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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.
In the spring of 2013, the attention of many turned to one of the largest jackpots available in the history of the Powerball multistate lottery. Eventually, it was reported that Pedro Quezada of New Jersey was the sole winner of the prize. Quezada opted to take a $211 million lump-sum payment, rather than receiving the full amount of the $338 million prize in installments. However, New Jersey authorities made clear that the $29,000 Quezada owed in child support arrears would be deducted before any payments were made to him.
Other than perhaps Quezada himself, few people would have any quibble with this relatively small deduction from his jackpot winnings. After all, the obligation to support one’s children is firmly established in both law and morals. To the extent Quezada can use his newfound wealth to make up for any past failures to satisfy his child-support obligations, he should do so. Similarly, many would agree that Quezada’s minor children should be able to share in his lottery winnings. However, reasonable people may disagree regarding whether this should be in the form of increased mandatory child support payments, or whether Quezada should be able to independently determine how to share (or not share) his newfound wealth with his children as part of his parental prerogative.
For decades, the Supreme Court has expressly declined to address whether the Fifth Amendment right against self-incrimination prohibits the State from using evidence of a non-testifying defendant’s pre-arrest silence in its case-in-chief. But it did so last term in Salinas v. Texas, a ruling that significantly affected the rights of Americans set forth in Miranda v. Arizona. In Salinas, the Court considered whether the Fifth Amendment’s protection against self-incrimination bars the admission of evidence about a defendant’s pre-arrest, pre-Miranda silence as substantive evidence of guilt. However, the Court did not ultimately address this broad issue. Instead, a three-justice plurality only narrowly held that because Salinas did not expressly invoke his Fifth Amendment privilege in his pre-arrest, pre-Miranda police interview, his silence was admissible at his trial.
Americans and their historians have long viewed constitution-making in the Founding Era as a local event with global repercussions. It is a story of American ideals and interests in which American drafters, voters, and ratifiers made key decisions. Americans then began to work out the meaning of their constitutions in state and federal institutions, which required that some officeholders be citizens. Only after the ratification of the federal Constitution did foreign nations take heed, through imitation and (later) force. This myth of the originally authentic, and later diffusionist constitution, is not limited to the United States.It has been the dominant conception of constitution-making
in many times and places.
In fact, American constitution-making began as an international process. All the American constitutions of the Founding Era, state and federal, were made with foreign, as well as domestic, audiences in mind. International factors, from wartime imperatives to calculations of long-term commercial advantages, contributed to American constitution-making from the beginning. Indeed, the founding documents of the early United States⎯the state constitutions, the Articles of Confederation, the Declaration of Independence, and the Model Commercial Treaty⎯were designed at least in part as diplomatic instruments that, together, formed a revolutionary portfolio. Furthermore, the foundational documents articulated an Enlightenment-inflected vision of an international order of “civilized nations,” among which commerce would balance power.