Santa Clara Law Magazine Fall 2017

T H E M A G A Z I N E O F S A N TA C L A R A U N I V E R S I T Y S C H O O L O F L AW | FA L L 2 0 1 7 | V O L 2 4 N O 1

magazine

PATENT PATROL Two Santa Clara Law professors helped set in motion dramatic national changes in today’s patent system. Page 18

F RO M T HE D E A N magazine

SKIP HORNE Senior Assistant Dean, External Relations ELIZABETH KELLEY GILLOGLY B.A. ’93 Editor LARRY SOKOLOFF J.D. ’92 Assistant Editor MICHELLE WATERS Web Designer JOHN DEEVER Copy Editor AMY KREMER GOMERSALL B.A. ’88 Art in Motion Art Director, Designer KAREN BERNOSKY B.S. ’81 ELLEN LYNCH JENNIFER MACHADO MARJORIE SHORT Law Alumni Relations & Development

Santa Clara University School of Law, one of the nation’s most diverse law schools, is dedicated to educating lawyers who lead with a commitment to excellence, ethics, and social justice. Santa Clara Law offers students an academically rigorous program including certificates in high tech law, international law, public interest and social justice law, and privacy law, as well as numerous graduate and joint degree options. Located in the heart of Silicon Valley, Santa Clara Law is nationally distinguished for its faculty engagement, preparation for practice, and top-ranked programs in intellectual property. For more information, see law.scu.edu.

If you have any questions or comments, please contact the Law Alumni Office by phone at 408-551-1748; email lawalumni@scu.edu or visit law.scu.edu/alumni. Or write Law Alumni Relations & Development, Santa Clara University, 500 El Camino Real, Santa Clara, CA 95053.

The diverse opinions expressed in Santa Clara Law magazine do not necessarily represent the views of the editor or the official policy of Santa Clara University. Copyright 2017 by Santa Clara University.

Reproduction in whole or in part without permission is prohibited.

law.scu.edu/sclaw Santa Clara Law is printed on paper and at a printing facility certified

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AIM 10/17 11,250

Dear Friends,

J

ust a year ago, on the cover of this very magazine, we featured the groundbreaking ceremony for our new home, the Howard S. and Alida S. Charney Hall of Law. A short 12 months later, the building has taken shape and we are gearing up for our transition into the new space in early 2018. This will be an historic move for the Law School—the first time we will all be under one roof in over 40 years!

And while the Katharine & George Alexander Community Law Center will remain on The Alameda in nearby San Jose in order to serve its clients and the greater community more effectively, we will be recognizing the amazing work of the Center while honoring one of its long-time champions, Cynthia A. Mertens, professor emerita and former executive director of KGACLC, with a conference room named for her in Charney Hall.

Faculty and staff members are digitizing documents, clearing bookshelves and packing boxes. While the physical move from multiple locations into one is daunting, the opening of Charney Hall represents much more than just a relocation of our School—it will also mark the beginning of a new programs and initiatives designed to enhance and extend our connections with Silicon Valley law firms and businesses and prepare our students better to meet the needs of their future clients.

I look forward to sharing more about these exciting new changes over the coming months, from our Tech Edge J.D. program to our mandatory Critical Lawyering Skills course for 1Ls to our compliance programming. In the meantime, we are thrilled to announce our newest programming in conflict resolution, thanks to the generosity of John Bates Jr. J.D. ’74 and the leadership of Dana Curtis J.D. ’87 (see page 13). And we are also deeply grateful for a major gift from Richard P. Berg, professor emeritus, and his wife, Madé, that will support summer grants to Santa Clara Law students serving the public interest (see page 12).

We are grateful for the many ways in which our alumni and friends have helped Santa Clara Law support this transformation for our School and students. In less than six months, I look forward to welcoming you into our new home, which will bring a renewed sense of energy and momentum in the Law School, throughout campus and beyond.

God bless,

A Lisa Kloppenberg Dean & Professor of Law Santa Clara Law

CONTENTS FA L L 2017 | VO L 24 N O 1

FEAT U RE S

8

Farewell to Four Teaching Scholars

BY ELIZABETH KELLEY GILLOGLY B.A. ’93

18

Campaign Update

BY ELIZABETH KELLEY GILLOGLY B.A ’93

Two major gifts support student programs in public interest and conflict resolution.

14

Attorney for Planet Earth Q&A BY DEBORAH LOHSE

Phil Gregory J.D./MBA ’80 is co-counsel on Juliana v.

United States, a lawsuit against nearly two dozen federal agencies, alleging that their collective failure to combat climate change has threatened the constitutional rights of future generations.

READ THIS MAGAZINE ONLINE Visit us online for links to additional content, including the very latest news about our faculty, students, and alumni. Our magazine website also makes it easy to share articles from this issue (or previous issues) with friends and colleagues.

law.scu.edu/sclaw

Cover: Santa Clara Law Professors Brian Love and Colleen Chien are leading the fight against patent abuses through groundbreaking academic work. Photo by Keith Sutter.

BY DEBORAH LOHSE

Two Santa Clara Law professors are among the most active academics exploring the problems in today’s patent system.

A spotlight on faculty members who retired in 2017.

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Patent Patrol

32

Connecting Mind and Heart in Divided Times

BY DANA CURTIS J.D. ’87

Santa Clara Law’s new director of Conflict Resolution Programming explores the challenges and opportunities we face in conflict.

D EPART M ENT S 2 10 26 31 32

LAW BRIEFS CAMPAIGN UPDATE CLASS ACTION ALUMNI EVENTS CLOSING ARGUMENTS

Above: Located off Palm Drive at the gateway to the SCU campus, Santa Clara Law’s new home, Charney Hall, is nearing completion.

Slated to open in March 2018, the 96,000-square-foot facility is now a reality thanks to a $10 million leadership gift from trustee and alumnus Howard Charney MBA ’73, J.D. ’77 and his wife, Alida. Photo by Adam Hays.

LAW B RI E F S

Law Dean Reappointed

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K EI T H S U T T ER

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anta Clara University is pleased to announce that Lisa A. Kloppenberg’s term as dean of the Santa Clara University School of Law has been extended for an additional five years. In July 2013, Kloppenberg was appointed to an initial five-year term; with the latest contract extension, she will serve through August 2023.

“I am honored and thrilled to be able to continue to serve the Santa Clara Law community,” says Kloppenberg. “I look forward to leading our transition to the magnificent Charney Hall of Law, securing resources to support our bold vision, and implementing innovative new programs designed to prepare our students to become ethical, exceptional leaders of tomorrow’s legal profession.”

Under Kloppenberg’s leadership, the School of Law has achieved a number of significant accomplishments, including: • Advanced a bold vision that builds on Silicon Valley linkages to be a premier and distinctive Jesuit law school that produces excellent, ethical leaders who will impact the globe at the intersection of law, technology, business, justice, and ethics • Developed innovative programming giving students more practical skills and exposure to cutting-edge legal issues • Enhanced recognition as a leading program in intellectual property law (ranked 4th nationally) and in part-time legal education (ranked 32nd nationally) • Enrolled annually a diverse pool of talented students (ranked 12th nationally for diversity) • Completed the design and commenced construction of the Howard S. and Alida S. Charney Hall of Law, a 96,000-square-foot facility that will soon provide a spectacular home for Santa Clara Law • Raised more than $32 million in

Lisa Kloppenberg will serve as dean of Santa Clara Law through 2023.

gifts and pledges from alumni and friends for Charney Hall, a new endowed professorship, and scholarships that will reward achievement and provide increased access and affordability for qualified law students • Worked to right-size the School of Law in response to the changing national landscape for legal education “Since arriving at Santa Clara, Dean Kloppenberg has elevated the reputation of Santa Clara Law by strengthening its programs and building important relationships with Silicon Valley leaders and institutions,” said Michael Engh, S.J., president of Santa Clara University. “She has keenly articulated our distinctiveness as a Jesuit law school and harnessed our capacity for greatness. We are fortunate to have Dean Kloppenberg at the helm of the Law School for another five years.”

In addition to her exceptional service as dean, Kloppenberg is a well-

known expert in constitutional law and alternative dispute resolution, a field in which she has authored or co-authored two books and dozens of articles. She has also served on numerous national committees—many focused on legal curricular or professionalstandards reform—of the American Bar Association, the Association of American Law Schools, and the Law School Admission Council.

Kloppenberg earned her J.D. from the University of Southern California Law Center (now USC Gould School of Law) and her bachelor’s degree in English and journalism from USC, with an undergraduate honors diploma from the University of Kent (Canterbury, England). Before serving as dean of Santa Clara University School of Law, Kloppenberg served as dean and professor of the University of Dayton School of Law from 2001-2013 and professor of law at the University of Oregon from 1992-2001.

Laura Norris and Colleen Chien Named 2017 Women Leaders in Tech Law

Laura Norris J.D. ’97

J O A N N E H . L EE

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wo prominent Santa Clara University School of Law professors, Laura Norris J.D. ’97 and Colleen V. Chien, have been named to the 2017 Women Leader in Tech Law list by The Recorder, one of California’s leading legal, tech, and business publications. Also named to the list are Santa Clara Law graduates Heidi Keefe J.D. ’95, partner, Cooley; Karyn Smith J.D. ’91, general counsel, Twilio; Lorna Tanner J.D. ’02, partner, Sheppard Mullin; and Karen Webb J.D. ’04, partner, Fenwick & West.

This marks the seventh year for the annual program, which recognizes recent outstanding work by Californiabased lawyers whose practices focus on technology companies and issues.

Editors selected 65 winners, all legal professionals who handled deals that are reshaping the industry, cases that are setting new precedent, and navigated a murky regulatory environment.

Honorees are featured on The Recorder website and were honored at a reception in San Francisco on October 5.

Colleen Chien

David Sloss Is Named Sutro Professor of Law

AD A M HAYS

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ongratulations to Professor David L. Sloss, who President Michael Engh, S.J., recently appointed as the John A. and Elizabeth H. Sutro Professor of Law. Aligned with the spirit of the Sutro Professorship, Sloss combines his research and teaching to benefit the public interest. His latest book on global treaties earned a prestigious award from the American Society for International Law. He teaches major bar courses in addition to upper-division international law electives. He was voted the most outstanding teacher by Santa Clara Law first-year students in 2016-17, and will serve with Professor Ellen Kreitzberg as co-director of Santa Clara Law’s Center for Social Justice and Public Service in 2017-18.

“David is devoted to helping students pursue public interest jobs, from the Bay Area to Geneva, and he draws on his many contacts to establish externship and other learning opportunities for our students,” says Dean Lisa Kloppenberg. “He has served the School with great energy and enthusiasm, and we congratulate him on this well deserved honor.”

David Sloss

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Lydia de la Torre Joins Santa Clara Law As New Privacy Law Fellow

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o further expand its leadership in the field of privacy law, Santa Clara University School of Law has appointed experienced data-protection counsel Lydia F. de la Torre LL.M. ’14 as its inaugural privacy law fellow.

De la Torre has substantial experience working on complex international data-protection issues in Silicon Valley and Europe. She has been senior privacy counsel at Intuit, PayPal, and eBay, and also practiced tax and data-protection law at the prestigious Spanish law firm Garrigues.

and certification requirements. De la Torre will contribute to the program by teaching, publishing, organizing speakers and events, and advising students.

“I am excited to join the outstanding Santa Clara Law privacy program as its first privacy law fellow,” said de la Torre. “I look forward to preparing students for the tremendous opportunities that exist today in the growing dataprotection field.”

“Lydia is an ideal choice to become our first privacy law fellow,” said Professor Eric Goldman, supervisor of the Privacy Law Certificate. “Lydia’s knowledge about, and experience prac-

With the rapid evolution of the digital economy and resulting proliferation of personal data, the job market is booming for privacy professionals adept at navigating the complex web of worldwide data-protection regulations.

Santa Clara Law has one of the country’s most robust and innovative privacy law programs. Its groundbreaking Privacy Law Certificate, launched in 2014, is designed to train the next generation of privacy lawyers through professional fieldwork, courses co-taught by industry specialists, and publication

“I look forward to preparing students for the tremendous opportunities that exist today in the growing dataprotection field.”

—LYDIA F. DE LA TORRE LL.M. ’14

K EIT H S UTT E R

ticing, privacy and data-protection law in the U.S. and Europe will enrich our community substantially.”

De la Torre is licensed to practice law both in the EU (Spain) and the U.S. (California). She is a member of the International Association of Privacy Professionals (IAPP), and she holds a CIPP/U.S. certification from the IAPP. De la Torre earned a J.D. from Universidad Complutense School of Law (Madrid, Spain); an LLM in EU Taxation from Centro de Estudios Garrigues; and an LL.M. in IP from Santa Clara University School of Law.

4 SANTA CLARA LAW | FALL 2017

Lydia F. de la Torre LL.M. ’14, Santa Clara Law's inaugural privacy law fellow, has substantial experience working on complex international data-protection issues in Silicon Valley and Europe.

Santa Clara Law Welcomes Newest Incoming Class

AL I N A K H A R I N A

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t a recent legal panel at SCU, experts compared how software patents are handled in the United States and in Europe. One of the speakers was Alexandra Koseva, a young woman who is a European patent attorney and a U.S. patent agent, with plenty of experience in the complexities of patent law and prosecution on both continents.

Not too extraordinary perhaps, unless you consider that Koseva is also a first-year law student at Santa Clara University this year.

“I’m reverse engineering my legal career,” jokes Koseva, who will earn her J.D. in 2020. She chose Santa Clara Law because of the strength of its intellectual property (IP) program, the robust programming of the High Tech Law Institute, and the strong, diverse classmates who will be in class with her.

“Now that I am at Santa Clara Law in Silicon Valley, the whole world is open to me,” says Koseva, who will be an IP Fellow. “I’m really happy to contribute to the IP community.”

Koseva earned her undergraduate degree in computer science from Sofia University in 2008 and a master’s degree in IT law from Stockholm University a year later. She’s been working as a patent clerk for Schwegman Lundberg & Woessner in San Jose since May, after a two-year program at the European Patent Office and five years as a patent engineer with SAP Labs in Bulgaria.

Now she wants to be able to practice IP law in the U.S. Koseva, who is originally from Bulgaria, is one of the 179 full-time and 42 part-time students who began their first year of law school at Santa Clara University School of Law this semester.

The class is 60 percent female, and 60 percent of the class identifies as an ethnic minority.

“We are so pleased to welcome this talented, diverse, and accomplished class of first-year students to Santa Clara Law,” said Dean Lisa Kloppenberg.

Alexandra Koseva, a European patent attorney and a U.S. patent agent, is a member of Santa Clara Law’s incoming class.

“We are so pleased to welcome this talented, diverse, and accomplished class of first-year students to Santa Clara Law. Along with our returning students, this class will be the first to benefit from our brand-new Howard S. and Alida S. Charney Hall of Law, which opens in March, and was built to maximize our location in Silicon Valley and the tremendous interdisciplinary resources of the Santa Clara campus.”

—DEAN LISA KLOPPENBERG

“Along with our returning students, this class will be the first to benefit from our brand-new Howard S. and Alida S. Charney Hall of Law, which opens in March, and was built to maximize our location in Silicon Valley and the tremendous interdisciplinary resources of the Santa Clara campus.”

This newest class of students comes from 17 states and five foreign countries including China, India, Italy, Canada, and Pakistan. Thirteen students are permanent U.S. residents, from countries

including Australia, Egypt, South Korea, and Mexico.

Twenty-two of the incoming students already have advanced degrees, seven M.A.s; seven M.S.s; six Ph.D.s; two LL.M.s; and three MBAs. More than 1,900 people applied for spots in this year’s class, which has a median age of 23 (full-time) and 27 (part-time).

In addition to the students seeking their J.D. degrees, another 11 new students will pursue an advanced LL.M. degree.

FALL 2017 | SANTA CLARA LAW

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LAW BRIEFS

SCU Honors Andy Kryder with 2017 Ignatian Award

6 SANTA CLARA LAW | FALL 2017

Law School Advisory Board. Through the years he has been a guest lecturer in the International Business Transactions course.

In 2008 he returned to his love of feeding others and founded Giving Gourmet, which donates fully staffed gourmet meals for nonprofit fundraising.

Kryder and his organization have served more than 50 dinners, raising close to $150,000 for charities including Notre Dame High School, Shark’s Foundation, Northern Lights, and JW House.

Kryder retired in 2010 and graduated from the French Culinary Institute in 2011.

“Andy is a shining example of a leader who serves, and we are so proud of him for his outstanding accomplishments and dedication in his career and in his service to others,” said Lisa Kloppenberg, dean of Santa Clara Law. “The Law School is especially fortunate that he is willing to share his time and wisdom with us as we shape the future of legal education in Silicon Valley.”

“Andy is a shining example of a leader who serves, and we are so proud of him for his outstanding accomplishments and dedication in his career and in his service to others,” said Lisa Kloppenberg, dean of Santa Clara Law.

A DA M HAY S

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anta Clara University gives Alumni Awards annually to honor and publicly recognize individuals who have given distinguished service to the Alumni Association, the University, and their community. This year’s recipient of the Ignatian Award is Andy Kryder BSC/B.A. ’74, J.D./ MBA ’77.

In Dunne Hall, where he spent three years of his undergraduate years at SCU, Kryder was known for his food.

Using a rogue rice cooker, he prepared ramen, hot dogs, and other dorm room delicacies for his hall.

After earning his B.A., he was one of the first to enroll in a new joint J.D./ MBA program offered at SCU. Kryder then began his career at Arthur Young, later advancing to tax partner. In 1990, he joined Quantum, where he became general counsel and vice president, and in 2000, he became senior vice president, general counsel, and company secretary for NetApp. But despite a very busy professional life, he looked to serve others whenever he could.

In the 1990s, Andy’s wife, Joselle, introduced him to Rebuilding Together, a nonprofit helping low income and elderly homeowners in Silicon Valley.

For more than 20 years, Kryder volunteered as a house captain, raising money and assisting with construction on nearly 50 homes.

In 2008, Kryder joined the board of JW House at the Kaiser Permanente Santa Clara Medical Center, and during his 6 years on the board, he helped raise $5 million in operating funds. Over the years, JW House has served more than 2,000 families by providing a close and comfortable place to live during extended hospital stays.

He has also supported the Junior League of Santa Jose, volunteered at Villa Montalvo Arts Center, and raised more than $800,000 through the American Cancer Society’s Walkathon.

Kryder joined the Santa Clara Law Board of Fellows in 2011 and now serves on the Executive Committee of the

Andy Kryder BSC/B.A. ’74, J.D./MBA ’77, is the 2017 recipient of the Santa Clara University Ignatian Award for service to others.

Justice Delayed, Not Denied

PA I G E K A N E B

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anta Clara University School of Law’s Northern California Innocence Project team has won a client exoneration, using a law they helped make happen.

Ed Easley is an innocent man, wrongfully convicted of molesting a seven-year-old girl. The girl later recanted, tearfully telling a judge her mom had forced her to accuse Easley to protect another. And the actual guilty party ultimately made admissions on the stand.

Yet at the time, Easley pleaded guilty to avoid the terrifying prospect of a jury verdict that could result in 35 years in prison.

In an ideal world, Easley would have been exonerated. He would not have served five years in prison and had to register as a sex offender for the rest of his life. He would not have had to camp out for long stretches because he couldn’t find housing due to his sex offender label. And he would not have had to turn down jobs as an electrician just because a client has kids.

But this is not an ideal world.

Easley went to court no fewer than six times in the past 10 years, trying to get his conviction reversed. He was denied four times. The biggest problem: the law did not allow for the new evidence of his innocence which could clear his name or win his release before he served his full sentence.

So as the years went on, his lawyers from Santa Clara University School of Law’s Northern California Innocence Project (NCIP) kept believing in his case and kept working on changes in the law. Last year, two new laws were passed with NCIP support which radically changed Easley’s chances of finding justice. SB 1134 and AB 813 might as well have been called the Ed Easley Needs Justice Act, Parts I and II. One new law, AB 813 (Gonzalez), enables people who have already been released from custody to prove their

Ed Easley, center, pictured with the Northern California Innocence Project (NCIP) lawyers who helped him clear his name more than 24 years after being wrongly accused and serving a cumulative eight years in prison. At left is Paige Kaneb, and at right is Linda Starr, both of Santa Clara University School of Law’s NCIP.

innocence. It changes the all-important “standing” requirement—one of Easley’s big stumbling blocks.

The other new law, SB 1134 (LenoAnderson), made a huge change in the standard for the introduction of new evidence to prove innocence. The change did away with the need for such evidence to “point unerringly to innocence” in order to reverse a conviction—a standard which was so high it was virtually unattainable. Instead, the new law says if it’s “more likely than not” that new evidence would have made a difference in the original trial, a decision can be reversed.

“The new standard is a gamechanger,” exults Linda Starr, NCIP’s director, who had Easley in mind when NCIP fought for two years for the new “more likely than not” standard.

So, for the sixth time in seven years, Starr, NCIP co-counsel Paige Kaneb, and Easley headed to court, armed with these two new laws that brought Easley fresh hope.

At a hearing, NCIP persuaded the judge that the new “more likely than not” law applied to Easley. Moreover, they said the judge was legally bound to consider the fact that Judge Halpin had already declared—several denials ago—

that Easley’s fresh evidence of innocence would “more likely than not” have affected the outcome of his first trial. So under the new law, NCIP argued that he was entitled to have his verdict vacated.

The judge found that persuasive, but asked the DA to respond, setting a hearing for August 31.

The legal term for being bound by Judge Halpin’s court ruling would be “collateral estoppel.”

On Thursday, August 31, Easley got that all-important collateral estoppel, with the DA’s agreement and a dismissal of charges.

That means his conviction—which has been ordered upheld no fewer than four times—has finally been vacated.

He can stop registering wrongly as a sex offender. He can find a home, take those electrical jobs and most importantly, he can truly start to recover.

“It took 24 years, but the truth finally came out,” said attorney Kaneb.

“At least two people were overcome with relief by the news: Easley, whose name will now be cleared, and the victim herself, whose conscience can now be cleared. Sometimes justice delayed is not, fortunately, justice denied.”

—DEBORAH LOHSE

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LAW BRIEFS

C H AR L ES B AR RY

2017 Law Commencement

One of Santa Clara Law’s most distinguished graduates, Leon Panetta B.A '60, J.D. '63, was this year’s Law Commencement Speaker. After spending 16 years in the U.S. House of Representatives, Panetta served the White House as director of the Office of Management and Budget (1993-4) and White House chief of staff (1994-7). In 1997, with his wife, Sylvia, he established The Panetta Institute for Public Policy. He later served as director of the Central Intelligence Agency (2009-11) and U.S. Secretary of Defense (2011-13).

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aying our nation is “at a crossroads,” former United States Secretary of Defense Leon Edward Panetta B.A. ’60, J.D. ’63 told the Santa Clara University School of Law Class of 2017 that democracy will mean nothing if Americans aren’t willing to fight for the rule of law.

Panetta addressed the more than 180 graduates and their family and friends at Santa Clara Law’s commencement ceremony, which was held May 20 in the Mission Gardens.

He said America could go one of two ways: an “America in Renaissance”— building on our technological and defense leadership—or “America in decline,” careening from crisis to crisis amid eroding trust in democratic institutions due to fears, prejudices, and political attacks.

“The story of the last election was the story of lost trust, angry voters who 8 SANTA CLARA LAW | FALL 2017

felt that no one in Washington, no political party, was working to deal with the problems they were facing,” he said.

He said such divisions are surmountable, but “you cannot be a good leader or a good citizen if you do not respect our Constitution and the institutions responsible for enforcing the requirements of that sacred document.”

Panetta is the son of immigrants, and he told of how his parents traveled thousands of miles to give their children a better life. “We are a nation that builds bridges, not walls,” he said. “And most of all, we need to respect the truth.”

Panetta’s 50-year career included two years each as secretary of defense and CIA director, as well as eight terms in Congress. He is currently chairman of the Panetta Institute for Public Policy, a nonpartisan, not-for-profit study center seeking to attract thoughtful men and women to lives of public service and

prepare them for the policy challenges of the future.

During his speech, Panetta said law students who work with the Panetta Institute learn “what it takes to find consensus on issues, which is heart and soul of the legislative process, and frankly has become a lost art in Washington.”

Panetta was a member of the University’s ROTC program while at SCU, and he later taught a political science course in the College of Arts and Sciences for years, and served on SCU’s Board of Trustees from 1988 to 2009.

Of the 181 graduates receiving J.D. or LL.M. degrees, 35 received certificates in various areas of high tech law; another 13 received certificates in public interest and social justice law; four specialized in international law and three in privacy law.

—DEBORAH LOHSE

Class of 2017 Outstanding Graduates

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From left, four members of Santa Clara Law's Class of 2017 received outstanding honors at graduation: Brish Miller, Jenna Bailey, Carlos Barba, and Ariel Siner.

ADAM H AY S

anta Clara Law honored several outstanding graduates at a special celebration on the evening before commencement. Brish Miller won the inaugural John B. Bates Jr. Dispute Resolution Award for coursework, publications, performance, and service related to the field of dispute resolution.

Jenna Bailey received the Inez Mabie Award for the Outstanding Graduate based on academic performance, scholarly activities, leadership, and service roles at the law school and in the community. Carlos Barba received the Dean’s Outstanding Student Leadership Award for exemplifying the school’s motto of “lawyers who lead” and serving other students, the school, and community. Ariel Siner received the 2017 American Law Institute award for outstanding scholarship and leadership.

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anta Clara University School of Law welcomes back to campus Rupa Bhandari J.D. ’05, as the new assistant dean for the Office of Career Management (OCM) and an adjunct law professor. “I have always had a passion for supporting students in their careers, and I am so excited to help the students at my alma mater,” says Bhandari. “The OCM team here is very dedicated. I am also looking forward to the new Critical Lawyering Skills class, for which I will be one of the instructors.”

After graduating from Santa Clara Law in 2005, Bhandari practiced at a mid-sized litigation firm in health law and employment law. While she enjoyed litigation, her favorite part was mentoring the 2L summer associates and working with the diversity committee to cre-

ate a law school pipeline program. She then joined a small start-up firm before moving to higher education in 2008.

For 3 years she worked as the associate director for Career Development at U.C. Hastings College of the Law, and then worked in Student Services first as the director and then as the assistant dean.

While there she collaborated with other faculty and administrators to create a professional development curriculum for the 1Ls that included a written professional development plan and a coaching meeting to debrief the written plan. In 2011, students voted her Administrator of the Year in and in 2017 she was recognized for Outstanding Contributions to the U.C. Hastings Community, with Distinction.

Besides being an alumna, Bhandari has other ties to Santa Clara Law: She

CO URTE S Y O F R UPA B HA ND A RI J .D . ’ 05

Alumna Joins Office of Career Management

met her husband, Sameer Khedekar J.D. ’03, an immigration attorney, in law school, and they have two children. law.scu.edu/careers FALL 2017 | SANTA CLARA LAW

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LAW BRIEFS

Farewell to Four Teaching Scholars A Spotlight on Faculty Members Who Retired in 2017

12 YEARS

A member of the Law School faculty since 2005, David Friedman is an academic economist and a widely published scholar and author of books on price theory, economic analysis of law, implications of future technology, and libertarian economics and philosophy, as well as two novels. He holds a B.S. from Harvard University, and an M.S. and Ph.D. from the University of Chicago.

“I got into economic analysis of law when I read an exchange between two prominent economists and two prominent law professors on a topic that interested me, and I wrote and published two articles on the subject,” Friedman says.

He ended up at Santa Clara, he says, after hearing a talk “by someone interesting in the economics department.” When he learned that SCU was interested in finding someone in law and

STEPHANIE M. WILDMAN 16 YEARS

A member of the Santa Clara Law faculty since 2001, Professor Stephanie Wildman served as the John A. and Elizabeth H. Sutro Professor of Law and the director of the Center for Social Justice and Public Service. Wildman is a well-known scholar in the areas of social justice, race, gender, and the law. She holds an A.B in humanities and a J.D., both from Stanford University.

Prior to joining the Santa Clara Law faculty, Wildman taught for 25 years at the University of San Francisco School of Law, where she is a professor emerita. She also was a visiting professor at several other law schools. Before entering academia, she clerked for Judge Charles M. Merrill of the United States Court of Appeal for the Ninth Circuit and worked as a staff attorney for California Rural Legal Assistance (CRLA).

When Wildman was looking at graduate school in the 1970s, it was “a time of protest and social change,” she says, adding “I didn’t much like demonstrations, but I thought I could help people by being a lawyer.” One significant case she recalls is from her days at CRLA. “I represented a Native American woman who was battling to retain custody of her 10 SANTA CLARA LAW | FALL 2017

economics, he applied and made the move. Previously, he had taught at Virginia Polytechnic Institute, U.C. Irvine, Cornell, Tulane, UCLA, the University of Pennsylvania, Columbia University, and the University of Chicago.

In retirement, Friedman will “teach an occasional class as an emeritus, continue writing and publishing books, travel, and do public speaking. Next year,” he added, “I have plans for speaking trips to Eastern Europe, China, Brazil, and Iceland.”

children,” Wildman says.

“This was before the era with greater awareness that Native American children had long been targets to be separated from their parents. We were able to secure her parental rights and help her to improve her household​with donated items.”

As for her time at Santa Clara Law, Wildman says she is grateful for what she calls “the gift of being able to teach students.”

“The students are the best part of any law school, and Santa Clara is no exception,” says Wildman, adding that she will also miss her “wonderful colleagues.”

Wildman resists the word “retirement.” “I am becoming a professor emerita,” she explains. “I plan to keep writing as well as looking for other ways to make my voice heard,” she says, adding that she is also looking forward to spending more time with her grandchildren.

KE ITH S UT T ER

DAVID D. FRIEDMAN

K EI T H S U T T ER

BY ELIZABETH KELLEY GILLOGLY B.A. ’93

Kandis Scott joined the Law School in 1977 and has been involved locally and nationally in clinical legal education with the American Bar Association and the Association of American Law Schools. She holds a B.A. from Cornell University and a J.D. from Stanford University.

Scott recalls one of the more significant cases in her career in which she represented a group of poor seniors living in New York City in an apartment building that had been bought and was slated for demolition. “Unfortunately the clients didn’t find me until a default judgment had been entered against them,” she recalls. “This began my running for a series of restraining orders to keep my clients housed. Eventually I reached the highest court in New York and asked a judge to restrain the evictions for the summer, until the full court was in session.

He denied the order but understood when I asked him to be present as I negotiated with the landlord’s attorney for time to move. The other lawyer had to be reasonable in front of a judge. This all arose at a time of political protest. The finale of the case was a bunch of Columbia students marching in front

ROBERT W. PETERSON 47 YEARS

Robert Peterson, who joined the Law School in 1970, held several leadership roles over the nearly five decades he served here, including director of graduate legal programs and associate dean of academic affairs. He spent many summers directing Santa Clara Law’s summer abroad programs in Oxford, Toyko, and Costa Rica. He earned his J.D. from Stanford and his B.A. from San Diego State University.

Over the course of his career, he has been involved in numerous cases, “some frustrating and many satisfying,” he says. “The most satisfactory one was in 1973, when I handled a habeas corpus case for a young man who had been too poor to post bail prior to his conviction. The California Court of Appeal held that it was unconstitutional to fail to count this time served on the ultimate sentence. Otherwise the poor would spend more time incarcerated than the wealthy. I am pleased that this issue has resurfaced today in challenges to the

of TV cameras alongside my elderly clients,” she says.

Scott came to Santa Clara Law after Richard Rykoff, a faculty member at the time, called her about a part-time job supervising students. “I had been doing legal services work, and I was ready for a new challenge. It was perfect—working with students who represented the poor.”

Scott says she enjoyed working with students because, she says, “they are so optimistic.”

“After practicing law for a number of years,” Scott says, “I began to accept the fact that I would lose cases I should win and win cases I should lose. That adds a bit of reality or even cynicism to one’s life. But students don’t suffer those downers.

They are confident.”

money bail system in general. It is invidious to incarcerate the poor—many of whom are innocent—simply because they are poor.”

Peterson says he has greatly enjoyed his “colleagues and the intellectual stimulation of participating in such a special place and environment.”

Law is a “great field,” Peterson advises future lawyers. “Lawyers are good company, and you will never be bored,” he says.

After retirement, Peterson says he plans to keep working in the field of self-driving and driverless cars. “I hope to be the oldest person to ever ride in one,” he says.

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K EI T H S U T T ER

40 YEARS

KE ITH S UT T ER

KANDIS V. SCOTT

CAMPAIGN UPDATE

Major Gift Expands Student Opportunities For Public Interest Work and staff counsel and economic development specialist, National Housing and Economic Development Law Center in Berkeley. He earned his B.A. and his J.D. from the University of Michigan.

“We are so grateful for this generous gift from Richard and Madé, and we are excited that it will enable more Santa Clara Law students to experience the life-changing opportunities offered by public interest work,” said Santa Clara Law Dean Lisa Kloppenberg. “Richard was a leader in social justice and public interest programs during his many decades of service and teaching at the Law School, and this gift will leave an incredible legacy of his passion to serve others.”

“Social justice is probably the most important aspect of law,” says Berg.

“Lawyers inherently have a lot of power in our society, and they can use that power to do good. Over the course of their careers, they will be presented with many opportunities, and if they use those opportunities properly with social justice in mind, a tremendous amount of good can come from it.”

Berg says he remembers having a strong interest in social justice ever since he was a boy, and “that interest was sparked

by President Kennedy, the Civil Rights movement, and the Vietnam War, and it kept growing,” he says.

After graduating from law school in 1968, Berg lived in Berkeley until 1973, where he was already working with legal services. “As a young lawyer, I worked on jail reform in federal courts, education issues such as S TUD IO KY K

Richard P. Berg, professor emeritus, and his wife, Madé, have made a $500,000 gift to Santa Clara Law to establish the Richard P. and Madé S. Berg Social Justice Public Interest Endowment Fund, which will award civil summer grants to Santa Clara Law students.

Berg taught at Santa Clara Law from 1973-2004, and his classes included public interest practice, dispute resolution, mediation, and civil procedure. Berg was instrumental in shaping the social justice curriculum and events at the Law School today, and during his tenure on campus, he was an active member of the Board for the Center for Social Justice, as well as a major advocate and supporter of the student summer grants program.

Before coming to Santa Clara, Berg was an associate in law at U.C. Berkeley School of Law (Boalt Hall), a Reginald Heber Smith Fellow in Poverty Law,

Richard P. Berg, professor emeritus, and his wife, Madé, in their Santa Cruz garden.

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corporal punishment in public schools, and health issues for poor folks—I was particularly fond of that work.”

Berg describes this gift as “a legacy for myself and my wife.” In his time at the Law School working with public interest programs, he explains, “I saw that the summer internships changed lives. I was shocked at how powerful it was. These were students who had strong social justice interests going in, but working with actual clients and cases changed what they felt they could do as lawyers.”

When he was considering a gift to the law school, he says, “I thought: What is the maximum bang for the buck? We can set loose these lawyers who have several months to work on these public interest issues and forever change their lives. This would have a fabulous impact.” The summer grants are expected to begin being distributed in 2018.

“Public interest is a state of mind put into practice,” says Berg. “Once you are thinking about broader social justice [but] also focus on how it impacts those who are underrepresented or people in need, then you will have an opportunity to further the public interest. This is all about solidifying that public interest state of mind,” he adds. “I realize that not all of these students are going to have an inherent public interest job.

But a public interest state of mind will change their lives, and they will have many opportunities to serve in one way or another.”

Berg added: “I hope this gift stimulates and inspires others to make additional gifts to the endowment, especially my former students and those who are previous recipients of summer grants.”

—ELIZABETH K. GILLOGLY B.A. ’93

John Bates Jr. J.D. ’74, one of the pioneers in the field of conflict resolution and a mediator at JAMS in San Francisco, has made a substantial gift to Santa Clara Law to support education in mediation and conflict resolution.

Bates has been practicing since 1974. He started at Cooley LLP, where he was a litigation partner. At the end of 1990, he left to form a mediation and arbitration firm with Bruce Edwards, which became known as Endispute and had 12 offices nationally. In 1994, it combined with JAMS to expand to 24 offices. Bates has mediated several thousand matters across the United States. He has conducted more than 100 lectures and trainings on mediation and published many articles on the subject. He has received many honors and awards, including the 2016 National Law Journal’s ADR Champion.

“Thanks to Santa Clara Law, I’ve been able to make a career in mediation,” says Bates. “My wife and I have made this gift to enable the school to become a magnet for Silicon Valley business and legal leaders who want to learn how to approach conflict in innovative ways in order to find solutions. To that end, Dean Kloppenberg has assembled an accomplished group of faculty, students, and practitioners to conduct trainings, classes, and related activities. Our hope is that this effort will raise the profile of the entire school and the community as innovators of conflict resolution and promoters of civility and respect for all,” he says.

Bates’ gift has enabled the Law School to create a new position, director of conflict resolution programming, and the first to hold this post is Dana Curtis J.D. ’87, who joined the Law School earlier this year. A recognized leader in the conflict resolution field, Curtis has devoted her career exclusively

A DAM H AY S

Generous Donor Supports Enhanced Conflict Resolution Programming

John Bates Jr. J.D. ’74, right, congratulates 2017 Santa Clara Law graduate Brish Miller who received the first John B. Bates Jr. Dispute Resolution Award.

“We are so grateful to John for his generosity and vision that will enable Santa Clara Law to better educate students in this critical field of conflict resolution,” says Lisa Kloppenberg, dean. to mediation, beginning her full-time practice in 1991. Since serving for four years as a circuit mediator on staff with the U.S. Court of Appeals for the Ninth Circuit, she has maintained a successful Sausalito-based mediation practice. Also a respected mediation teacher, Curtis has designed and facilitated hundreds of programs for law schools (including Santa Clara Law, Stanford, and Harvard), businesses, court panels, private groups, bar associations, and professional conferences throughout the United States and internationally.

In her new role at Santa Clara Law, Curtis will work with students, faculty, alumni, practitioners, and community

members to help plan and coordinate a rich array of dispute resolution events.

She will also help foster appreciation of the theory and skills of dispute resolution through classes, externships, clinics, competitions, workshops, conferences, and faculty scholarship. (To read an essay

by Curtis, see page 32.)

Bates’ gift has also created the John B. Bates Jr. Dispute Resolution Award, an award for graduating Santa Clara Law students in recognition of the student’s coursework, publications, performance, and service related to the field of dispute resolution. The inaugural award was given this year to Brish Miller (see photo).

“We are so grateful to John for his generosity and vision that will enable Santa Clara Law to better educate students in this critical field of conflict resolution,” says Lisa Kloppenberg, dean. “John is a leader in his field, and we appreciate his wisdom and guidance as we utilize his gift to create a robust, nationally recognized program in mediation at Santa Clara.”

—ELIZABETH K. GILLOGLY B.A. ’93

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caption to come 14 SANTA CLARA LAW | FALL 2017

ATTORNEY FOR PLANET EARTH Is Climate Change Violating the Rights of the Youngest Generation?

Q&A BY DEBORAH LOHSE

LE O LINTA NG/S HUTT ER S T OCK . CO M

As the current U.S leadership takes steps like pulling out of the Paris climate accords, purging data from the Environmental Protection Agency site, and discussing opening federal lands to oil drilling, one Santa Clara Law alumnus, Phil Gregory J.D./MBA ’80, is tackling climate change in a big way.

Gregory is co-lead counsel on a novel environmental lawsuit against nearly two dozen federal agencies, alleging that their collective failure to combat climate change has threatened the constitutional rights of future generations. Environmentalists have dubbed it “the most important lawsuit on the planet.”

The case, Juliana v. United States, is scheduled for trial on Feb. 5, 2018, in federal court in Eugene, OR, provided it overcomes a startling writ of mandamus to the Ninth Circuit Court of Appeals filed by the Trump Administration, which inherited the lawsuit as a defendant in the case filed in 2015.

The case centers on an allegation that plaintiffs—largely a group of 21 children ranging in age from 10 to 21—have been denied their due process rights to life, liberty, and property at the hands of the federal government. They accuse agencies of failing to act on knowledge—dating back decades—that fossil fuels cause dangerous levels of carbon dioxide in the atmosphere. They are seeking remedies to planet-threatening accumulations of CO2, such as cessation of fossil fuel subsidies and a national plan to reduce emissions.

Phil Gregory recently discussed the case with Santa Clara Law magazine.

How Is This Case Unique?

The Juliana case, filed in 2015, will present climate science in the courts correlated to the impacts people now face and the short time left to seek meaningful remedies.

Also, the claims in Juliana are brought under the Constitution and the Public Trust Doctrine. A number of cases

in the environmental field are brought under the Administrative Procedures Act. In those cases, you proceed as if the regulation, or the government action, runs afoul of a particular statute— the Endangered Species Act, or the Clean Air Act, or the Clean Water Act. And you “silo” it. It’s an action by a particular agency of the federal government that runs afoul of a particular statute or regulation. So it’s very, very specific. Our case isn’t like that at all.

Our case is that our federal government, government-wide, has known for decades that the fossil fuel system was going to cause problems for these children as well as future generations.

They’ve known that. I can show you reports. I’ve got one here in 1977 where the National Academy of Sciences is telling the federal government that the potential consequences are extreme.

They’re catastrophic. These and many other studies, another is a 1989 EPA report to Congress, say that children—future generations—are going to face a massive crisis if we don’t do anything right now.

Let’s say we weren’t talking about climate. Let’s say we were talking about fascism. Let’s say we were talking about communism. This federal government, historically, mobilized against those issues. All the resources of the federal government were taken up in opposing the spread of fascism in the fight that was World War II. And we prevailed. Or let’s say the federal government had decided that we’re no longer going to tolerate discrimination based on race, gender, whatever. The federal government has mobilized all its resources against further spread of those problems. We’ve known—again, for decades—that we’re facing a massive problem. And from a practical standpoint, nothing’s been done about it. Meanwhile, the situation has gotten dramatically worse, to the point—the precise point—where they said in 1977 we would be if we did nothing.

It’s not that the foundation of climate science is any more certain now than it was 40 years ago. It’s been settled for a FALL 2017 | SANTA CLARA LAW

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How Do You Litigate This?

Well, first our climate kids could go to Congress, but we know Congress is going to do nothing. Or our plaintiffs could go to the executive branch, but we know this president and his team are not going to do anything. So the only resort is the courts.

But climate isn’t an issue that can be siloed. It’s not one power plant that’s the problem. It’s not one pipeline that’s the problem.

It’s the system. It’s the delivery of energy through fossil fuels, not only in the U.S., but to foreign countries. You talk about all the fossil fuels that we’re exporting to China. We’re a huge exporter of these. So in other words, we’re not only worsening our own problem, we’re seriously worsening problems in other countries.

In short, we are running out of time.

So the issue is, from a litigation perspective, how do you take that on? Well, the only overarching document, we believe, is the Constitution. And so we’ve focused this case on how to bring a constitutional claim as a result of the climate crisis. We’ve looked at other social justice cases like this, such as gay marriage, and spoken with those attorneys. A case that went on trial here in the Northern District of California, Perry v. Schwarzenegger, tried before Judge Vaughn Walker in federal court was a Constitutional case that was of Constitutional dimensions.

long time, but the impacts are here, not just projected. In fact, the basic science of fossil fuel CO2 emissions increasing global CO2 levels, which causes climate change, has been understood for more than a century. Even the founding fathers understood that the global climate could be impacted by deforestation and the destruction of soils as well as industrialization. What has developed over time is not the certainty that climate change would be catastrophic if left unchecked, but the greater scientific certainty in projecting when certain impacts will occur.

For a long time now, scientists have not questioned whether the harm would occur, but rather how quickly, and they have largely underestimated how quickly it would begin to happen.

Their scientific forecasts have all come true. I’m not going to go into the doom and gloom that we all know is currently out there, whether it’s the ice sheets or the coral reefs or the agriculture issues. But it’s a systemic problem.

How do we prove that these defendants had a role in causing climate change? We have experts like renowned climatologist Dr. James E. Hansen who are showing that the actions taken by the federal government are directly or indirectly responsible for that.

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CO D Y P ICKE NS

Phil Gregory J.D./MBA ’80 is co-lead counsel on an environmental lawsuit that some are calling the most important lawsuit on the planet.

How Did Perry v. Schwarzenegger Inform This Case?

As with the issue of the right to gay marriage, the key issue in our case is related: How do you bring this large-scale problem into the court so that the judge feels that he or she can grasp the problem, understand the problem, and remedy the problem? And so what we’ve done is we’ve tried to compartmentalize how we’re going to try this case.

We’ve got our plaintiffs who are young kids who are suffering injuries. We’ve got Jayden in Louisiana who woke up one morning, rolled out of bed, and stepped into climate change when her home was flooded. She lives in Rayne, Louisiana, near Baton Rouge, where she was experiencing her second once-in-athousand-year flood in three years. So the point is these kids are suffering serious injuries. Levi, another one of our plaintiffs, lived on an island in Florida where he could see, by virtue of the sea level rise, his beach going away. It was obvious. So these kids are experiencing climate change directly, and being affected by that.

Then we turn to the issue for proof purposes of causation.

Well, how do we prove that these defendants had a role in causing climate change? We have experts like renowned climatologist Dr. James E. Hansen who are showing that the actions taken by the federal government are directly or indirectly responsible for that.

How Is Juliana Akin to Civil Rights Cases?

Let me give you an analogy. Another line of cases similar to ours is the civil rights cases. A classic example is where you had a municipality in the South owning a garage. Anybody could park in that garage, but the municipality leased or licensed property to a diner, to a restaurant. And that restaurant engaged in segregation, and the municipality knew the restaurant engaged in segregation. The municipality was responsible for a civil rights violation by enabling the segregation to occur in the restaurant.

Well, we have the same thing here. As everybody knows, our federal government leases federal lands for fossil fuels, coal being an obvious example. And the amount of money the federal government receives for the coal lease is a mere pittance compared with what it costs our society to deal with the effects of burnt coal, or what we call the social cost of carbon.

Our evidence shows the judge that our federal government has enabled the fossil fuel system to flourish. It continues to enable it—through subsidies, through leases and the like—along with itself being a major emitter of fossil fuels. So we’ve got causation; we’re going to show that.

What About Redressability?

Finally, we have to show the court what it can do about the situation—redressability. Two obvious model approaches are school busing and prison overcrowding. In the busing cases, the court set targets or goals of what the schools had to achieve by way of integration, and then required the school district or agency to propose a plan that achieved those goals. That started through the second Brown v. Board of Education decision. It was not the job of the court itself to develop the plan, but to set the target and for the agency or district to develop and implement the plan once it been approved by the court. The other example is California prison overcrowding. California prisons were overcrowded to the tune of over 200 percent. The prisoners went to court and succeeded: The court set a target and told the California prison system, “You have to get to that target or we, the court, are going to start releasing prisoners.” And so the court didn’t spell out the plan to reach the target; it set the target and had the prison system develop the plan.

What we are asking the court to do is to find the appropriate target. So, for example, zero fossil fuel emissions by a certain date. Or 350 parts per million—whatever the target or goal is that the court sets—and then have the court turn to these defendants and say, “Given the urgency of the situation”— just like in Brown, just like in the prison cases I talked about—“you have to develop a plan. You submit it to me within a certain time frame, and I, the judge, will review that plan. And if it’s appropriate, if I believe it’s going to reach the goal or target I’ve set, then you have to implement that plan promptly, particularly given the urgency to these kids and future generations.”

How Will Expert Testimony Be Part of the Case?

So our aim in trying this case is to focus on injury, causation, and redressability. We’re going to do that in an overarching way by putting the science before the court. We’re going to have the most prominent experts in their various fields explain to the court, “This is what’s occurring on the ice sheets, this is what’s occurring with the coral reefs, this is what the federal government is doing or not doing.” And from a scientific perspective, they’re also going to show that we can achieve an energy system in the near future that has minimal fossil fuel emissions, and then certainly by 2050, no fossil fuel emissions, if not sooner.

We are working with top scientists and other experts around the country and globally, including several Nobel laureates. The evidence we present at trial will more than support a

victory for our plaintiffs. At this time, our expert testimony is not yet public, but our complaint, and Dr. Hansen’s accompanying declaration, lays out the core science. Read it online here: www.ourchildrenstrust.org/us/federal-lawsuit/.

The point is our country can achieve these goals. California is an example of a political body working hard to get to these goals. Various other states and cities are working to get to these goals. The only political entity of any weight that’s, let’s call it, holding back, is the federal government. And it’s going to take this judge to force that federal government to confront reality and implement a plan. We believe a trial and a judgment can be issued within the first six months of 2018.

We then hope that the judge will set a very short time fuse for the government to develop its plan. Historically—everybody knows this, but I want to make clear—the federal government has an inventory of how bad its emissions, directly or indirectly, are. They have that inventory. The data is all there. And so the judge can say, “Okay, here’s the baseline. This is what the data shows. This is where we are.” Once we have that inventory, a baseline, our case will be just like in the prison cases. We know how many prisoners are in the California prison system, or we know what the student population is in these school district cases. Now what we need to do is figure out how to move them around, so the situation is, from a Constitutional basis, no longer presenting a crisis. And that’s a decision we believe the court can issue.

Not only does the federal government have an inventory, by the way, but they have plans which have existed over time, since certainly the ’80s, of federally developed policy options that could be implemented. Now the technology’s gotten better.

People are now moving to rooftop solar, electric cars—those are common occurrences. Well, the federal government could work to enhance those opportunities, but it isn’t right now; in fact, it’s backsliding on all of that. So we want the judge to issue an order where not only will there be a plan, but there’ll be implementation of the plan. And that will occur.

What Is Your Appeal Strategy?

Obviously, we’re going to face the next question: What do we do when our judgment is appealed, first to the Ninth Circuit and then to the United States Supreme Court?

Well, we’re basing our case on constitutional principles where there’s a lot of authority in other areas. That way we’re asking the District Court here to address it—in a similar way as other cases once the injury has been shown, where the federal government has caused or created the injury. So we believe that this case is grounded in a great deal of Supreme Court and Ninth Circuit precedent. Rather than a new case with new law, it’s actually grounded in the precedent of civil rights cases and various decisions where Constitutional rights were violated.

And importantly, we’re not seeking damages here. We’re not seeking any money. We’re seeking purely equitable relief.

We believe that the District Court will frame an order that the judge believes is not only proper but will stand up on appeal. That’s the case we’re putting together for trial on February 5.

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PATENT PATROL Two Santa Clara Law professors are among the most active academics exploring the problems in today’s patent system

BY DEBORAH LOHSE

IST O CK. CO M/ GIII

Some believe companies that buy up patents in order to squeeze royalties from infringers are serving an essential function in the patent world— providing liquidity to innovators.

But others say such companies are a dangerous drag on innovation, especially “patent trolls,” nonpracticing companies that buy up often-dubious patents and aggressively assert them in dozens or even hundreds of suits that generally settle for less than the cost of mounting even the slightest defense.

The battle to understand, quantify, and improve the patent system— including its “trolls”—has been led by two of academia’s brightest stars.

TROLL TALES Starting a decade ago, Santa Clara Law Associate Professor Colleen V. Chien would tell people she was a patent law professor, and she would be surprised by their strong reaction.

Everyone, it seemed, had a story about how their company had been pursued by aggressive companies demanding royalties for patents the accused company was unaware of. In some cases, they paid up just to make the case go away—sort of like paying the troll under the bridge in a fairy tale.

“It was striking that, whether I was talking to someone at a startup, VC firm, or larger company, the story was the same. Some startups and small companies that couldn’t afford a lawyer were getting patent demands out of the blue and didn’t know what to do about it,” recalls Chien. That experience troubled her so much that it set her on a years-long quest to empirically study and document patent litigation trends—including the behavior of companies known colloquially as patent trolls, for which she would later coin the term “patent assertion entities” or PAEs. The phrase PAEs, in fact—first used in her influential law journal article “From Arms Race to Marketplace”—would be later adopted into law and become widely used by policymakers and in general parlance.

At about the same time, Assistant Professor Brian J. Love was having his own troll “aha moment,” working as a patent litigator in Dallas defending companies sued for patent infringement.

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FIRST, ASSESS THE DAMAGES His first scholarly works, though, weren’t on trolls, but on another hot topic of the time: how litigation damages should be apportioned in technology patent disputes. With high-tech companies amassing huge numbers of patents and new devices often incorporating many thousands of patented technologies, the question arose: how much money can any one patent holder demand if they prove infringement?

“When I was considering academia, scholars were starting to grapple with problems created by the mismatch between the complexity of modern technology and the fact that many patent law doctrines seem to assume a ‘one patent to one product’ ratio,” he said. “This tension was particularly apparent in the context of remedies.

The way damages were calculated often gave patentees a piece of the pie that was much larger than their incremental contribution to the product.”

Love has since spent years studying the topic of complex product damages. His work has been cited well over 100 times in the academic literature, as well as in key 2010 reports from the Department of Justice and the Congressional Research Service.

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When the Apple vs. Samsung Electronics Co. case exploded into the public consciousness— especially when a jury awarded Apple more than $1 billion in damages for Samsung’s use of certain patented technology —Love was quoted explaining the case in dozens of stories in The New York Times, Reuters, CNN, and countless others. In an op-ed in the Los Angeles Times, he criticized the verdict, noting that if each of the 250,000 individually patented technologies in a Samsung phone were to be valued in the same way by the patent system, Samsung would have to charge $2 million per phone “just to break even.”

But he never stopped working on the problem that had driven him to academia, trolls.

If each of the 250,000 individually patented technologies in a Samsung phone were to be valued in the same way by the patent system, Samsung would have to charge $2 million per phone “just to break even.”

— SANTA CLARA LAW ASSISTANT PROFESSOR BRIAN LOVE

In 2013, he co-wrote an op-ed titled “Tax the Patent Trolls” in USA Today, arguing that making patent trolls pay more for the patents they scoop up on the cheap, and requiring them to pay legal fees if they lose their claim of infringement, would slow nuisance-value patent assertion. He based the piece in part on research conducted with SCU Economics Professor Christian Helmers, analyzing why the UK has so many fewer patent trolls than the United States.

HEADFIRST INTO THE BIGGEST PATENT PROBLEMS Both Chien and Love have been among the most active academics studying the patent system’s most persistently nettlesome problems. Each has written dozens of scholarly papers and opinion articles in the national press, and contributed to numerous bills attempting to reform the complex and problem-plagued U.S. patent system.

Among their prolific areas of study: • Startups and Patent Demands: studying the toll imposed by patent demands on small, young companies

KE IT H S UTT E R

He noticed a strange preponderance of cases being brought in certain East Texas towns, especially Tyler and Marshall—not far from where he grew up—in a part of the country better known for annual fire ant and rose festivals than for any patent-worthy innovations. Turns out, he was practicing just across the border from the “Planet of the Patent Trolls”—the Eastern District of Texas—so named by a local law journal because trolls considered it to be a mighty favorable place to file their lawsuits.

Love’s research nearly a decade later would help change the rules for the Eastern District as a venue for trolls. But at the time, “innovative companies were spending lots of money to defend cases brought by entities that had purchased very broad patents, which never should have been issued in the first place,” Love recalls. He felt he had to choose sides—part of the problem, or part of the solution.

“I felt that by litigating patent cases I was indirectly contributing to the problem,” he said.

“Because patent litigators of all stripes were benefitting financially from the explosion of suits, it seemed like solutions were most likely to come from outside the patent bar.”

So Love moved into academia.

ASSISTANT PROFESSOR BRIAN LOVE has spent years studying the topic of complex product damages. His work has been cited well over 100 times in the academic literature, as well as in key reports from the Department of Justice and the Congressional Research Service.

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ASSOCIATE PROFESSOR COLLEEN CHIEN served in the White House Office of Science and Technology Policy as a senior advisor on tech and innovation to the chief technology officer. She was the first specialized IP senior adviser to hold such a role.

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K EIT H S UT TE R

• Venue: or how to ensure that patent courts don’t favor one side or another • Comparative Patent Quality: lessons for the U.S. from patent law in other countries • Inter Partes Review: the true effect of Congress’s 2011 decision to allow the patent office to re-review disputed patents for improper issuance, including whether it is succeeding in culling low-quality patents that shouldn’t have been granted • Patent Term: researching how long patent protection should exist to promote innovation with maximum efficiency • Maintenance Fees: studying ways to adjust the cost of patents to make it expensive for trolls to buy older patents and file dubious patent claims against users • Fee Shifting: studying the prospect of forcing those who unsuccessfully sue for patent violations to pay the legal fees of the winning party “Brian and I are both interested in empirical methods to measure and quantify the impacts of particular policy interventions, and whether or not they are having their intended effects,” said Chien.

That interest led Chien to organize a 2012 conference at Santa Clara, “Solutions to the Software Patent Problem,” which drew upon the expertise of her and Love’s work, as well as 11 other high-powered patent law professors including Mark Lemley of Stanford, Peter Menell and Jennifer Urban of U.C. Berkeley, and others. Each panelist wrote an op-ed in Wired supporting their views, with Chien writing on ways to reform the patent system so it works for both one-patent industries like pharmaceuticals as well as for the complex, multi-patent technology industry. Love’s op-ed called for an economic approach: charging trolls much more to maintain the right to the patents they bought, and making it less profitable for them to buy aging patents to squeeze royalties out of huge numbers of users of the technology.

“A lot of the ideas that were developed at that conference actually became policy initiatives,” said Chien. Among them: The Supreme Court moved to tighten “functional claiming,” as Lemley recommended in his Wired op-ed and accompanying law review article; and the United States Patent and Trademark Office adopted a “dictionary pilot,” as Menell recommended in his Wired op-ed. Many of the ideas in a January 2013 article

by Chien in the Houston Law Review, discussing the striking parallels between current and historical incidents of patent nuisance suits, came to be

reflected in executive and congressional proposals and court action.

WHEN THE WHITE HOUSE CALLS...

In 2011 Chien, known as a rising star in IP law, was invited to witness President Barack Obama signing the America Invents Act. That act gave priority to patents based on the date entities filed for patent, not the date they were presumed to have invented the patented product. It also expanded the ways that patents could be reviewed for validity after issuance.

Shortly thereafter, in 2013, she was tapped by the Obama Administration to serve in the White House Office of Science and Technology Policy as a senior advisor on tech and innovation to the chief technology officer. She was the first specialized IP senior adviser to hold such a role, and her work was cited extensively in the June 2013

“Brian and I are both interested in empirical methods to measure and quantify the impacts of particular policy interventions, and whether or not they are having their intended effects.”

— SANTA CLARA LAW ASSOCIATE PROFESSOR COLLEEN CHIEN

White House report Patent Assertion and U.S. Innovation, which outlined the challenges and potential solutions to perceived abuses by PAEs. Indeed, Chien’s extensive research on patent assertion entities had helped frame the issue for policymakers generally. The International Trade Commission (ITC) began tracking various forms of nonpracticing entities, following Chien’s work in this area. She twice testified before the House Judiciary Committee of Congress, as well as numerous times before the DOJ, the FTC, and PTO on this body of work, which she disseminated through numerous op-eds she authored or co-authored for the New York Times, Wall Street Journal, Washington Post, TechCrunch, Wired, IP Watchdog, and Patently O. ITC ABUSES Before her term at the White House, Chien also helped educate Congress about the problem of companies abusing the International Trade Commission to keep foreign-based competitors FALL 2017 | SANTA CLARA LAW

23

out of the U.S. They did so by complaining to the quasi-judicial federal agency that the competitors were infringing a U.S. company-owned patent, and should be barred from bringing their product to the U.S. market. This was a particular problem for companies making the complaint for patents considered “essential” to a technology “standard” —meaning it would normally be the subject of friendly industry agreement.

Following Chien’s research—presented through a law review article with Lemley, Congressional testimony, and an op-ed in The New York Times—the Department of Justice, Federal Trade Commission, and the Patent and Trademark Office issued policy statements warning against the abuse of the ITC. But

Chien’s publications contributed to more than 30 states passing laws making it illegal to send demand letters that allege a claim of patent infringement in bad faith. in 2013, the ITC nonetheless decided to bar imports of smartphones that Samsung claimed were violating their patents. In a highly rare move, the Obama Administration’s overseer of the ITC, the U.S. Trade Representative, vetoed that ITC ban—a victory for innovation-friendly patent policies, in the eyes of many. One patent law blogger called the decision “a victory for consumers and fair competition.”

“It was the first time in nearly 30 years that there had been a presidential veto and it was a big deal,” said Chien.

TROLL DEMANDS Chien’s research and advocacy in the area of patent assertion entities and their rampant “demand letters” also helped sway policy nationwide. She wrote numerous scholarly papers and columns on the topic, including in the Wall Street Journal and TechCrunch. Her nationally influential 2012 Stanford Technology Law Review article, “Startups and Patent Trolls,” showed that patent demands were having a quantifiable impact on the business operations of their targets. That article, as well as her piece from the Wake Forest Law Review, was among the first to notice that a large share of the 24 SANTA CLARA LAW | FALL 2017

demands were being made of companies who did not make, but merely used technology.

Such works contributed to more than 30 states passing laws making it illegal to send demand letters that allege a claim of patent infringement in bad faith. The USPTO and White House also adopted the recommendation she made in testimony to Congress and established a patent demand letter information website.

PATENT REFORM FEVER STRIKES WASHINGTON In 2013 and 2014, Congress—building on the work of academics like Chien and Love—began to propose a slew of bills to reform the patent system, attempting to thwart abusive patent troll behavior, firm up the patent system overall, and preserve patents as a tool to further innovation.

Love spearheaded two scholarly letters in support of congressional patent reform measures at the time. One argued patent litigation raised the cost of innovation and inhibited technological progress; the other warned of the distorting impact of patent troll litigation on the patent system. He also testified before the California Assembly Select Committee on High Technology, which was considering its own actions to curtail patent trolls.

Love’s impact was especially prevalent in the area of the “customer suit exception,” which tackled the question of who should be subject to lawsuits for alleged patent infringement: end users or manufacturers? In 2013, he wrote a scholarly paper with his former Wilson Sonsini colleague and Santa Clara Law Lecturer James C. Yoon entitled “Expanding Patent Law’s Customer Suit Exception.” In it, they argue that trolls often take advantage of the fact that the law allows patent owners to sue any entity that sells or uses allegedly infringing technology, even parties that merely resell or use technology produced by others. Those being sued included hotels and coffee shops that offered common wi-fi technology, as well as small online retailers that utilized allegedly patented mobile-purchasing applications.

Love and Yoon argued that it should be easier for the manufacturers of those technologies to step up and halt lawsuits filed against their downstream customers by challenging the validity of the troll’s patent or contesting its infringement allegations in a declaratory judgment action. But doing so requires an exception to the general rule that, between two related lawsuits, the one that was filed first should take precedence. A manufacturer seeking an exception to this rule must pass a stringent legal test, which few can do.

“Our paper explained why we should modernize the test, and make it less restrictive, so that manufacturers can step into the customers’ shoes more often in patent litigation” said Love.

“Manufacturers, not customers, are experts on the accused technology. They have the information and incentive necessary to defend suits. Retailers and end users are much more likely to cave and pay nuisance value settlements.”

Lawmakers latched onto the idea. Some variation of Love and Yoon’s proposal was included in several patent reform bills that were being promulgated by Congress in 2012 and 2013, including the promising Innovation Act, which generated great excitement when it passed the House, but failed to make it out of the Senate.

SUPREME COURT DEALS A BLOW TO TROLLS The importance of Love and Chien’s work was on full display in the recent landmark Supreme Court decision TC Heartland v. Kraft Foods.

The Supreme Court, in a unanimous decision issued in May 2017, overruled a 27-year-old Federal Circuit ruling that had essentially allowed those alleging patent infringement to file lawsuits wherever they had a “personal jurisdiction.” In essence, that meant they could file suit almost wherever they wanted.

Love and Chien were among four leaders of an amicus brief, signed by 56 law and economics professors, arguing that the Federal Circuit loophole was legally unsound and should be overruled.

Although the TC Heartland case before the Supreme Court didn’t involve trolls directly, it was well known that trolls—as Love had witnessed firsthand as a practicing attorney—liked to use that Federal Circuit loophole to file their cases in the troll-friendly Eastern District of Texas.

The Supreme Court ruling in TC Heartland put the brakes on that, saying suits now must be filed in the jurisdiction where the defendant resides.

Chien had co-authored a paper about the Eastern District problem with Michael Risch of Villanova, “Recalibrating Patent Venue,” which was cited by numerous amicus briefs and in oral arguments in the TC Heartland case. The pair studied about 1,500 cases to see what would happen to patent lawsuits if the Federal Circuit loophole didn’t exist. They concluded that 58 percent of troll lawsuits would have to be re-filed, potentially in jurisdictions that are less troll-friendly.

Love, meanwhile, had co-authored an important study of the district in the Stanford Technology

Law Review. The study analyzed why trolls flock to the Eastern District, concluding that the court’s procedures tend to favor trolls by raising the cost of defending patent suits filed there in numerous ways. That paper was cited in several amicus briefs filed to the Supreme Court on the case, as well as in an op-ed in Wired by Sen. Orrin Hatch.

After the Supreme Court decision, Chien testified before a House Judiciary Subcommittee on the issue based on her research with Risch, calling it a “sea change” that lawsuits must now be filed “on defendant’s turf, not plaintiff ’s.” She also noted that this would lead to major shifts in where patents cases were filed—from Texas, to Delaware and the Northern District of California.

Early reports suggest that case trends have, in fact, gone as Risch and Chien predicted.

WHAT’S NEXT? Despite the mad flurry of patent-reform legislation a few years ago, most bills never made it into law. “It’s really hard to get things done legislatively, for many reasons,” said Chien. “We have one patent system, but different industries are using it in very different ways and often cannot agree on reforms. It stymies progress on legislation.”

So now, Love and Chien are hard at work studying how to use other levers in the patent system to solve longstanding problems.

One such lever is fee shifting, or making it easier for courts to force patent asserters who lose in court to pay legal fees for the winners.

Love is working on another paper right now with Helmers that studies the impact of a reform capping fee awards in the UK’s I.P. Enterprise Court.

The pair is also working on projects that analyze the effectiveness of “troll defense” insurance and the effect that inter partes reviews have on copending litigation asserting the challenged patent.

Chien, who was awarded the 2017 American Law Institute Young Scholar Medal for her contributions to the field of IP law, is working on using patent data to understand innovators, not only innovation; trends in inequality; artificial intelligence; civic engagement; and a forthcoming book on the design of patent law with University of Minnesota Law Professor Tom Cotter and recently retired U.S. Circuit Judge Hon. Richard Posner.

Love says there is significant progress. “Today we see a lot less of some of the most egregious conduct, like widespread demand letter campaigns and assertion of vague software business method patents,” said Love. “There has been a good deal of improvement in recent years.”

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C LASS ACT I O N

A D A M HAY S

Alumni Keep your fellow law alumni posted on what's happening. Email your news to lawalumni@scu.edu or send to: Law Alumni Relations Santa Clara University 500 El Camino Real Santa Clara, CA 95053.

1970 Gary Shara BSC

’67 is a business and corporate attorney in San Jose. He is a professor of law at Lincoln Law School and has taught at California State University, Monterey Bay for 18 years. He and his wife are active in the Rotary Club of San Jose. Gary will serve as the club’s president in 2018-19.

1971 Christine Russell

Above: The Honorable Shelyna V. Brown J.D. ’96, standing, administered the Oath of Professionalism at this year’s Convocation exercises to open the 2017-18 academic year at Santa Clara Law.

26 SANTA CLARA LAW | FALL 2017

MBA ’83 is on the board of directors of eGain, a provider of cloud customer engagement solutions.

She is CFO of UniPixel and a director of QuickLogic Corporation. Previously, she was CFO of a number of technology companies, including Vendavo, Virage Logic, and OuterBay

Technologies. Hon. Donald Sullivan B.S. 68 has retired from the San Francisco County Superior Court after 13 years.

1973 Mitch Lyons writes

from Massachusetts that he and his wife “are going to be spending much more time in Santa Clara as their daughter, husband, and two grandchildren have moved to Los Gatos.”

1976 Hon. Risë Jones

Pichon B.A. ’73 was honored at a judicial reception by the Charles Houston Bar Association. Esteban Valenzuela practices law in Santa Maria, Calif., where he represents clients in personal injury and wrongful death cases.

1977 Andrew Kryder

MBA, B.S. ’74 received the 2017 Ignatian award from the Santa Clara Alumni Association, honoring outstanding achievement and service to humanity. He is a member of the executive committee of the law advisory board. (See page 6.)

1978 A. Mike Espy was

the commencement speaker at Jackson State University in Mississippi. He served as U.S. Secretary of Agriculture under President Bill Clinton.

Mario Cordero is executive director of the port of Long Beach. He is a former harbor commissioner and former head of the Federal Maritime Commission. He was previously a workers’ compensation attorney and political

science professor at Long Beach City College. James J. Rodriguez, a certified tax specialist, runs the Valley Law Center in Cupertino. He was recognized by Continental Who’s Who and was a 2015 Elite American Lawyer and a 2014 Industry Expert Top Lawyer.

1979 George Clause

B.A. ’75 is a fellow of the American College of Trial Lawyers. He is a partner at Hayes Scott Bonino Ellingson & McLay in Redwood City.

Elliot Groffman is recipient of the 2017 Entertainment Law Initiative Service Award for his commitment to advancing and supporting the music community through service. He is a founding partner of Carroll Guido & Groffman in New York City. Scott Lord specializes in construction contracts and disputes. He published a suspense novel in 2015, The Logic Bomb.

1980 Rolanda Pierre

Dixon was keynote speaker at Mission College’s AfricanAmerican Celebration Luncheon. She retired from the Santa Clara County District Attorney’s Office in 2011.

1983 David Long represents the 16th District in the Indiana State Senate, a seat the Republican has held since 1996. He also serves as the leader of the Indiana State Senate as president pro tempore. He and his wife have two children.

1984 Jesper Rasmussen

is a litigator in Oakland, where his practice areas include wrongful termination, civil rights, and defamation law.

1985 Sean Nalty special-

izes in ERISA and California litigation involving life, health, and disability insurance at Ogletree Deakins. State Senator Bob Wieckowski leads the Energy and Environment Policy Committee of the Council of State Governments West, and is the first California legislator to do so. He chairs the Senate Committee on Environmental Quality.

1986 Stephen

Gronowski and his wife, Katy (Mortezai) J.D. ’87, are in private practice in Walnut Creek. Stephen specializes in transactional real estate. Katy is a certified specialist in family law, and has taught law school courses in family law and community property. They live with their children in Alamo.

1987 Avis Bishop-

Thompson is an attorney with DeCotiis, FitzPatrick, Cole & Giblin. She has been nominated for the Superior Court in New Jersey by Gov. Chris Christie. Dana Curtis was the keynote speaker at the 2017 San Francisco Peacemaker Awards. She is Santa Clara Law’s new director of conflict resolution programs (see pages 13 and 31). Christopher Der Manuelian MBA is a personal injury attorney with offices in Jackson, Modesto, and Stockton, Calif. Previously, he was an insurance defense attorney in the Bay Area for ten years.

1990 Jeff Park BSC ’75

has been at Habbu & Park in San Jose for ten years. His practice covers contracts and employment law. He is also a mediator.

1992 Haydee Alfonso

is general counsel at Bay Area Legal Aid, a firm with more than 140 attorneys and advocates providing free legal assistance to low-income clients. She joined the organization in 2008. Genie Harrison was selected as Top Female Attorney of the Year by the International Association of Top Professionals. For seven years the Daily Journal has ranked Genie as one of California’s Top Labor and Employment Attorneys.

1993 Katherine McLain

is corporate counsel for Stripe in San Francisco.

Previously, she held legal and compliance roles in private and public companies. She lives with her family in Castro Valley. Alice Busching Reynolds is senior advisor to Gov. Jerry Brown for climate, environment, and energy.

Previously, she was deputy secretary for law enforcement and counsel at the California Environmental Protection Agency since 2011, and has also worked for the California Attorney General’s Office and in private practice.

1994 Greg DePasquale is senior vice president, general counsel, and secretary at Copart, a publicly traded company for online vehicle auctions.

1996 Todd Boyer joined

Baker McKenzie as a partner in its employment and compensation practice. His work includes class and individual wage and hour claims in addition to discrimination, harassment and retaliation matters. Eric Gladbach has joined the the tort and environmental practice of King &

Spalding’s New York office.

With more than 20 years of experience, Gladbach advises companies in critical litigation and settlement issues relating to complex class and mass actions in federal and state courts, and he specializes in structuring class action settlements, providing guidance on notice plans, addressing Medicare and lien issues, and overseeing the implementation of the terms of the settlements. Susan A. P. Woodhouse was recognized as one of the “40 Up and Comers in the field” by Human Resource Executive Magazine and Lawdragon in their 2017 annual rankings guide

1997 Jason P. Lee,

who has been an attorney in Los Angeles for the U.S. Securities & Exchange Commission, was chosen to serve as vice president of the California State Bar for 2017-18 by the Board of Trustees. He is a former chair of the Commission on Judicial Nominees Evaluation.

The California Supreme Court placed him on the Board of Trustees.

1998 Charles Mirho is

the co-founder and chief legal counsel at TurboPatent, an artificial intelligence cloud-based platform that aids patent attorneys with documents. Kathy Priest is general counsel, VP, and secretary of the board for CData Software in Chapel Hill, N.C. Nicole Rice was appointed to the California Workforce Development Board by Gov. Jerry Brown. Since 2013, she has been policy director at the California Manufacturers and Technology Association.

FALL 2017 | SANTA CLARA LAW

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CLASS ACTION

1999 Joanne

Pasternack-Bardin was named executive director of the Golden State Warriors Community Foundation and vice president of community relations.

Pasternack-Bardin will oversee the Warriors Community Foundation and all day-to-day management of the Warriors’ community relations efforts.

2001 Garret D. Murai has

been named a 2017 Super Lawyer by Northern California Super Lawyers, a Thomson Reuters rating service and publication. Murai is a partner at Wendel Rosen Black & Dean LLP, where his practice focuses on construction, real estate, and related business matters.

2002 Kristina Lawson is

a partner at Hanson Bridgett in Walnut Creek. Previously, she was a partner at Manatt.

2003 Sameer Khedekar

is managing partner at the Pearl Law Group in San Francisco. Shannon Pierce is director in the Reno office of Fennemore Craig. She practices in the areas of employment defense and commercial litigation. She

has been named “Legal Elite” by Nevada Business magazine.

a partner at Ropers Majeski.

in the city of South San Francisco. Michael Yang is a partner at Orrick Herrington, where he works in the firm’s compensation and benefits group.

2005 Jennifer Cheng

2007 Suzanne Farley is

2004 Daniel McKinnon is is vice president and general counsel at Adverum Biotechnologies, where she has worked since 2015.

Previously, she served as patent counsel at global pharmaceutical company Allergan and at other biotechnology companies.

Simon O’Connell was named Prosecutor of the Year for his work on the homicide team in the Contra Costa District Attorney’s Office. He is on the District Attorney’s Association Board.

Benjamin Qiu is a partner at Loeb & Loeb in Beijing and Hong Kong. He is an arbitrator of the South China International Economic and Trade Arbitration Commission.

2006 Robert Uy is a

partner at Uy Law Group, where he practices immigration and family law.

He was chosen as a Super Lawyer Rising Star from 2014 to 2017. He is a parks and recreation commissioner

Five Santa Clara alumni at Downey Brand were recognized as 2017 Top Lawyers by Sacramento Magazine: Matthew W. Ellis J.D. ’02 Sean J. Filippini J.D. ’04 Janlynn R. Fleener B.A. ’90, J.D. ’93 Scott D. McElhern J.D. ’94 Robert P. Soran J.D. ’93

28 SANTA CLARA LAW | FALL 2017

with Venable’s tax and wealth planning practice group in San Francisco. Previously, she was at Arnold & Porter.

2008 Kevin Albanese,

B.S. ’96 has been reappointed to the Contractors State License Board, where he has served since 2013.

Albanese has been president and chief executive officer at Joseph J. Albanese Inc. since 2014. He has been an attorney at the Law Office of Kevin J. Albanese since 2009. Joseph Myszka is a tax partner at Baker & McKenzie in Palo Alto. He is experienced with technology tax issues, international structuring, cross-border transactions, and transfer pricing.

2009 Leslie (Maglione)

Jensen B.A. ’06 and her husband, James, welcomed their second child, Eleanor Marie, on Dec. 19, 2016.

Tae-Woong Koo is a partner at the Palo Alto office of Morgan, Lewis & Bockius.

Crystal Riggins has been named a 2017 Silicon Valley Business Journal “40 Under 40” honoree. She is a shareholder at Hoge Fenton in San Jose, and is a business litigator and appellate attorney.

She has a passion for client advocacy and is a leading Title IX advocate.

2010 Linda

(Wuestehube) Kahl is senior counsel and director of ownership, sharing, and

innovation at the BioBricks Foundation, whose mission is to ensure open and ethical biology engineering. Caitlin Robinett Jachimowicz was appointed to be a city council member in Morgan Hill. She practices criminal law and civil litigation with Jachimowicz Pointer. She previously served on the Santa Clara County Parks and Recreation Commission.

She is married to Josh Jachimowicz J.D. ’11 and they are parents of a daughter, Penelope.

2011 Christine Pham

B.S. ’05 was included in the Silicon Valley Business Journal’s list of 40 Under 40, recognizing people under the age of 40 who are making an impact in their industries and communities.

2012 Justin Brown was

appointed by the City of Sunnyvale’s City Council and Mayor to the city’s Personnel Board. He is an employment attorney at Littler Mendelsohn. Jarrett Osborne is an associate at Buchalter in Sacramento. He represents public and private institutions in bankruptcy and employment lawsuits.

2013 Tom Skinner

is counsel and assistant in the office of U.S. Congresswoman Zoe Lofgren ’75. Previously he was an associate at Ferrari Ottoboni Caputo & Wunderling. Another staffer in Lofgren’s office, working on legislation, is Christian Mora-Castrellon J.D. ’15.

Gabriella Ziccarelli was a finalist for the Women in Technology Rising Star Award.

2014 John Belisle is a

litigation associate at Hoge Fenton. Nicole Shanahan is a Stanford CodeX Fellow.

Melissa Wheeler Hoff is an associate at the family law firm of Cordell & Cordell in Foster City.

partner at the Artegis Law Group in Sunnyvale. Erica Riel-Carden advises on agtech and foodtech in the startup market and public sector. She has prepared companies for regulatory compliance, intellectual property licensing, financing, due diligence, and corporate cleanup. She is on the advisory board for the SCU Food and Agribusiness Institute at the Leavey School of Business.

2016 Nnennaya Amuchie MBA published a book of poetry, Ako na Uche: A Short Collection of Poems from the Ancestors, on Amazon. Madhumita Datta published an article in the DePaul Journal of Women, Gender and the Law, titled “Egg Freezing on Company Dollars: Making the Biological Clock Irrelevant?” Lizbeth Mateo was featured in a July 2017 article in The New York Times entitled “A Defender of the Constitution, With No Legal Right to Live Here.” Mateo, who was born in Oaxaca and is undocumented, was sworn in as an attorney last month. In 2014, California was the first state to allow undocumented immigrants to practice law, followed by New York. Keri Nesbitt is Deputy Public Defender at Ventura County Office of the Public Defender.

KEITH SUTTER

2015 Sarah Mirza is a

In Memoriam 1951 Paul “Bill” Bachan, June 15, 2017. At the age of 17, he enlisted in the United States Marine Corps.

After serving in the Pacific Theater during World War II, he earned his law degree.

He practiced law in Santa Cruz County from 1952 through 2008. He was the senior partner of Bachan, Skillicorn & Marinovich, and then became of counsel with Allen & Allen. Dedicated to public and community service, he was a past president of the Watsonville 20-30 Club, served as chief assistant district attorney 1956-59, and he was a past president of the Santa Cruz County Bar Association.

He served on the Board of Directors of Watsonville Federal Savings and Loan Association and its successor, Monterey Bay Bank, from 1954 through 2001.

He served on the Board of Trustees of Watsonville Community Hospital, Santa Cruz County Community Foundation, and the Board of Fire Commissioners of the Salsipuedes Fire District.

He was a life member of the 32rd Marine Division Association, a perpetual

pember of the Marines’ Memorial Association, and The Military Order of the Purple Heart. He is survived by his wife, Karen, his four children, eight grandchildren, and ten great-grandchildren.

1961 Michael G. Briski,

July 31, 2017. He served in the U.S. Army during the Korean War. After discharge in 1963, he returned to California and practiced law in the Bay Area for 40 years.

He is survived by his wife of 58 years, Kathy, two children, and three grandchildren.

1966 William Edward

Glennon, Jan. 8, 2017. He served in the Navy during World War II and later helped incorporate the city of Saratoga, serving as its second mayor. He ran two paper box companies and worked as a business and estate lawyer with Rae, Frasse, Anastasi, Clark and Lewis, and later with Clark and Glennon. At the age of 62 he ran and completed the 1980 New York Marathon.

Survivors include his wife, one brother, five children, seven grandchildren, and three great-grandchildren.

1971 William Baber III

B.A. ’68, Oct. 24, 2016.

He practiced law with the Minasian Law Firm in Oroville for 32 years. His practice included water rights, civil litigation, and business law.

In 1979, as a young litigator, he won a case before the California Supreme Court, Royal Globe Ins. Co. v. Superior Court. He was an avid skier and a pilot. He is survived by two children and four grandchildren. Barbara L. Nicoara, June 14, 2017.

She earned her law degree by attending night classes while raising her four children as a single parent. She practiced family and criminal law and ran political campaigns in San Jose. She worked for California Assemblywoman Leona Egland in her San Jose office and was later employed by the County of Santa Clara in labor relations, negotiating labor contracts. She retired in 1985 and began a private consulting business. She is survived by her husband George, their six children, and 12 grandchildren.

1974 Ronald W. Wright, June 24, 2017. He graduated from the U.S. Naval

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CLASS ACTION

Academy in 1958. He was commissioned as a Marine Corps officer and received basic training in Quantico, Virginia. After a few military assignments, he returned to California to study electronics at the Naval Postgraduate School in Monterey. After earning his law degree, he worked in Washington, D.C. at the Justice Department and at the Credit Union Administration. Six years later the family returned to California, settling in Santa Cruz, where he installed the first computers in the local school district. He later moved to the Seattle area,

where he worked on computer systems for Litton, a transportation agency, for seven years. Finally, he moved to Grass Valley, where he enjoyed retirement. He is survived by his wife, Connie, four children, and five grandchildren.

1976 Philip Adleson,

March 1, 2017. He was an attorney with Adleson, Hess & Kelly in Campbell. He is survived by his wife and two children. Honorable Derek Woodhouse, July 19, 2017. He volunteered for the draft in 1968 and served in Vietnam. While

in the Army he became an American citizen and married his high school sweetheart, Sheri Arnold. His legal career began in 1976 as a deputy district attorney. In 1979 he went on to practice labor and employment law for 25 years. He was appointed to the Superior Court Bench in 2005. He is survived by his wife, two children, and two grandchildren.

1980 Nancy Koski MBA,

Jan. 15, 2017. She attended the University of Minnesota, Duluth, where she met her husband, Randy. After law school, she worked as a

financial planner for 35 years with Lincoln Financial Services in San Ramon. She also had her own financial services company in Palo Alto. Survivors include her husband, a son, and a sister. John Padilla B.A. ’77, Dec. 26, 2016. He was an Ignatian Award recipient and a family law attorney for 36 years in Santa Clara County.

He is survived by his wife Adoralida (Lopez) B.S. ’86, and a son. Roberta Munro Young, April 18, 2017. She was a resident of Los Altos.

She is survived by her husband, two sons, four sisters, and four grandchildren.

1984 John Blackman,

Nov. 28, 2016. He was an attorney in San Mateo County for 30 years. A strong supporter of alternative dispute resolution, he served as president of the California Dispute Resolution Council and also president of the San Mateo County Bar Association. Survivors include his wife, two children, and three sisters.

CH AR L ES B AR RY

1988 Anne Hamill

Jerry Smith (1936-2017) Hon. Jerome A. “Jerry” Smith B.S. ’58, J.D. ’65, May 7, 2017. Jerry started his political career on the Saratoga City Council in 1968 and became mayor in 1972. He was elected as a state senator in 1974, and his most notable legislation included the California Coastal Act that preserves the California coastline, the Victims of Crime Act that provides assistance to victims of violent crime, and the California Conservation Corps Act which provides training and work opportunities for young people with an emphasis on conserving and enhancing natural resources. In 1979, he was appointed associate justice to the California Court of Appeal, First Appellate District in San Francisco, and served on the bench until his retirement in 1996. After retirement, he honed his skills as a sculptor. Today his public artwork includes sculptures of Father Bellarmine and St. Ignatius of Loyola at Bellarmine College Prep, and Santa Clara Law’s Centennial Sculpture, which hangs in the student lounge and will be relocated to Charney Hall. Survivors include his wife, Jane Decker, four children, and 12 grandchildren.

30 SANTA CLARA LAW | FALL 2017

Maricle B.S. ’82, Sept.

26, 2015. She clerked in Reno, Nev., after law school, then at the Consumer Advocate’s Office of the Nevada Attorney General.

She worked for Nevada Bell, and was Pacific Telesis Senior Counsel. Starting in 1999, she raised her children full-time. Survivors include her husband, two children, parents, and three brothers.

2009 Mary Casey

Shelton, July 25, 2017.

2013 Camille Perrine,

of San Francisco, Sept. 11, 2016.

ALUMNI 2017-18 UPCOMING EVENTS

OCTOBER 2017

7

SAN JOSE Katharine & George Alexander Community Law Center Annual Celebration, Hotel Valencia

13

SANTA CLARA Law Reunion/Grand Reunion Weekend Santa Clara University Campus

NOVEMBER 2017

16

SANTA CLARA Dean’s Circle Evening of Appreciation de Saisset Museum, Santa Clara University

FEBRUARY 2018

27

SANTA CLARA Entrepreneurs’ Law Clinic 5th Anniversary Celebration, Santa Clara University

APRIL 2018

12 14

SAN FRANCISCO NCIP/Justice for All Awards Dinner

SAN JOSE Celebration of Achievement Awards Evening, Fairmont Hotel

MAY 2018

19

SANTA CLARA Commencement, Mission Gardens

For more details, visit law.scu.edu/alumni/alumni-events. We send a monthly email to alumni with events and other updates. Please be sure we have your preferred email address by sending a message to lawalumni@scu.edu.

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31

CLOSING ARGUMENTS

CONNECTING HEART AND MIND IN DIVIDED TIMES

B Y D A N A L . C U RT I S J . D . ’8 7

Canadian singer-songwriter-poet Leonard Cohen captured the fundamental paradox of conflict beautifully in his song “Anthem”: There is a crack, a crack in everything That’s how the light gets in.

Every conflict presents both challenge and opportunity. Politically, we are deeply divided: There is a crack. The fundamental challenge? How to reconnect with our common humanity despite political differences. So suffering is an opportunity: That’s how the light gets in.

Conflict resolution tools help us answer this call with our hearts and minds.

In the small North Idaho town where I grew up and taught high school for many years, I was woven into a community fabric, connected with others I cared about without regard to age, gender, economic status, education, or political beliefs. My community was not diverse racially and did not acknowledge differences in sexual orientation—it was a long time ago. But we knew one another as interesting and more or less complex human beings, never as onedimensional Republicans or Democrats.

A similar town is Haines, Alaska, where Hillary beat Trump by four votes.

In a Morning Edition story on National Public Radio last May, the town’s family physician observed: “We’re actually hardwired to judge things around us and decide if somebody is one of us or one of them. But once you decide somebody’s one of ‘them,’ it’s real easy to 32 SANTA CLARA LAW | FALL 2017

say, ‘Well, if I disagree about this, maybe I disagree with him about everything.’

And suddenly I can’t find any common ground.”

Mediation is about helping people recover that common ground. Parties in mediation not infrequently enter as “them-and-us” and leave as “us.” Warring neighbors become friends; antagonistic partners collaborate creatively to end or resume business on good terms; divorcing parents focus on a child’s best

fire in empathy—sadly don’t function well in conflict. It is difficult to listen to our enemies.

As I have experimented with connecting with people with whom I differ, I have found airplanes to be great laboratories. On a recent flight from Washington, D.C., I sat next to a man who operated a New Jersey construction company and a Montana cattle ranch. Our seatmate was a young woman who worked in the federal government. I eavesdropped

Into the cracks that divide parties, mediators shine the light of understanding through deep empathic listening. When we focus our full attention, our capacity to resonate with the other’s emotional states arises naturally. interests; and alienated family members muster the moral courage to apologize, forgive, and reunite. Where the parties can demonstrate diligence in finding resolution, they reconnect with one another and with their own nature as creative, loving, and whole human beings.

Into the cracks that divide parties, mediators shine the light of understanding through deep empathic listening. When we focus our full attention, our capacity to resonate with the other’s emotional states arises naturally. Our neurons—hardwired to

as they discussed their divergent views about Trump’s presidency shortly after takeoff. Later, I initiated a conversation with him.

“I overheard a bit of your conversation. It seemed to go pretty well,” I said.

“Yes,” he said, “it was good.”

“I am a mediator who helps people communicate effectively across differences, and I am interested to know what made your conversation go well?”

I asked.

He responded, “We spoke from our hearts.”

Dana L. Curtis J.D. ’87 is the new director of Conflict Resolution Programming at Santa Clara Law.

We had an engaging conversation about speaking from the heart. But when the conversation shifted to his political views, the quality of our discourse changed; I was less engaged and connected and less curious. In retrospect, I realize I was listening to him with my mind, no longer with my heart. As the conversation ended, I am embarrassed to admit, I offered jokingly: “Maybe next time you will vote Democratic.” I had lost my attention: My focus diminished to “How can I change him?” Instead, I might have returned to listening to understand, not persuade, him.

Listening with the heart facilitates connection. Psychological research demonstrates that exposure to the suffering of others can lead either to 1) empathic distress, causing us to suffer and withdraw out of self-protection, or 2) compassion, resulting in positive, other-oriented feel-

ings and motivation to relieve suffering.

When we listen with compassion, we not only understand another’s suffering with our minds, we care from our hearts. This caring enables the light of understanding to shine more brightly and allows us to connect.

Bill Clinton, speaking about terrorism in 2006 on the television show Meet the Press, cited as a national problem “the illusion that our differences matter more than our common humanity.” The same might be said for our political divide. If we look for what we share, we will discover that our political differences matter less than we think.

As expressed optimistically by a long-time resident of Haines, Alaska: “We will fight, we will scrap, we’ll go to the bar and have a beer together. And we’ll bounce back and we’ll be different.

K E IT H S UT T E R

But … [w]e’ll still be a community that, at the base of it—at the heart of it—we love each other.”

But first we must rediscover our common humanity, and to do so we must know one another beyond our politics. Our divisions have opened the space for understanding to occur. If we can deeply listen, love may follow. When all is said and done, as Ram Dass has said, “we’re all just walking each other home.”

DANA CURTIS J.D. ’87 is the director of Conflict Resolution Programming at Santa Clara Law. Adapted from a keynote address at Community Boards of San Francisco’s Peacemakers Awards, June 2, 2017.

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C H ARLE S BARRY

“We are a nation that builds bridges, not walls.”

—LEON EDWARD PANETTA B.A. ’60, J.D. ’63, Commencement Address at Santa Clara University School of Law, May 2017

One of Santa Clara Law’s most distinguished graduates, Leon Panetta is a model of public service. After spending 16 years in the U.S. House of Representatives, Panetta served the White House as Director of the Office of Management and Budget (1993-4) and White House Chief of Staff (1994-7). In 1997, with his wife, Sylvia, he established The Panetta Institute for Public Policy. He later served as Director of the Central Intelligence Agency (2009-11) and U.S. Secretary of Defense (2011-13).