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[I]t is of the utmost consequence that the people should discuss the character and qualifications of candidates for their suffrages. The importance to the state and to society of such discussions is so vast and the advantages derived are so great that they more than counterbalance the inconvenience of private persons whose conduct may be involved, and occasional injury to the reputations of individuals must yield to the public welfare, although at times such injury may be great. The public benefit from publicity is so great and the chance of injury to private character so small that such discussion must be privileged.
The words of Coleman v. MacLennan, penned over one hundred years ago, ring as true today as they did when written. Of course, since Coleman was decided, the way people and publications express themselves have changed in a number of ways. For example, print media has largely been replaced by electronic media. Many publications have online versions or publish exclusively in electronic form, and individuals can broadcast their opinions to large segments of the population via a growing number of social media platforms. Despite such changes, the proposition that individuals should be able to freely express their thoughts on candidates for office remains a bedrock principle of our democracy.
Randall Fincke (Fincke) was an entrepreneur on a mission to expand automated electronic defibrillation (AED) technology. In 2000, Fincke and a business partner formed Access Cardiosystems, Inc. (Access) to market, manufacture, and sell Fincke’s new AED technology. From its inception, Access was not financially stable, and in early 2001, Fincke was forced to invest his personal funds into the company. Subsequently, Fincke began to look for outside investors to help fund Access’s business operations. Eventually, Fincke found three loyal investors (the Investors), who invested 4.6 million dollars in Access between the spring of 2001 and June 2002.
Uber is an internet-based service provider, found as an application on a mobile phone. The service it provides: connecting ordinary people who need a car ride to a nearby location with ordinary people who are offering to provide a car ride in their own car. Uber is intentional in describing itself as not being a taxi-service. And in Uber’s five short years of existence, it has managed to provide what many deem as a radically better service than the traditional taxicab, leading to a detrimental effect on the business outlook of the taxicab industry. In response, the taxicab industry is pointing out an unfairness: Uber provides a service that resembles a taxicab service, yet avoids having to comply with the very regulations that are meant to protect taxicabs from competition. Instead of changing how they themselves conduct business in order to become competitive with their new competition, taxicab companies are taking Uber to court, going on strike, and petitioning legislatures and regulatory agencies to put an end to Uber, declaring Uber “illegal.” This has lead Uber to fight back strong by reiterating that it is not a taxi-service, but is merely a platform that connects people to people. This disagreement has escalated to the epitome of a modern day “war” between the political entrepreneur (those who use political capital to maintain the status quo) and the market entrepreneur (those threatening the status quo) and threatening the very existence of a sharing economy.1
On July 1, 2014, in AbbVie Deutschland GmbH & Co. v. Janssen Biotech, Inc.,1 the Court of Appeals for the Federal Circuit affirmed a district court’s decision invalidating the claims of two antibody patents for failing to meet Section 112’s written description requirement.2 Specifically, the court took issue with the patents’ functionally defined antibody-genus claims, concluding that the patentee failed to disclose a representative species of antibodies diverse enough to support the patents’ broad genus claims. Also of note was the court’s consideration of the preclusive effect of decisions by the Patent and Trademark Office’s Board of Patent Appeals and Interferences (Board). Moving forward, the AbbVie decision casts doubt on the validity of functionally defined genus claims, particularly in highly technical fields such as biological sciences, and it closes the door on parties attempting to make collateral-estoppel arguments based on interference decisions that are in the process of being challenged under 35 U.S.C. § 146. (more…)
Reflections on organizing an academic gathering easily risk becoming a navel-gazing exercise, and not a very interesting one at that. Those risks notwithstanding, I wish to use the occasion of an April 2014 program at Suffolk University Law School to champion the virtues of smaller academic events that promote genuine dialogue and move at a slower, more contemplative pace. Although I do not promise that I will offer anything especially profound here, this may plant a seed in others to develop similar programs and even have some fun in the process.
“With the check written but not yet signed, he swiveled back in his desk chair and seemed to ponder. The agent, a stocky, somewhat bald, rather informal man named Bob Johnson, hoped his client wasn’t having last-minute doubts. Herb was hardheaded, a slow man to make a deal; Johnson had worked over a year to clinch this sale. But, no, his customer was merely experiencing what Johnson called the Solemn Moment—a phenomenon familiar to insurance salesmen. The mood of a man insuring his life is not unlike that of a man signing his will; thoughts of mortality must occur.”
In the above excerpt from his true-life crime thriller, In Cold Blood, Truman Capote touches upon two important insights regarding estate planning. The first is the connection between the traditional estate planning tool of the will and newer modes of posthumous wealth transmission, such as life insurance. Capote’s second important insight is the connection between estate planning and mortality. Putting one’s affairs in order, whether through the execution of a will or the purchase of a life insurance policy, places death at the forefront of one’s mind.
Why shouldn’t law school introduce its students to modern, cutting edge theories, concepts, and practical skills? Teaching therapeutic jurisprudence (TJ) to law students accomplishes this goal by exposing students to innovative perspectives that demand rigorous application of one’s knowledge and values in a creative problem-solving approach. TJ does not promote the practice of psychotherapy by untrained or unqualified personnel; rather it seeks to educate lawyers, judges, legal personnel, and law students to use the law in a manner helpful to individuals and society as a whole.
“Professionalism as a personal characteristic is revealed in an attitude and approach to an occupation that is commonly characterized by intelligence, integrity, maturity, and thoughtfulness.”
“Words are the principal tool of lawyers and judges, whether we like it or not.”
The quotes above refer to two quintessential aspects of lawyers’ work. First, as members of a self-regulated profession, we must aspire to a level of professionalism that is characterized by intelligence, maturity, and thoughtfulness. Second, regardless of the tasks we undertake, words are critically important to lawyers. Not only must we be able to conduct comprehensive and coherent legal analysis; our ability to serve clients properly depends on effectively translating the analysis into words—both spoken and written.
In this short essay, I will discuss my historical involvement with therapeutic jurisprudence (TJ), how I use it in my classes (both in the free-standing TJ class and in all the others that I teach), its role in my written scholarship, and its role in conferences that I regularly attend. Although this will all be positive and will certainly be supportive of all efforts to widen the appeal of TJ as well as its applicability in the classroom, in scholarship, and in “real life,” I will also be sharing some information that is far from optimistic with regard to how law students and teachers react to TJ. I am deeply saddened by this but feel that this must also be “on the table” in any reflective conversation about TJ.
My contribution to the April 11, 2014, Suffolk University symposium on therapeutic jurisprudence (TJ) related mainly to my project—with Judge Michael Jones (ret.) of Arizona (another symposium participant) and Victoria Australia Magistrate Pauline Spencer—to “mainstream” TJ in the criminal and juvenile justice process. The project was part of the Hague Institute for the Internationalisation of Law’s (HiiL) Forum on Innovating Justice, and as it turns out, several entrants had projects and proposals that were TJ-related. In these published remarks, part of Suffolk University Law Review’s effort to expose the readership to a broad range of TJ ideas, it seems appropriate to briefly canvass the TJ-type projects, discuss how they can enrich legal education, and suggest ways in which law faculty and law students can improve on the forum’s innovations and add to their durability and practical application.