawing into very thin layers
and generates a series of “paths” for the printer head
to follow in manufacturing. From this data, the printer
assembles objects by building them up one layer
at a time. This additive method of manufacturing
has several advantages over traditional subtractive
machining techniques like powder metallurgy
or casting. The most prominent include superior
design flexibility, reduced tooling, shorter design to
manufacturing cycle time, instant local production, and
material, energy, and cost efficiency. These advantages
are not just theoretical with the aerospace, automative,
medical, architecture, and food industries all
incorporating AM techniques into their manufacturing
operations.
Historically, a small contingent of companies have
dominated 3D printer market share. 3D Systems
(NYSE: DDD; Rock Hill, SC) specializes in laser based
(sterolithographic) printers, Stratasys (Nasdaq: SSYS;
Eden Prairie, MN) manufactures objects by fused
deposition (melting together layers of semi liquid
material) and Optomec (Albuquerque, NM) focuses
on direct metal deposition printing. Each of these
firms is backed by hundreds of millions in product and
technology development and generates revenue from
selling room size AM devices with six to eight figure
price tags. Only recently, upon pressure from startups
and the market, have these behemoths pursued desktop
3D printers.
Startups, on the other hand, have controlled the
market for personal 3D printers since its inception
by combining ivy league technology with millions in
crowd and venture capital funding. Devices like the
Form 1 and Voxel8 embody the mesmerizing effects
of AM’s reduced tooling to deliver unprecedented at
home manufacturing capability. In response to the
growing demand for sleek, small yet powerful devices,
AM’s first movers have aggressively entered the new
consumer electronics market for 3D printers. Stratasys
acquired MakerBot and its king desk top printer,
The Replicator, in 2013 with a hybrid stock purchase
and performance conditioned cash out totaling $604
million.
First movers have also been active in litigation.
In 2012, 3D Systems sued newly minted Kickstarter
millionaire Formlabs for patent infringement its home
South Carolina district court. The original complaint
also named Kickstarter for contributory infringement,
but no answer was filed before 3D Systems
voluntarily dismissed and refiled a more sophisticated
infringement suit alleging direct infringement of US
patent 5597520 (filing date 04/25/1994) and seven
other patents in the Southern District of New York.
With many of the infringed patents nearing expiration
and Formlabs’ lack of interest in paying litigate
invalidity, the parties eventually reached a settlement
agreement in 2014. To get out of court, Formlabs had
to pay 3D Systems an 8% royalty on all 3D printer and
liquid resin sales.
With similar aggression, Stratasys has used litigation
to protect its investment in MakerBot. Less than a
year after the acquisition, the company asserted its
patent rights against desktop competitor Afinia. In its
complaint, Stratasys alleges neighboring Minnesota
firm Afinia repackaged Maker Bot knockoffs from
China and marketed them to universities and educators
as a cheaper alternative.
In conclusion, the above empirics demonstrate the
necessary marriage between disruptive technology
startups and lawyers. When a company’s business
model depends on unseating or directly competing
with an established contingent of savvy, more
resourced first movers, lawyers are needed to define
the boundaries of technology ownership and assure
each side uses its intellectual property assets to most
efficiently support, protect, and market its profit
generating operations. As a result, lawyers remain
among the first employees entrepreneurs should seek
to hire. The consequences of being under-lawyered in
today’s intensely competitive business environment are
just too high.
Step 1: BART Trains; Step 2: South Bay; Step 3: Profit
Op-Ed by Lindsey Kearney
Associate Editor
Extending BART to the South Bay Area is
astoundingly smart growth when assessed on rider
demographic, job market, and convenience metrics.
Currently, BART lines run as far south as Fremont in
the East Bay, and Millbrae on the Peninsula, stopping
just short of the vibrant world-class Silicon Valley
economy that occupies the South Bay Area region.
Santa Clara County’s Valley Transportation
Authority (VTA) has teamed up with BART to develop
a plan for expanding BART’s service to the South
Bay. In 2000, 70% of voters passed Measure A, which
provides a 30-year extension of a prior sales tax for the
purpose of funding BART’s extension to Santa Clara.
Again in 2008, a 2/3 majority of Santa Clara voters
approved a 30-year 1/8-cent local sales tax dedicated
solely to funding the operating and maintenance costs
associated with VTA’s BART Silicon Valley Extension.
BART’s extension to Silicon Valley is scheduled in
two phases: Phase I will include an additional BART
station in south Fremont, and stations at Milpitas and
Berryessa. This extension will bring commuters into
the Silicon Valley with combined BART/VTA service
to a list of employers including Cisco Systems, Adobe,
and EBay. Phase II of the expansion will bring BART all
the way into San Jose, including stations at Alum Rock,
Downtown San Jose, Diridon, and Santa Clara. The
addition of these stations will not only connect East
Bay commuters with Caltrain, providing a viable public
transit opportunity to the South Bay and the Peninsula,
but they will finally unite the three major Bay Area
metropolitan hubs with rapid, environmentally
friendly, and cost-effective public transportation
service. San Jose is the third largest city in California,
with over 1 million residents in its city limits. The
South Bay Area region at large contains over 4 million
people, all of whom will now have access to the greater
Bay Area via BART.
In late 2014 and early 2015, VTA and BART held a
series of public town hall forums for residents to ask
questions and voice their concerns about the project.
Questions and concerns ranged from environmental
impact, to changes in property values for those living
near or adjacent to a proposed station. There was a
contingent of audience members who were of the
opinion that tunneling two miles to create a Santa Clara
station would be redundant since Santa Clara is already
served by Caltrain. BART representatives were quick
to respond with a detailed plan regarding train storage:
every station at the end of a line must have enough
space to accommodate train parking, and Santa Clara
is a logical location for this (it would be unreasonable,
for example, to create a BART train parking lot in
downtown San Jose). Furthermore, and of paramount
importance for SCU students, the fact that Santa Clara
is already served by Caltrain is not mutually exclusive
to the fact that Santa Clara residents would benefit
from BART service. Since Caltrain only serves the
Peninsula and the SOMA district of SF, and BART
serves the East Bay, wider SF, and the greater Bay Area,
dual service in Santa Clara would not be redundant,
but instead complimentary.
Caltrain is an effective way for a rider to get into San
Francisco, if that rider is has a schedule handy (Caltrain
serves Santa Clara with roughly one train every 30-60
minutes, depending on the time of day), and if that
rider is going to an area of SF near AT&T park or
elsewhere in the SOMA. However, if a rider is travelling
to, say, an internship in Oakland, Berkeley, Pleasanton,
or Walnut Creek, then the efficiency of Caltrain is
greatly diminished; commuting this way would require
a rider to travel up the Peninsula, through the City,
and under the Bay to reach Oakland, or else that same
commuter could weather the drive up the 880 freeway
to Fremont and board a BART train there. Since the
BART parking lot at Fremont station often fills to
capacity before 9:30 a.m., the wary commuter could
choose to drive up to Union City and BART to the
East Bay from there. All of these methods are timeconsuming, expensive, and would be alleviated by
BART service in the South Bay.
Oh, the places you’ll go, as a resident of the Bay
Area, once the three major regional hubs are now
connected—San Francisco, Oakland, and San Jose. On
a macro level, extending BART to the Silicon Valley
region has sweeping public policy implications that are
overwhelmingly positive. The expansion will affect the
job market, the housing market, and even public safety.
Imagine being a business owner able to recruit labor
from a larger pool, or as an employee being able to
apply to a wider variety of jobs because your commute
has become feasible. Imagine living in the East Bay and
working in the South Bay with greater flexibility and
ease. Increased BART ridership means fewer cars on
the freeways, which in turn means better air quality
and safer freeways.
Connecting the South Bay Area with the greater
Bay Area by way of a BART expansion is smart growth
that the region has needed for years and, by 2018 for
Phase I and 2025 for Phase II, it will finally achieve. If
the goal of a public transit system is to provide as many
residents as possible with rapid, cost-effective, and
convenient service, then bringing BART to Santa Clara
makes both dollars and sense.
Feel free to contact me with comments or questions at
lkearney@scu.edu