Santa Clara Law Magazine Spring 2013

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 | s p r i n g 2 0 1 3 | v o l 1 9 n o 2

magazine

Wrestling with Climate change Santa Clara Law Professor Tseming Yang, former deputy general counsel of the U.S. Environmental Protection Agency, explores the challenges of climate change as well as how Santa Clara Law is helping prepare the next generation of environmental law attorneys. PLUS: Profiles of alumni working in environmental law. Page 12.

24 Donald Polden: Leader and Visionary 30 Alumni Connections

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JULIA YAFFEE M.A. ’88, M.A. ’97 Senior Assistant Dean for External Affairs Elizabeth Kelley Gillogly b.a. ’93 Editor LARRY SOKOLOFF ’92 Assistant Editor Michelle Waters Web Marketing Manager Jane Ludlam Copy Editor Amy Kremer Gomersall b.a. ’88 Art in Motion Art Director, Designer Charles Barry Santa Clara University Photographer Law Alumni Relations & Development Assistant Dean Trevin Hartwell Karen Bernosky B.S. ’81 Ellen Lynch Susan Moore B.S. ’86 Stephanie (Alonzo) Rosas B.S.C. ’96 Marjorie Short Amir Tejani Santa Clara Law, founded in 1911 on the site of Santa Clara University, California’s oldest operating higher-education institution, is dedicated to educating lawyers who lead, with a commitment to excellence, ethics, and social justice. One of the nation’s most diverse law schools, Santa Clara Law offers its 975 students an academically rigorous program, including graduate degrees in international law and intellectual property law; a combined J.D./MBA degree; a combined J.D./MSIS degree; and certificates in high tech law, international law, and public interest and social justice law. Santa Clara Law is located in the world-class business center of Silicon Valley, and is distinguished nationally for its top-ranked program in intellectual property. For more information, see law.scu.edu.

12 Above: Santa Clara Law students Brian Kimball and Hazella Bowmani discuss environmental law issues with Professor Tseming Yang.

On the cover: Prior to joining Santa Clara Law, Tseming Yang served as deputy general counsel of the U.S. Environmental Protection Agency, where he provided legal counsel to the EPA Administrator and other senior Agency leaders and supervised legal work on international and domestic environmental issues.

From 2007 to 2010, he led the establishment of the U.S.–China Partnership for Environmental Law, a U.S. AID and State Department-funded initiative to build China's institutional capacity in environmental law and governance. He has also trained and advised many foreign governments and international organizations on environmental law and governance issues. He served for four years on the EPA's National Environmental Justice Advisory Council.

Cover photo by Keith Sutter.

If you have any questions or comments, please contact the Law Alumni Office by phone at 408-551-1748; fax 408-554-5201; email lawalumni@scu.edu or visit law.scu.edu/alumni. Or write Law Alumni Office, 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 2013 by Santa Clara University. Reproduction in whole or in part without permission is prohibited.

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CON

F E ATURES

12

Climate Change Law and Lawyering at Santa Clara Law

By TSEMING YANG The former deputy general counsel of the EPA and new professor at Santa Clara Law explores the challenges of climate change as well as how the school is helping prepare the next generation of environmental law attorneys.

20 24

Immersed in Environmental Law compiled by Elizabeth Kelley Gillogly B.A. ’93

Meet five Santa Clara Law students who are studying environmental law and learn what drew them to the field.

Donald Polden: Leader and Visionary

By Susan vogel Polden is retiring after 10 years as dean, and he "is going to be a tough act to follow," says Law Professor Kenneth Manaster.

keith s u tte r

DEPARTMENTS 2 Law Briefs 30 alumni connections 32 class action 36 closing arguments

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by Eric Goldman, as well as 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

TENTS

LAW BR I E FS

Northern California Innocence Project at Santa Clara Law Assists in Two Exonerations

Ronald Ross greets his mother, Thelma Ross, after his conviction was overturned. After spending seven years in prison, he was exonerated with the help of the Northern California Innocence Project at Santa Clara Law.

l a c y at k i ns | t he s an f r ancis co chr onicle

In February, the Northern California Innocence Project at Santa Clara University School of Law (NCIP) and Keker & Van Nest LLP successfully petitioned the Alameda County Superior Court to overturn the wrongful conviction of their client, Ronald Ross, for premeditated attempted murder. It is the 13th exoneration—and the 15th successfully petitioned release—for the NCIP since it was created in 2001.

Ross’s attorneys argued that newly discovered evidence and proof of false testimony at his original 2006 trial entitled him to a new trial. After three days of evidentiary hearings, Alameda District Attorney Nancy O’Malley joined Ross’s petition asking the court to set aside Mr. Ross’s conviction. On February 20, Alameda Superior Court Judge Jon Rolefson signed an order vacating the prior convictions and sentence and, two days later, the Alameda district attorney formally dismissed the charges.

Ross was represented jointly by Linda Starr and Seth Flagsberg of the NCIP and by Keker & Van Nest pro bono attorneys Elliot Peters, Jo Golub, Reid Mullen, and David Rizk. Keith McArthur of McArthur Investigations led the team’s factual investigation of the case and made the key evidentiary discoveries that led to Ross’s exoneration.

“We are thrilled to celebrate Ronald’s freedom,” said Starr, legal director of the NCIP. “Eyewitness misidentification is a leading reason for the wrongful convictions of innocent people.

With the wrong man behind bars, the true perpetrator was able to continue his violent attacks. Ronald’s case is yet another 2 santa clara law | spring 2013

example of the tragic ramifications mistaken identifications can have for both individuals and the community as a whole. We hope that Mr. Ross’s case will highlight the great need for reform of eyewitness identification practices.”

“We are tremendously grateful that Ronald is coming home,” said Elliot Peters, partner at Keker & Van Nest LLP. “He is truly innocent. And we express our gratitude to District Attorney O’Malley for agreeing with us that Ronald should be freed, and for her dedication to fairness and the pursuit of justice.”

In March, the NCIP and the California DNA Project (CDP) announced that the Alameda County Superior Court overturned the wrongful conviction of Johnny Williams for sex crimes after new DNA evidence proved his innocence. Mr. Williams served 14 years in prison.

“We are thrilled the state has recognized Johnny’s innocence and cleared his name,” said Starr, the NCIP’s legal director.

“Additionally, we are grateful to the Alameda County District Attorney’s Office for their cooperation. Of the 303 innocent people exonerated by post-conviction DNA testing, nearly 75 percent involved eyewitness misidentification. Thus, in cases relying almost exclusively on eyewitnesses, we’ve learned that DNA evidence is the only way to conclusively prove innocence.”

For more information, see law.scu.edu/ncip.

New Entrepreneurs’ Law Clinic associate litigation attorney at Arnold White & Durkee, and an engineer and patent agent at Intel.

She received her J.D. from Santa Clara University and her B.S. in electrical engineering from the University of Michigan.

“I’m excited to build this clinic,” said Norris, “The top-notch legal education I received at Santa Clara positioned me well to advance in my career as an attorney focused on tech startups. This new Entrepreneur’s Law Clinic will be a fantastic supplement to the Law School’s already-extensive high tech curriculum.”

Laura Lee Norris ’97 will lead the new clinic.

High Tech Symposium Highlights Smartphones Discussions of how mobile smartphones are creating legal, business, and social change took center stage at “Carterfone and Open Access in the Digital Era,” the 2013 symposium of the Santa Clara Computer & High Technology Law Journal, held in February.

Panelists grew lively discussing mobile patent wars, the evolution of media licensing, privacy, and how technology is transforming lives in the U.S. and abroad. Panelists included attorneys from Silicon Valley firms, Santa Clara Law professors, and other Valley innovators. Scott Shipman ’99, associate general counsel and global privacy leader at eBay, was the keynote speaker.

For more information, including photos, PowerPoints, and podcasts, see law.scu.edu/hightech/ carterfone-symposium.cfm.

cha rl e s bar ry

A new law clinic focused on the needs of early-stage Silicon Valley companies will begin serving clients this summer at Santa Clara Law. A veteran attorney specializing in startup companies, Laura Lee Norris, has been named founding director of the new Entrepreneur’s Law Clinic.

Initially, the clinic will represent entrepreneurs with some connection to SCU, such as alumni or students running startup ventures. The clinic will serve the dual purpose of providing SCU-affiliated startups with highquality, affordable legal help, and giving SCU's law students real-life exposure to legal issues that confront high tech or other Silicon Valley companies.

“We are excited to launch the clinic, and we’re thrilled that a lawyer as experienced and talented as Laura will lead the way,” said Professor Eric Goldman, director of the Law School’s High Tech Law Institute. “The clinic reinforces Santa Clara Law’s commitment to preparing students for legal practice in the 21st century, and the clinic will become a crucial resource for Santa Clara University’s active community of entrepreneurs.”

In addition to her role as clinic director, Norris will be an assistant clinical professor overseeing a group of law students who will work in the clinic. The students will counsel earlystage Silicon Valley entrepreneurs in legal interactions including business formation, financing, contracts, and intellectual-property transactions. Fees and other details are not yet finalized.

Norris joins Santa Clara Law from her own private legal practice, where she has represented more than 50 technology start-ups and entrepreneurs in the past seven years. Before that, she served as the first vice president of legal affairs at Cypress Semiconductor. She was also an

Left, Scott Shipman ’99, Associate General Counsel and Global Privacy Leader at eBay, was the keynote speaker at the conference.

spring 2013 | santa clara law 3

LAWB RIE FS Santa Clara Law Celebration of Achievement It was a night of shining stars! Santa Clara Law and the Santa Clara Law Alumni Association proudly presented a magical evening for the community on April 13 at The Fairmont Hotel in San Jose. The Celebration of Achievement welcomed more than 300 guests including alumni, students, faculty, staff, family, and friends to honor this year’s awardees.

1

Santa Clara Law Alumni Special Achievement Award: Dorian E. Daley ’86; Senior Vice President, General Counsel and Secretary of Oracle Corporation.

3 1. Award recipients and families enjoyed a special reception prior to the party. Left to right, Dean Donald Polden, Valerie Peterson, Professor Bob Peterson, Bonnie Peterson, and President Michael Engh, S.J. , 2. Special Achievement Award Winner Dorian Daley shares a moment with Professor Cynthia Mertens., 3. David Tsai receives the Young Alumni Rising Star Award.

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Edwin J. Owens Lawyer of the Year Award: Robert W. Peterson, Professor of Law since 1970 and Director of Graduate Legal Programs.

Santa Clara Law Amicus Award: Edwin H. Taylor (1939-2012).

Founding partner of Blakely, Sokoloff, Taylor & Zafman, Ed served on the Law School’s Board of Visitors, the Dean’s High Tech Advisory Council, and the High Tech Advisory Board.

2

Young Alumni Rising Star: David J. Tsai ’06; Counsel in Perkins Coie’s San Francisco and Taipei Offices, David was selected by the Daily Journal as one of the top "Five Associates To Watch" in California in 2013. He also has been named a "Rising Star" in Intellectual Property Litigation by Super Lawyers magazine since 2009.

The final portion of the evening featured a tribute to Dean Donald J. Polden in recognition of his ten years as dean of the law school. Law Alumni Board Association President Roy Stanley ’06, Santa Clara University President Michael Engh, S.J., and The Honorable Edward A. Panelli ’55 each shared their appreciation and thanks for Polden’s impact and tremendous efforts in leading Santa Clara Law from 2003 to 2013.

For more information on the winners, as well as additional photos and evening highlights,visit law.scu.edu/alumni.

Institute of Sports Law and Ethics Inaugural ETHOS Award

T

he first ETHOS Award for Ethics in Sports was given to Jim Thompson and his organization, Positive Coaching Alliance, of Mountain View, at a ceremony in May at Santa Clara University. The $5,000 award was presented by the University’s Institute of Sports Law and Ethics (ISLE), which includes the School of Law, the SCU Athletic Department, and the University’s Markkula Center for Applied Ethics. ETHOS is an acronym for Ethics of Sports and also a Greek word that means “character.”

The institute also holds an annual Symposium on Sports Law and Ethics each September.

The Positive Coaching Alliance (PCA) works with youth athletes, parents, and coaches, through workshops, online courses, and publications. PCA training develops a Double-Goal Coach, who pursues the goal of winning, while also pursuing the goal of teaching life lessons through sports. PCA also emphasizes ethics in its Becoming a Triple-Impact Competitor workshop for high school studentathletes. Since its founding in 1998, the PCA has worked with more than 4.5 million youth athletes.

“I am honored that PCA and I are the first recipients of this award,” said Thompson. “It will help us and those who support our work—such as Phil Jackson, Steve Young, Doc Rivers, and Summer Sanders—to reinforce our message that ‘winning’ is not defined just by scoreboard results. It is critically self-important to train young athletes to honor the game by respecting rules, opponents, officials, teammates, and self.”

For more information, see law.scu. edu/sportslaw.

Jim Thompson is founder and CEO of Positive Coaching Alliance, a nonprofit that received the first ETHOS Award for Ethics in Sports from the Institute of Sports Law and Ethics at SCU.

[ RECE NT RANKINGS]

The ranking of Santa Clara Law’s IP Law LL.M. program in the 2013 Best of the National Law Journal (NLJ).

Santa Clara Law’s rankings for the number of alumni associates who became partners at NLJ 250 firms this year.

Santa Clara Law’s ranking, out of all law schools in the U.S., in NLJ’s “Go-To” Law Schools.

Ranking is based on the percentage of new graduates hired by law firms in the NLJ top 250 law firms.

Santa Clara Law’s ranking for having the largest discrepancy between our NLJ “Go-To” rank (46th) and our U.S. News rank (96th), a 50-school difference.

spring 2013 | santa clara law 5

LAWB RIE FS

Three Alumni Honored in Bay Area Best Corporate Counsel Awards Congratulations to the Santa Clara Law alumni who were finalists in the 2013 Bay Area Best Corporate Counsel Awards, sponsored by the Silicon Valley/San Jose Business Journal and the San Francisco Business Times.

John Shinn ’94, Senior Director of Legal, Brocade Communications Systems, Inc. Shinn was a finalist for best general counsel for a public company worth more than $1 billion. For the past seven years at Brocade, Shinn has been responsible for all legal, SEC, and SOX matters related to transactions. Manager of all commercial litigation matters, Shinn also oversees an 18-member team, including six attorneys, and eight contract administrators/negotiators.

He has also served as associate general counsel at PalmSource, Inc., where he worked on business development, product marketing, product engineering, and sales; and as an associate at Wilson, Sonsini, Goodrich, & Rosati.

6 santa clara law | spring 2013

Virginia MacSuibhne ’99, Senior Director, Legal, Ethics, and Compliance, Roche Molecular Systems MacSuibhne was a finalist for the Community Champion award. Since 2009, MacSuibhne has managed legal compliance and ethical issues for Roche.

Previously, she served as senior corporate counsel at Roche; senior corporate counsel at Intuit, where she helped build a global ethics and compliance program and employee relations and investigations strategy; and a litigation associate at Orrick, Herrington & Sutcliffe, where she focused on employment, securities, and technology-related commercial litigation.

She has worked with Building Together Peninsula, a nonprofit that rehabilitates homes and community facilities for lowincome homeowners and neighbors in the Bay Area.

Van Dang ’86, Vice President, Law and Deputy General Counsel, Cisco Systems, Inc. Van Dang was also a finalist for the Community Champion award. For more than 15 years, she has worked at Cisco, where she advises legal departments across the U.S. as well as manages a 15-person team. In addition, she volunteers significant time in her community, including service as a board member of the Silicon Valley Education Foundation and other organizations. She has also launched service efforts within Cisco, including a program to combat homelessness and a middle-school curriculum that teaches mediation and negotiation.

P h oto s b y N a n c y M a rt i n

Faculty News

Colleen Chien

Eric Goldman

Assistant Professor Colleen Chien received a $35,000 research grant from the New America Foundation to expand her work on the impact of patent trolls on startups. Her initial survey finding was covered by such media outlets as Forbes and Reuters, and was the subject of testimony before the Federal Trade Commission and the Department of Justice. The new grant will fund an expanded survey on the impacts of Patent Assertion Entities on startups.

Chien said her initial work suggests that small companies are more fragile and less able to handle patent demands. Chien also received the 2013 Professor Eric R. Yamamota Emerging Scholar Award by the Conference of Asian Pacific American Law Faculty, and she was named one of San Jose Business Journal’s 2013 Silicon Valley Women of Influence.

Professor Eric Goldman wrote a multi-part series for Forbes.com on “How to Fix Software Patents” based on a recent conference held at Santa Clara University. (For the first of the series, see Page 36.) He also talked to NPR’s Weekend Edition about lawsuits against those who write negative Yelp reviews. Also, for the second year in a row, Goldman has been named North American IP Thought Leader

Brian Love

Donald Polden

by Managing Intellectual Property, and he was named “One of the 50 Most Influential Law Professors Alive Today”

by Magazine Journal Express (mje.com).

of the ACS plaque by former CHAL Chair and Councilor Dr. Howard Peters ’78 occurred in January at the regular SCU Law Board of Visitors meeting.

Assistant Professor Brian Love became a media favorite during the Apple-Samsung patent lawsuit held in San Jose in September 2012, quoted in dozens of outlets, including the Los Angeles Times, Wall Street Journal, and Korea Times.

Professor David Sloss was elected to the American Law Institute (ALI), an association that includes leading lawyers, judges, and legal scholars in the U.S. and abroad.

Dean Donald Polden was appointed a Visiting Legal Scholar at the Center for Creative Leadership for 2013-14. In this role, he will work closely with senior research faculty member Roland Smith and faculty member Corey Criswell, who head Center for Creative Leadership’s legal sector practice, on several initiatives related to law and leadership—among them: expanding the curriculum and instructional materials for leadership courses at law schools, describing the changing nature of leadership for lawyers in various segments of the legal community, and how “leading” lawyers foster entrepreneurship and innovation in Silicon Valley. Polden was also elected Honorary Life Member of the American Chemical Society Division of Chemistry and The Law (CHAL). The presentation

For more faculty news, visit law.scu.edu/faculty/faculty-news.cfm.

David Sloss P h oto s b y K e i t h S utt e r

spring 2013 | santa clara law 7

L AW BRIE FS

CHA RL E S B A RRY

Stephanie Wildman and Bradley Joondeph Appointed to Endowed Professorships

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n endowed professorship is one of the highest honors that a Santa Clara Law faculty member can receive.

Faculty members are chosen based on outstanding teaching, creative scholarship, and service to the University and community.

Stephanie M. Wildman is the new John A. and Elizabeth Sutro Professor of Law. Wildman (J.D., Stanford University, A.B., with Honors in Humanities, Stanford University) writes extensively in the areas of social justice, race, gender, and the law. Her book, Privilege Revealed: How Invisible Preference Undermines America (with contributions by Margalynne Armstrong, Adrienne D. Davis, and Trina Grillo), won the 1997 Outstanding Book Award from the Gustavus Meyers Center for Human Rights. Wildman was the found-

8 santa clara law | spring 2013

ing director of the Center for Social Justice at the University of California at Berkeley School of Law (Boalt Hall) and currently serves as the director of the Center for Social Justice and Public Service at Santa Clara Law. Bradley W. Joondeph is the new Inez Mabie Distinguished Professor of Law. Joondeph (J.D., with distinction, Order of the Coif, Stanford University, B.A., with distinction, Phi Beta Kappa, Stanford University) is a well regarded author on the topics of federalism, judicial behavior, and American constitutional development. He has had extensive experience with the Supreme Court, having served as judicial clerk to the Honorable Sandra Day O’Connor. He also served as clerk for the Honorable Deanell Reece Tacha of the United States Court of Appeals for the Tenth Circuit.

About Endowed Professorships Endowed Professorships are the result of generous donations from alumni and friends of Santa Clara Law. The initial donation is invested, and a portion of the annual return is spent to endow the professorship, enabling the principal to continue to grow.

If you would like more information about creating an endowed professorship in your name, contact Law Alumni and Development at 408-551-1748 or lawalumni@scu.edu.

[ IN P RI N T ]

New Books by Faculty Colleen Chien, co-author with Menell, et al., Section 337 Patent Investigation Management Guide (LexisNexis, 2012).

A comprehensive manual for ITC professionals and a resource for companies exploring their options.

Anna M. Han, co-author with Daniel C. K. Chow, Doing Business in China: Problems, Cases, and Materials (West Academic, American Casebook Series, 2012).

The book includes an overview of the current business environment, recent political history, and rise of China’s legal system. It contains many short problems to stimulate classroom discussion, and the documents supplement contains relevant Chinese laws and regulations that are helpful in answering many of the questions and problems in the text.

“Most casebooks are incredibly dry and are sold or tossed after the class ends. But Doing Business in China: Problems, Cases, and Materials, by Daniel C. K. Chow and Anna M. Han, could not be more different. It is superb. So superb, in fact, that when interviewed today by a reporter, I listed it as one of the three best China books I had read in the last year.... This is now the book I refer to young lawyers and law students who write seeking a book that will enable them to better understand Chinese law.”

—Dan Harris, China Law Blog

Gerald Uelman, co-author with Jacqueline R. Braitman, Justice Stanley Mosk: A Life at the Center of California Politics and Justice (McFarland, 2012).

This is the first biography of Stanley Mosk (1912–2001), iconic protector of civil rights and civil liberties during his 37 years as a justice of the Supreme Court of California (1964–2001), and includes an overview of the landmark cases in which his opinions or biting dissents continue to resonate.

Kerry Lynn Macintosh, Human Cloning: Four Fallacies and their Legal Consequences (Cambridge University Press, Bioethics and Law, 2012).

Macintosh offers an exploration of how the law addresses assisted reproductive technologies, cloning, and genetic engineering, and where the law will go. Macintosh also examines why humans believe fallacies about cloning: that clones are copies, manufactured products, impostors, and reincarnations of the dead.

Stephanie Wildman, co-author with Martha R. Mahoney and John O. Calmore, Cases and Materials on Social Justice: Professionals, Communities, and Law (West Academic, American Casebook Series, 2013).

A casebook to help students understand the complicated relationship between law and activism. In three parts—a system of lawyers, a system of law, and a system of politics—the book provides both historic perspective and a modern blueprint.

spring 2013 | santa clara law 9

LAWB RIE FS

Chen Guangcheng Awarded 2013 Alexander Prize

n a n c y ma rt i n

Above, Katharine Alexander (left) welcomes Chen Guangcheng and his wife, Yuan Weijing (second from left), accompanied by their translator, Ms. Hsiao-Ming Wu. Chen's two children, Chen Kesi and Chen Kerui, were in the audience. Left, Chen smiles with SCU President Michael Engh, S.J., and Santa Clara Law Dean Donald Polden. n a n c y ma rt i n

The 2013 winner of the Katharine and George Alexander Law Prize is Chen Guangcheng, a civil rights activist who was honored for his work on human rights issues in the People’s Republic of China.

10 santa clara law | spring 2013

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lind from an early age and selftaught in law, Chen is described as a “barefoot lawyer,” advocating for women’s rights, land rights, and the welfare of the poor in rural areas. He has exposed alleged abuses in official family planning practices, often involving claims of violence and forced abortions.

He was arrested in 2005 for his activities after organizing a landmark class-action lawsuit against Chinese authorities for excessive enforcement of the one-child policy. He served more than four years in prison for the crime of “damaging property and organizing a mob to disturb traffic.” After serving his prison term, he remained under house arrest in China.

Chen’s case received international attention, with appeals for his release issued by the U.S. State Department, the British Foreign Secretary, Human Rights Watch, and Amnesty International.

Chen escaped house arrest in China in April 2012 and fled to the U.S. Embassy in Beijing. He came to the United States in May 2012 and is studying law at New York University on a fellowship.

Chen was honored at a ceremony at Santa Clara Law in March and received a substantial cash prize. The award was created by former Dean George Alexander and his wife, Katharine, a former public defender. The prize was first given in March 2008 and is given annually to lawyers who use their skills to correct injustice. All winners are invited to participate in lectures and classes while visiting the Law School.

For more information, see law.scu.edu/alexanderprize.

Fighting Injustice in China b y dEBORAH lOH S E , a S S I S TAN T dIRE C TOR , scu mE D IA r ELAT ION S

S

ome dissidents become known to the world as they try to create new constitutions or change unfair laws in their countries. The blind Chinese dissident Chen Guangcheng, who came to Santa Clara March 18 to receive the Katharine and George Alexander Law Prize, has spent his unorthodox legal career trying to enforce laws that already exist in China. There, many good laws are ignored with impunity, Chen found, by party authorities in rural towns like his own.

Disabled Chinese like Chen were not supposed to pay taxes, for instance, which led to his first legal victory as a “barefoot lawyer,” in 1996. Later, he fought for local party officials to obey laws by opening their books about how they spent tax money, and took them on over pollution violations. After forced abortion and sterilization were made illegal in China (in favor of monetary penalties to enforce China’s one-child policy) he took on local health officials who were still forcing women to abort or be sterilized, using a class-action suit that eventually led to his being jailed for four years on allegedly bogus charges.

Once he was released, he and his family were illegally and abusively detained and harassed, which even officials in Beijing agreed was improper, he says.

“People do associate him with fighting for women’s rights, but he really should be thought about as someone who fights for the rights of all the downtrodden or the disadvantaged,” said Santa Clara Law Professor Anna Han, who spent time with Chen during his visit to Santa Clara. “He fights injustices as he perceives them.”

Before his fascinating and wellpublicized escape from house arrest last year, Chen lived in a rural part of China

that was largely ignored by lawmakers in Beijing. Communist Party officials populated key bureaucratic offices and operated “above the constitution and the law,” said Chen at the recent award ceremony in Mayer Theatre. “In this kind of state, justice is kidnapped,” he said.

codifies secretly detaining citizens without trial or counsel.

In addition, in an interview in Tribune Media Services’ Global Viewpoint Network, Chen spelled out major reforms he’d like in China: “Eliminate policies that restrict the formation of other political parties and press freedoms, and truly protect freedom of speech . . . separate the power of the party from the government, which now affects all levels of government, from the central authorities to the local authorities. Make the judiciary independent. Let the party manage its affairs, and let the government carry out its duties according to the law.”

n a n c y ma rt i n

“I believe in the power of the people and that every act of a person can change the world. As long as we are persistent in our action, nothing is impossible.”

—Chen Guangcheng, from his acceptance speech for the 2013 Alexander Prize at Santa Clara Law, March 2013

New York University Asian and China law expert Jerome Cohen described a visit to Chen’s village where he met Chen’s clients, “the poorest, most ragged underdogs you’ve ever seen,” he said—including those who were poor, blind, and mentally or physically disabled. They were being unfairly taxed, denied shop permits, and discriminated against, he said. “They had every kind of problem but no lawyer, and Mr. Chen was the person they turned to.”

This is not to say Chen does not seek major change in China. He said for instance that “in a dictatorship there are a lot of evil laws” that should be changed, such as Article 73 in its criminal procedure law, which critics say

His perspective is being heard. His Alexander Law Prize award ceremony was attended by about 300 audience members. He stayed an extra day in Santa Clara to visit and thank dean emeritus and the creator of the prize, George Alexander, who was in the hospital at the time.

Chen seeks for his fellow countrymen what he has found in America: the freedom to enjoy life protected by the rule of law. In California, says Han, he indulged his love of fresh fruit, which he ate in abundance, and for flowers, which he stopped to touch and smell on his campus tour.

“He was thrilled,” said Han. “He was truly stopping to smell the roses.” spring 2013 | santa clara law 11

By Tsemi n g Y a n g , P ro fess o r , S a n ta Clara L aw, a n d f o rmer D epu t y G e n eral C o u n sel o f t h e U . S . E n v iro n me n tal P rot e c t i o n A ge n c y 1 A lum n i pro file side b ars b y J a n e Ludlam

climate change law and lawyering at santa clara law p h o to c ou rtesy of Ke n Manast er

According to the federal government’s National Climatic Data Center, 2012 was by far the hottest year on record for the lower 48 states. It obliterated the previous record, set in 1998, by one full degree Fahrenheit, and left the Arctic with record-low polar sea ice coverage.

1 I am grateful for the editorial suggestions by Professor Kenneth Manaster.

12 santa clara law | spring 2013

O

ne morning last October, a group of Santa Clara Law students from the Climate Change Law course, along with their professors Kenneth Manaster and me, were in a nondescript Sunnyvale office park admiring a row of gray, quietly humming telephone booth–size boxes. Santa Clara Law Professor Catherine Sandoval had also joined our class that day, and a Bloom Energy executive had provided us with an overview of state and federal policies promoting green energy. We were finishing up our visit with a look at Bloom’s Energy Servers. The array of fuel cells in each of the Energy Servers, commercially available technology that is already installed at progressive companies like Google, supplies approximately 200 kilowatts of electric power, enough for the base load of 160 homes. Yet, beyond a faint hum, the oversize boxes emitted no noticeable exhaust or other pollutants.

As the country’s leading producer of commercial fuel cell technology—a key step toward clean, reliable, and distributed energy generation—Bloom’s technology has been cast as an important player in helping to address the challenges of climate change and a long-term transition to a green and sustainable economy. Unfortunately, such promising and innovative clean energy technology continues to face significant challenges in competing with more traditional, much dirtier sources of energy, such as coal-fired power plants. National and state energy and climate policy remain inconsistent in promoting technologies and policies that will help address the emerging reality of climate change.

The marketplace has consequently been slow to adapt.

Reality has not slowed down, however. According to the federal government’s National Climatic Data Center, 2012 was by far the hottest year on record for the lower 48 states.

It obliterated the previous record, set in 1998, by one full degree Fahrenheit, and left the Arctic with record-low polar sea ice coverage. With scorching summer droughts, severe storms, and the devastating Hurricane Sandy, 2012 also placed second behind 1998 for extreme and severe weather events. It seemed that the only signs of disaster missing were pestilence and locusts.

In spite of such compelling developments, which are consistent with the predictions of climate scientists, the public discourse about climate change has remained surprisingly polarized and sharp. The issue continues to be controversial not only with respect to potential policy responses but also for the underlying science itself. Hardcore climate skeptics are still adamant and outspoken, even though scientists worldwide share an overwhelming

consensus that most of the fundamental science of climate change is clear and that the technical evidence points more and more to the contribution of atmospheric greenhouse gas (GHG) increases to the observed changes in the earth’s climate.

One Question and Four Answers Why has climate change been so difficult for the United States to address? Given this country’s past environmental successes, both domestic and abroad, the question appears puzzling. Since the 1970s, the U.S. has been able to clean up most of its air and waterways that had previously been in the news headlines as killer smog and burning rivers.

Internationally, the U.S. has successfully led efforts in recent decades to fix depletion of the atmosphere’s vital stratospheric ozone layer, critical to protecting life on earth from the sun’s harmful UV radiation.

There are many answers to the question of why climate change is so difficult to resolve. But at least four issues are markers of its intractability. First, it is a global challenge both in cause and effect. Since it is tied directly to the concentration of carbon dioxide and other greenhouse gases in the atmosphere, it is the ultimate “Tragedy of the Commons” problem. All humans share in the atmosphere as a common good and vitally benefit from a well-functioning climate system. But all humans also contribute GHGs through their lifestyles, though to greatly varying degrees.

A global solution will ultimately be necessary, for fear that efforts by some countries to limit their own GHG emissions are taken advantage of by free riders or possibly even undone by increased emissions from other countries.

Second, climate change is a long-term environmental problem. Although some serious impacts are already evident, its full effects may not manifest themselves for many decades, if not a century. Future generations are the ones that will bear the brunt of the environmental harms that our present-day society and ways of life are creating today. Worse yet, it may take even longer to ultimately fix and restore earth’s climate system. But our children’s children cannot be a part of the current public debates. Such intergenerational equity and ethical problems greatly exacerbate the fairness and political process problems already characteristic of international climate discussions.

Third, climate change encompasses and is related to an amalgam of major environmental challenges and impacts.

Higher mean temperatures will not only lead to more frequent and severe climate-related disasters, including

In October, as part of their Climate Change Law course, Santa Clara Law Professors Manaster and Yang took students to Bloom Energy, where officials from Bloom’s legal, business, and technical departments gave informative presentations and a guided tour of Bloom’s energy servers. spring 2013 | santa clara law 13

Bloom Energy Servers

droughts, storms, and other extreme weather events, but also adversely affect the habitat and survival of many plant and animal species. Rising sea levels will increase the height and frequency of storm surges as well as inundate currently habitable or arable land with ocean water. Close linkage of climate change to the exploration, extraction, and combustion of coal, oil, and gas associates it with harm to natural ecosystems. And the carbon emissions that result from reliance on fossil fuel for electricity generation, transportation, or industrial processes means climate change is also closely associated with pollution’s health effects. In other words, climate change is connected to a vast range of environmental problems. While measures to address climate change will come with important collateral environmental public health benefits, they may also incite a wide assortment of industries and other likely adversaries that may be negatively impacted by solutions.

Finally, the cost of addressing climate change is potentially tremendous. Some actions to mitigate climate change are projected to save money, such as energy conservation and efficiency measures. Other measures will carry a significant price tag, largely because many causes of global warming are tied directly to the use of fossil fuels.

These remain a foundation and driver of our economy and lifestyle. Switching to alternative energy sources, technologies, and other measures to reduce GHG emissions at this point will require investments of substantial resources.

The complexity of the climate change problem and its global and cross-cutting nature have also meant that the challenge of designing solutions implicates a great many areas of law.

ALUMNI PROFILE

daniel p. selmi It was more than 40 years ago when a young SCU grad from San Francisco, Daniel P. Selmi B.A. ’72, chose to study environmental law at Santa Clara Law, and to this day his ties to SCU run deep.

From his perch now as a full, tenured professor at Loyola Law School, he has a continuing collaboration with his original environmental law teacher, Santa Clara Law Professor Ken Manaster.

Together over the past 30 years they have worked on two key publications, writing State Environmental Law and editing all six volumes of California Environmental Law and Land Use Practice.

Selmi credits Santa Clara Law with his targeted launch into a successful career. “Santa Clara fully prepared me to practice environmental law,” he said. He clerked for a federal judge for one year after graduation and then landed in the California attorney general’s office, where he worked in the Environmental Law Section for six years. “That was because when I was a third-year law student at Santa Clara, I externed in the attorney general’s office. So when I was looking for work, the person I externed for was the head of the environmental section for the state and he hired me. I was the first

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one from Santa Clara hired—they were mostly from Boalt Hall and Stanford and Harvard, and because of Santa Clara I was able to fit right in right away.”

Selmi’s work as a deputy attorney general led to appellate work and his 30-year professorship at Loyola, where he currently teaches land use, natural resources law, and appellate advocacy.

He has watched climate change’s impact on teaching law and said, “As far as the academic world is concerned, everybody is convinced that it’s real and convinced that it’s the single biggest environmental problem anybody will face in their lifetime. So there’s a lot of academic interest in it at the same time that the political system doesn’t seem to be responding to it in the way that it should.”

A Recipe for Controversy Combine these cost considerations and complexities with the widespread popular misconception that climate change is still an unproven theory, and one has a recipe for controversy. There are of course some uncertainties that are relevant to policy makers, such as the timing and extent of specific impacts: the rate of the melting of the polar ice caps, effects on ecological systems and species survival, and consequences for agricultural production and public health, to name just a few. Scientific understanding is still evolving in these areas.

At the same time, there is a widespread international consensus among scientists on many other issues. The Intergovernmental Panel on Climate Change has elaborated in its assessment reports the scientific consensus on fundamental climate change science. It encompasses the increase in GHG concentrations, the warming effect on the earth, the potential consequences of warming on sea level rise, and the potential for a range of adverse effects on humans and ecosystems. Unfortunately, in the face of the significant cost, some uncertainty has been used to politicize the debate and cast much greater doubt than reasonably justifiable on the fundamental reality of the issue.

The complexity of the climate change problem and its global and cross-cutting nature have also meant that the challenge of designing solutions implicates a great many areas of law. These include tools to potentially solve the problem and doctrines altered by the environmental transformations climate change may bring about. The areas are as diverse as traditional environmental regulation, project finance, energy law, carbon instrument trading, land use regulation, municipal building codes, and even tort and property law.

The upshot has been a national and international policy process marked by fits and starts. Influenced more by politics than evolving climate science, the lack of sufficiently aggressive government actions to achieve an international climate solution has led to increasing alarm and despair, even doomsday predictions, on the part of some environmentalists and diplomats. The public policy and legal picture has not been pretty, undoubtedly. Nevertheless, a tremendous amount of important and positive work has occurred on many fronts—internationally, at the federal level, and at the state level, especially here in California.

ALUMNI PROFILE

Sonia Feldstein Sonia Feldstein ’08, staff counsel for the California Department of Toxic Substances Control, is a model of the focus and persistence required to land a public interest job as an environmental lawyer. But now that she’s working at DTSC’s Berkeley Regional Office, she’s happy with the mix of environmental law she gets to practice. “I really enjoy the work I get,” she says, “because it’s just such a broad range of information and a broad range of work. I don’t have to push the same forms or paper. I get to learn new things every day.”

Recently she researched who was responsible for contaminants that remain from the 1980s on a site in San Jose, and issued a unilateral cleanup order to 65 parties, including some large corporations that are household names. Since May 2012, it was a huge effort. “All the attorneys for those 65-plus firms contacted me directly,” Feldstein says. “I pretty much had to set everything up myself. I don’t have a secretary or paralegals like you would in a law firm.

“The good thing is,” she continues, “we got the parties to sign up to an agreement so we won’t have to continue through the unilateral enforcement order route, so finally they’re going to start doing a cleanup there in the next month or two. It will be good to see that finally getting taken care of after so many years.”

Feldstein understands from “slightly painful” experience how difficult it can be to secure a public interest job in environmental law. Graduating just as the recession hit full force, she applied to “probably more than 100 places” before volunteering for 10 months as an environmental lawyer in the state attorney general’s natural resources section. Today she makes an effort to help SCU environmental law students and recent grads when they reach out to her, and she is glad to see the University spotlighting environmental law. “It’s one of those fields where persistence really does pay off,” she says. “It shows your commitment to it, and that can be the difference between getting the job or not.”

International Processes Adoption of the UN Framework Convention on Climate Change (UNFCCC) in 1992 and the Kyoto Protocol in 1997, the first agreement by which wealthy nations committed to binding emission-reduction limits, came with

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great anticipation and hope for concerted global action.

Though the 1997 Kyoto Protocol imposed limited emission control obligations for only a five-year time period, from 2008 to 2012, the agreement had always been intended only as the first step on a long-term path of international cooperation. Over the years, work under the UNFCCC and Kyoto Protocol has resulted in the establishment of an international carbon-trading system, engaged developing countries in voluntary GHG reduction efforts through programs such as the Clean Development Mechanism, and focused attention on financial assistance needs for the developing world so that it can participate in GHG emission control. Europe created its own regional carbon-trading system, and an active carbon finance market has arisen to meet growing interest in GHG emission reduction projects.

From a legal perspective, negotiation and implementation of such climate change policy objectives have raised a number of legal and institutional design issues, including ensuring the enforceability of GHG reduction commitments, the integrity of carbon markets that are now worth hundreds of millions of dollars, and accountability for financial assistance arrangements.

Since 1992, the global population, especially in the developing world, has continued to grow and standards of living have steadily risen, while the international economy has suffered serious difficulties. These developments have complicated discussions about further GHG emission reductions, which under the Kyoto Protocol were undertaken only by the industrialized world. Worse yet, in 2001, then-President George W. Bush declared that the United States would not ratify the Kyoto Protocol and thus not legally accept the previously negotiated commitments.

But there have also been important signs of hope. As of the end of 2012, the initial five-year emission-reduction objective for the Kyoto Protocol appears to have been met.

It is a significant achievement, even if success has been aided by the global economic slowdown, which reduced fossil fuel use and emissions. Furthermore, late last year, diplomats were successful in renewing and extending the emission reduction commitments of the Kyoto Protocol to 2020, obligations which would otherwise have expired by the end of 2012. And recently, the international community also created a new Green Climate Fund that will assist with international financing of climate change work.

ALUMNI PROFILE

Kim Hughes Kim Hughes ’88 is senior legal counsel at Weyerhaeuser, one of the country’s largest paper and forest products manufacturers, near Seattle. “My work now is not just environmental,” Hughes says. “It would be nice if I just did environmental work, but our department is relatively small, so we don’t just do environmental work.” She and her three fellow environmental attorneys (the whole department is only 18 lawyers) do litigation work, health and safety, and regulatory compliance issues such as FDA compliance, carbon compliance for California, product regulatory issues, and issues related to REACH issues (Regulation, Registration, Evaluation, Authorization, and Restriction of Chemical substances) in Europe. Then, just to top it off, she is also lead counsel for Weyerhaeuser’s largest division, the cellulose fibers business.

While Hughes’s path to her action-packed position at Weyerhaeuser was relatively quick, it was a bit jagged. After studying business law at Santa Clara Law, she worked for two years at a county prosecuting attorney’s office in Washington State, and then at a boutique firm in Seattle that handled environmental insurance litigation—a lot of it. “In doing that work for several years,” she says, “I determined that, wow, I really like environmental work, and wow, I think I’d like to do this more intensely.

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“And when a full-time environmental position opened up here in the Weyerhaeuser law department, I ended up moving in-house,” she continues. “It was nearly four years post-graduation when I did that, so that was pretty early to move to an in-house position.

You know, it was a niche specialty and I’ve been here ever since.”

Hughes found it easy to transition from Santa Clara Law to working.

“You really do get a good practical grounding in what you need to do once you’re out of law school,” she says.

Her colleagues and friends—some alums and some whose children go to the Law School—also have strong feelings about Santa Clara Law. “A lot of people recognize that SCU is a good place to get an excellent legal education,” she says, “where you’re actually taught to think, you’re taught to be intellectually curious, and you’re taught to have a work ethic that doesn’t always exist everywhere. So that intellectual curiosity, the willingness to dig in and learn things, the can-do attitude that comes out of the school makes a big difference.”

Nevertheless, the future path remains filled with uncertainty. With the extension of the Kyoto Protocol commitments to 2020, the focus of international negotiations has now turned to long-term emission reduction commitments by a broad range of countries that will cut emissions drastically in the coming decades. Success in this endeavor will be critical to finding an ultimate solution to the global problem.

United States’ Progress Nationally, significant progress on climate change has been of only recent vintage. Under earlier administrations, the Environmental Protection Agency had resisted looking to the Clean Air Act as a regulatory tool for GHG emissions. However, the U.S. Supreme Court’s 2007 decision in Massachusetts v. EPA definitely determined the agency’s authority to take action under that statute. Since then, the EPA under the Obama Administration made an endangerment finding under the Clean Air Act that triggered further regulatory actions. Beginning in 2009, EPA finalized new, more stringent GHG standards for passenger vehicles, issued GHG permitting requirements for smokestacks, began collecting GHG data under the Mandatory GHG Reporting Program, launched the Global Alliance for Clean Cookstoves with the UN Foundation, issued the first set of GHG standards for medium- and heavy-duty trucks, and began work on GHG standards for power plants and oil refineries. The new, stringent fuel economy standards for passenger vehicles in model years 2017 to 2025 alone have been projected to save an estimated four billion barrels of oil and avoid two billion metric tons of GHG emissions.

Consumers are expected to save $5,000 to $6,000 in fuel per vehicle. Finally, no new construction of coal-fired power plants is anticipated in the foreseeable future, avoiding one of the dirtiest fossil fuels.

However, a declaration of victory would be premature.

Reduced reliance on coal has been ascribed both to the effects of the economic recession as well as the dramatic drop in natural gas prices due to fracking technology and the availability of shale gas, a much cleaner fossil fuel. Most of the GHG regulations promulgated by EPA are the subject of legal challenges and remain in litigation. Congressional efforts to pass climate change legislation that would have included a GHG cap-and-trade system failed at the end of 2010. No serious efforts have been made since then to revive such discussions (though President Obama’s commitment to revive discussions about climate change legislation in his second term could change that). In other words, national leadership and action are still critically needed.

ALUMNI PROFILE

Arlene Ichien Arlene Ichien ’79 has spent her entire, long career as an environmental lawyer at the California Energy Commission. Although she retired officially in 2010 as assistant chief counsel, she stills works for the agency as a resource for the powerplant siting program and helps out with conflict of interest problems. “It’s been a nice transition from retirement to easing out of the profession that I’ve been in for almost 30 years, because it was such a stimulating agency,” she says. “It ebbs and flows, but I still remain interested in the work being done there because it is on the progressive edge.”

As staff counsel and then supervising attorney for power plant licensing cases, each case she worked on had a lot of environmental law issues, such as endangered species, air pollution, water quality, visual impacts, local land use plans, noise, public health, traffic, and transportation. In addition, she worked on rule-making proceedings to develop and adopt regulations for various programs, such as energy-efficiency standards for appliances, and a large funding program for research and development in energy projects.

Ichien started at the commission right after she finished law school. “At the time, the Energy Commission was relatively young, too,” she recalls. “Governor Reagan signed the enabling statute into law in 1974. The average age when I started in 1980 was 28 at the commission.

So I feel like I’ve grown up there professionally.”

Throughout her career, she has carried a lesson from Santa Clara Law Professor Ken Manaster about using common sense to resolve an environmental problem. “He gave an example,” she recalls. “It was right after a major earthquake in Southern California. There was a bridge that had partially collapsed and a truck got stuck under it. So there was discussion about how to get the truck out from under this bridge, and Professor Manaster said it took a boy coming up with the idea of letting the air out of the tires.

“I think he was conveying the message that, especially in environmental problems, sometimes just thinking about the physical circumstances can lead to quite elegant, simple solutions,” she says, laughing, “even from an attorney.”

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JE NNI F E R H A L E

Santa Clara Law Professor Kenneth Manaster has taught environmental law and mentored students and alumni in the field since 1972.

Finally, efforts aimed at adapting to climate change are becoming increasingly important, as is the rising specter of climate geo-engineering. In contrast to climate mitigation measures, which seek to prevent or limit further GHG emissions, adaptation measures are designed to adjust and modify the activities and infrastructure of human society in response to effects of climate change that have already become unavoidable. These include adaptation to increased risks of flooding associated with rising sea levels and higher storm surges in coastal and other areas through the construction of seawalls and other measures.

Climate geo-engineering, in contrast, describes efforts to counteract the consequences of climate change through large-scale engineering interventions to modify the atmospheric system, such as by solar radiation management or ocean fertilization. Geo-engineering used to be the stuff of science fiction. However, with the efforts of private individuals to do just that, research into ocean fertilization as a means of carbon sequestration has become very real in recent years. Regulatory oversight of such work, at the leading edge of climate science and fraught with the potential for significant adverse environmental impacts, remains haphazard at best and falls within a regulatory gray area.

State Progress— Especially in California Efforts at the sub-federal level, especially in California, have remained bright points of climate action. Past lack of federal leadership on climate change policy resulted in a number of states, individually and as groups, developing their own initiatives. Chief among them have been the Northeast Regional Greenhouse Gas Initiative, which 18 santa clara law | spring 2013

engaged the states of New England and the northern midAtlantic region, as well as the Western Climate Initiative.

The California legislature’s enactment of Assembly Bill 32 in 2006 and other California programs, however, have put this state at the forefront not only within this country but also in the world. AB 32 has empowered the state’s Air Resources Board to limit California’s GHG emissions and to implement the country’s most comprehensive and sophisticated carbon-trading system. The state’s cap-and-trade system became enforceable in its requirements with the start of the 2013 calendar year.

California has also been a leader through other measures at the state and local level. For example, the state has provided financial incentives for green energy, promulgated green building code requirements, and set renewable energy portfolio standards for utilities. Local governments have enacted ordinances encouraging the use of solar energy for homes, and other innovative measures promoting sustainable growth and living.

Litigation Apart from effecting change through administrative regulatory processes, environmentalists and progressive state officials have also used the court system to promote public policy change. That has included litigation advancing nuisance and other tort principles or forcing state and federal government agencies to act under existing statutory mandates. Unfortunately, the outcomes have been mixed. States were successful in forcing EPA onto the path of GHG regulation in Massachusetts v. EPA. But environmental advocates and state officials have fared less well in cases like American Electric Power v. Connecticut, where the Supreme Court held that federal common law nuisance actions were displaced by the Clean Air Act. More recent cases have begun to explore the potential utility of the public trust doctrine as a tool for protecting the climate system. It remains to be seen how successful environmental plaintiffs will be.

Santa Clara University Progress Santa Clara University has been actively anticipating many of these concerns and developments. In 2007, then-SCU President Paul Locatelli, S.J., signed the American College and University Presidents’ Climate Commitment and subsequently created the Sustainability Council and the Office of Sustainability (scu.edu/sustainability). In his 2009 inauguration address, current SCU President Michael Engh, S.J., stressed the University’s commitment to sustainability and to championing environmental justice through the various University programs. These priorities and values have been incorporated into the University’s mission and vision through the Strategic Plan. Campuswide sustainability has become a key part of planning and

operations. In the process, the University has taken measures to improve energy efficiency, promote recycling, reduce waste generation, and utilize more renewable energy, including by installing solar panels on various campus buildings.

Santa Clara Law is well positioned to prepare its students to participate in and benefit from these developments. The curriculum offers a number of related courses, including the specialized course on Climate Change Law that Ken Manaster and I taught last fall. Its coverage included international, federal, and state climate law and policy issues, introducing students to specific current regulatory developments and cases. Examples are litigation surrounding EPA’s current GHG regulations, California’s brand-new cap-and-trade system, and international climate agreements. Furthermore, a range of leading scholars, national advocates, and distinguished practitioners working on these issues visited the class to share their insights. Another course highlight was the class visit to the offices of Bloom Energy.

Ken Manaster and I have been and remain actively engaged in the practice and public policy dialogues related to climate change, whether through active regulatory practice before agencies such as the California Air Resources Board, the principal regulator of GHG emissions in California, or by writing about the domestic and international legal and policy issues. Santa Clara Law Professor Cathy Sandoval’s ongoing role as a commissioner on the California Public Utilities board adds more breadth and depth to our faculty’s expertise available to students on regulatory issues related to climate change and energy issues. Finally, SCU’s proximity to Silicon Valley’s clean tech/clean energy industry creates many potential opportunities for student internships and other connections that will facilitate the entry of students into the field.

The Path Ahead The path of climate policy remains unclear for the short-term future, fraught with political controversy and economic challenges. However, as scientific understanding about the effects of climate change continues to settle, the set of policy options will inevitably crystallize. Santa Clara Law continues to follow the ongoing regulatory initiatives and progressive policy trends closely, and our students will be well positioned to address the opportunities and challenges these developments present to lawyers trained to grapple with these crucial issues and contribute to their resolution.

Santa Clara Law Professor Tseming Yang is the former deputy general counsel of the U.S. Environmental Protection Agency, where he provided legal counsel to the EPA administrator and other senior agency leaders and supervised legal work on international and domestic environmental issues. He joined Santa Clara Law in 2012.

Santa Clara Law is well positioned to prepare its students to participate in and benefit from recent developments. The curriculum offers a number of related courses, including the specialized course on Climate Change Law that Ken Manaster and I taught last fall.

ALUMNI PROFILE

Susan Adams As an environmental lawyer, Susan Adams ’81 has worked to keep the air and water clean on both coasts. For the past eight years, she’s been assistant counsel at one of the oldest agencies that protects and improves California’s air, the Bay Area Air Quality Management District. Before that, for 12 years at New York City’s Department of Environmental Protection and its Corporation Counsel she worked on drinking water and Clean Water Act issues. “The city has phenomenal drinking water,” she says. “That was a great job.”

A native Californian, she also loves her wideranging work now at the Bay Area Air District as in-house counsel. “I really enjoy that mix, which means you address both the governance of the entity itself— personnel, administrative, day-to-day governmental issues—as well as the mission of the agency,” she says.

“We draft rules and regulations; we give advice on issues that come before the board of directors.”

Adams is also quite proud to work at the intersection of science and environmental law. “This is an agency that I will say is driven by science, which is one of the great things about this,” Adams says. “Before it takes any decisions on rule making or permit issues, it does make sure there’s strong science to support those positions.”

Adams credits Santa Clara Law with helping her find her professional niche. “I started at Santa Clara really with the idea of going into human rights.” But she heard about an internship at the California State Coastal Conservancy near where she lived, and mentioned it to Professor Dorothy Glancy. “Really, she just seemed to have an understanding of some students as to where they fit,” Adams recalls, “and she said, ‘That is the perfect job for you.’” Adams got the internship, then a job, and stayed for several years knowing she’d found her fit in environmental law. “To me, safe drinking water, clean air, sanitation, these are all human rights that I believe everyone is entitled to. That’s part of civil society.”

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C o mpiled b y E li z a b e t h K elley G ill o gly B . A . ' 9 3

Immersed in Environmental Law Meet five Santa Clara Law students who are studying environmental law.

What drew them to the field? What has surprised them about the subject?

Why do they like studying at Santa Clara Law?

Hazella Bowmani

2L Hometown: Los Angeles B.A., History, Stanford

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ver since I can remember, my dad has always been interested in conservation and environmental issues, though I think he sees it as being “thrifty.” I also went to a hippie elementary school that fostered environmental stewardship and civic engagement, among other things, so I’ve had an environmental awareness from the beginning.

I’m also committed to sustainability, that is, the triad of environmental stewardship, economic responsibility, and social equity. Growing up, it was impossible for me not to notice how so many issues in the world—whether environmental, economic, social, or political—have intersecting causes and effects. For me, environmental law is one way of addressing these issues of sustainability.

I’m still undecided about whether I will practice law after I graduate. I’m interested in international affairs and am currently taking Professor Tseming Yang’s International Environmental Law course, so a career in that area with a human rights focus is a possibility. I’d also like to teach one day, so it would be nice to introduce elements of environmental law into my work.

One thing that I was surprised to learn about environmental law is that it is highly political, especially international environmental law. What laws get passed (or not), which environmental problem becomes the item of debate, how much faith the general public has in the science supporting proffered environmental policies—all of that is affected by politics. Yet, nature doesn’t operate on the political cycle, and the health of communities and the environment don’t get better simply because people believe there isn’t a problem.

I knew all of this intuitively, but studying environmental law brings to light how influential political machination really is. It can be a powerful tool to usher in progressive changes, but that also means it can be used to thwart such change, especially when it comes to the climate. Knowing this gives a very rich context to environmental law that may not be apparent if one simply looks at what laws are on the books.

I appreciate that SCU takes a holistic approach toward sustainability, and environmental law fits nicely within that framework. The professors are all very supportive and passionate about their work, and I’ve been fortunate to find opportunities to explore my interests as they relate to sustainability. I hope this will continue now that Professor Yang has joined the faculty.

k ei t h s u t t e r

Shana Inspektor (left) and Hazella Bowmani (right) chat with Professor Tseming Yang before his course in International Environmental Law.

Shana Inspektor

3L Hometown: Irvine, Calif.

B.A., English, minor in Spanish, U.C. Berkeley

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fter college, I worked for a high tech public relations firm. When I learned about clean technology, I got excited about energy issues and accepted a job working on a solar energy educational campaign. I learned a lot about how to sell solar energy, but I wanted to have more power to address environmental issues directly, so I decided to go to law school. I worked at San Francisco Baykeeper during my 2L summer, I served as president of Santa Clara Law's Environmental Law Society, and after the bar exam, I intend to work in environmental enforcement, litigation, or regulatory compliance.

Santa Clara is a great place to study environmental law because the University cares about environmental protection, minimizes its carbon footprint, and has an office dedicated to promoting sustainability. In addition, the Environmental Law Society has a growing presence on campus, thanks to Professors Manaster and Yang as well as many active student leaders. The Society is connected with the Bay Area community of environmental lawyers and has recently hosted many of them on campus to talk to students about water law, land use, cleantech financing, environmental prosecution, and regulatory compliance.

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Brian Kimball

he natural world provides so much that we take for granted—economic prosperity, beauty, the land on which we live, the air that we breathe, the water that we drink.

Our responsibility to ourselves, each other, and our children is to find a sustainable balance in which the resources around us are cultivated, conserved, and managed so that we thrive as a people while recognizing our impact in a massively connected system.

Environmental law gives us an opportunity to build a policy framework that embodies those principles of stewardship and respect for the world around us.

I work full time as the director of program development for Ecology Action, a nonprofit that designs and implements environmental and economic sustainability programs in the areas of energy, pollution prevention, transportation, and zero waste. I came to Santa Clara Law to develop the tools to make myself and my organization more effective in today’s increasingly complex business and regulatory landscape.

Whether working on legislation or litigation, regulations or transactions, the importance of understanding the nuances of the legal context of your issue can’t be overstated. Everything that happens in our world today is the synthesis of so many varying interests and influences. The better versed a practitioner can be in the structures informing an issue, the more successful he or she will be.

Santa Clara Law’s location, faculty, staff, and surrounding community make it a wonderful place not just to learn the law but to build the network and experience necessary to make a real difference. For someone already working in the field, the evening program is an outstanding opportunity to grow personally and professionally.

Sita Kuteira

he area where I grew up, Humboldt County in northern California, is beautiful, and environmental appreciation is sort of implanted in our DNA. The community rallies behind environmental causes, like sustainable logging and fishing, and promotes local and organic farming and food production. This was also where my interest in health and the environment began to grow together.

I have been focusing my studies on both health and environmental law, but I’m not exactly sure where my career is headed. I have really enjoyed environmental litigation and think it is a powerful tool for protecting natural resources. I also plan to get involved in environmental justice issues so that the health of marginalized communities can be protected along with the environment.

One thing that surprised me was that most major environmental legislation was passed with full bipartisan support and mostly under Republican administrations. It makes me more hopeful for being able to implement more effective and comprehensive regulations in the (hopefully not too distant) future.

On a less pleasant note, another thing that surprised me was how little progress we’ve made at the international level. The state of the environment right now is very worrisome and the international political sphere has been essentially at a standstill for way too long, at least as far as big moves go.

For me, Santa Clara was great because of its emphases on work in both the areas of environmental law and public interest / social justice. The two particularly came together when the Center for Public Interest and Social Justice was able to give me a grant to work for a nonprofit doing environmental litigation.

3L, Part-time/Evening program Hometown: Santa Cruz B.A., political science, U.C. Berkeley

3L Hometown: Arcata, Calif.

B.S., nutrition science, U.C. Davis

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“Climate change is the obvious issue that we will be grappling with for generations to come, and the solutions required cannot be provided by a single field such as environmental law acting alone. Challenges like this, though, will press environmental lawyers to be open, creative, and innovative.”

—Melissa Sayoc, 3L

Melissa Sayoc 3L Hometown: Manila, Philippines B.A., Business, University of the Philippines Diliman

I

am currently working as a legal intern for the California State Assembly’s Committee on Natural Resources, where I assist in the drafting and analysis of legislation on issues such as climate change, alternative and renewable energy, forestry, and environmental review.

I trace my interest in this field to my experiences growing up in the Philippines. In high school, my friends and I joined hiking tours led by conservation-minded organizations that impressed upon us the need to care for the environment. In college, I began to understand the extent to which environmental degradation was a real and pressing issue, though largely sidelined, in a developing country. Then shortly before moving to the Bay Area for law school, my cousins and I visited national parks and other famous sites like The Wave along the Arizona-Utah border. Seeing these great landscapes, I could not help contrasting them with the problems I witnessed growing up. Knowing that I would soon be equipping myself with the knowledge and skills to be able to effect change, I promised myself I would keep environmental law in mind as a career path to explore in law school.

Climate change is the obvious issue that we will be grappling with for generations to come, and the solutions required cannot be provided by a single field such as environmental law acting alone. Challenges like this, though, will press environmental lawyers to be open, creative, and innovative. Even if—and perhaps precisely because—we are lawyers, we should not forget the broader context we operate in. If we keep this in mind, I think our clients, we as lawyers, and the greater world will be made better for it.

In law school, I have learned that a lot of environmental law issues intersect with other areas of law, which at first surprised me when I used to have a compartmentalized view of things. But once I was aware of that, I began to appreciate the value of occasionally stepping back from your specialization to see the broader picture. It’s just like what they say about not mistaking the forest for the trees.

Santa Clara Law is in an excellent location, close to some of the most influential private and public actors in the field of environmental law. The mix of private citizens, law firms, businesses, government agencies, and nonprofit organizations in the region also creates a vibrant community of stakeholders. Professors Manaster and Yang also provide strong support to students interested in the field. They teach great classes and do not hesitate to assist students in any way they can.

spring 2013 | santa clara law 23

By susa n vo gel

Donald Polden Leader and Visionary

I

n 2003, Santa Clara Law convened a search committee to replace outgoing Dean Mack Player.

At the time, the school was on a steady upward trajectory. Player had put a strong infrastructure in place and had launched the Law School’s first capital campaign. The search committee, chaired by Santa Clara Law Professor Kenneth Manaster, was looking for someone to keep up the momentum.

It was clear from the quality of the applicants that the position was very desirable. One candidate, Donald J. Polden (J.D., Indiana University School of Law, 1975), stood out. He had practiced in antitrust and federal securities litigation, had taught law school, and was then dean of the University of Memphis Cecil C. Humphreys School of Law for 10 years. “He had an extraordinary set of skills to lead a law school,” says Manaster. “And he had really done his homework. He knew where Santa Clara Law had been and what it needed. He also understood our challenges at the time.”

Polden was the first candidate interviewed. “He was easygoing, friendly, optimistic, happy, and balanced,” says Professor Cynthia Mertens, a member of the search committee. “We were all impressed. Members of the committee commented after the interview that we could stop our search right there.”

Polden was interested in returning to the Bay Area.

He had attended Joaquin Miller Junior High School in Cupertino from 1959 to 1962, when his father taught ROTC at SCU. His sister was an SCU graduate and his brother-in-law a Santa Clara Law graduate. Polden had seen Santa Clara Law “become a very good law school in a dynamic part of the world,” he says. “It had a history and a mission that I wanted to be a part of.”

24 santa clara law | spring 2013

The Challenges Shortly after Polden arrived, he articulated his goals: 1. Strengthen faculty commitment to teaching and mentoring students; 2. Address space constraints; 3. Expand and strengthen curriculum choices, especially in high tech, international, and public interest; 4. Hire outstanding scholars with national and international reputations; and 5. Increase funding, leading to increased visibility of Santa Clara Law. He added that, personally, he wanted to keep teaching.

Now, 10 years later, as he resigns as dean, he is content that his goals have been accomplished. And Polden will return to teach in fall 2014.

The Path to Prominence Fundraising was a high priority. Outgoing Dean Player’s campaign “From Promise to Prominence” sought to raise $12 million over five years. Player passed the baton and Polden took off, hosting 30 alumni events in his first year.

Polden says the work done by previous deans was obvious.

“Nowhere did I receive a blank stare,” he says. “Everyone knew of Santa Clara Law and its role in Silicon Valley.

It was tremendously exciting to be associated with a law school that is so well regarded and well known.”

Under the leadership of Polden and campaign co-chairs Daniel J. Kelly ’69 and The Honorable Edward A. Panelli ’55, Santa Clara Law reached its goal 20 months early and exceeded it by 40 percent, funding faculty, programs, and 43 new endowed student scholarships.

Most of the $17.5 million raised came from the Law School’s 11,000 alumni. Many of them had never before been asked to give and were grateful. “I regularly run into alumni who tell me they are so happy that Dean Polden brought them into the Law School circle,” says Mertens.

“He had an extraordinary set of skills to lead a law school ... and he had really done his homework. He knew where Santa Clara Law had been and what it needed. He also understood our challenges at the time.”

k eit h s utt e r

—Kenneth Manaster, Professor, Santa Clara Law

spring 2103 | santa clara law 25

Right: Polden discusses the importance of leadership with law students in the Strong Conference Room. Below: Polden often joked that he moved to California for the great golfing opportunities. Here, he smiles with winners of the 14th Annual Justice Edward A Panelli Scholarship Golf Classic, including members of the firm Girardi & Keese. From left, the Honorable Justice Edward A. Panelli, Brian Walsh, Shawn McCann, Jake Courtney, Andrew Gahan, and Dean Donald J. Polden.

El l e n Ly n c h

Building for the Future

Mary Alexander ’82 has been at Polden’s side during many fundraising activities. She credits his success to his genuine interest in people, his personal warmth, and his commitment to the Law School. “He very much cares about each individual associated with the Law School,” she says.

“He really cares about Santa Clara Law and building it into the law school of Silicon Valley.”

A Star Faculty In 2003, “around 25 percent of the faculty was retiring, close to retiring, or reducing their teaching load,” says Christian Cornejo ’12, J.D./MBA, who was SBA president from 2011 to 2012. Polden was able to recruit high-profile faculty, including many national and international stars. They in turn, have attracted more stars. One-third of the current faculty joined during Polden’s tenure, including three of the four intellectual property law "stars" on the faculty.

Polden recognizes the importance of making faculty feel supported and sustained, says Mertens. He provided financial incentives for research by giving faculty members the option of petitioning for a lower course load based on their research ambition and productivity. He also raised summer research stipends four- or five-fold in order to increase faculty scholarly production. Mertens says Polden’s “ability to see potential in people and to reach out and make them feel they want to contribute has helped bring all faculty members into the fold.”

26 santa clara law | spring 2013

When Polden arrived, Santa Clara Law was scattered in 13 different buildings. “We were a small school for a long time,” says Manaster, “and we were organized as a small school even when we became a big school.” Consolidating the Law School into one or two buildings was not only desirable but necessary to maintain ABA accreditation.

Polden “took the bull by the horns,” says Manaster. By 2010, the Law School was in Heafey, Bergin, and three newly remodeled floors of Bannan. By the 2010–11 academic year, the Bannan Student Lounge had doubled in size. In 2012, the school began planning a fundraising campaign for a new Law School complex designed to alleviate space concerns for the next several decades. The 85,000-square-foot structure, to be built beginning in 2014 on the site of Heafey Law Library, will include a 250-seat theater, 60-seat moot courtroom, grand reading room, student lounge, additional classrooms, and new law library. Bannan will be renovated inside and out.

Curriculum Polden oversaw a refinement of the curriculum to match the competencies that are expected of a Silicon Valley attorney. “New lawyers today are expected to work effectively in teams, lead in their community, and work as project managers and deal brokers,” says Polden. “And in Silicon Valley they are also expected to work closely with engineers and accountants and other professionals.”

This requires both high-quality curriculum in substantive law and clinics in which students can apply what they learn. During Polden’s two terms, the Law School expanded its areas of specialization in international law, high tech law, and public interest law, and the number of legal clinics available to students and the community grew dramatically.

k ei t h s u t t e r

The Law School’s International Program flourished with new study abroad programs in Istanbul, The Hague, and Costa Rica, and with the establishment of an International Human Rights Clinic.

High Tech moved to an even higher level with Polden’s 2006 recruitment of Eric Goldman as director of the High Tech Law Institute, and the addition of Colleen Chien and Brian Love to advance the IP curriculum.

Goldman oversaw the creation of a J.D./MSIS (Master of Science in Information Systems) degree program, one of the few such programs in the country, and the recent creation of the Entrepreneurs' Law Clinic (see Page 3).

Social Justice also has thrived under Polden.

In the past year, Polden helped establish two new clinics—the Expungement Clinic, and the Low-Income Taxpayer Clinic. The Katharine and George Alexander Community Law Center opened new offices on the Alameda. Certificates were developed in Public Interest and Social Justice Law with emphases in Consumer Law, Criminal Justice, Critical Race Jurisprudence, Health Law, Environmental Law, Immigration, and Refugee Law. Polden says he is also proud of several new programs, such as the annual Jerry Kasner Estate Planning Symposium, and the Institute for Sports Law and Ethics.

“These programs extend Santa Clara Law's reach into its communities,” he says.

Walking the Leadership Walk While keeping his eye on the goals he was hired to achieve, Polden has been flexible when new opportunities and needs have arisen. One such opportunity came when an adjunct professor, Robert Cullen, told Polden of his passion for leadership education.

As an attorney and mediator, Cullen had observed leadership skills of lawyers and felt they could be taught.

This idea resonated with Polden, who had grown up

listening to his father analyze the leadership traits of military officers. Polden had also been influenced by reading The Leadership Challenge by his colleague and former SCU Leavey School of Business dean Barry Posner.

In 2005, the Law School created Leadership for Lawyers, the first leadership course for legal professionals in the nation, taught by Cullen. Two years later, Polden oversaw a Leadership Initiative, positioning the Law School to become “a national leader in empowering future lawyers with the skills and experience they need for leadership.”

In 2008, he also launched an annual national leadership roundtable, which attracts leadership educators from around the United States to Santa Clara Law to discuss how to educate lawyers and law students to acquire leadership skills and perspectives.

Polden says that leadership education for lawyers is “one of the most exciting things I’ve gotten involved with in my career in legal education.” It is something he hopes to dedicate substantial time to when he returns to teaching.

Humor Polden’s sense of humor was a nice surprise that was not on his résumé. He revealed it, says Manaster, at his first faculty meeting. “It was Jerry Uelman’s birthday. At the beginning of the meeting, Ellen Kreitzberg came in with a cake and we all sang to Jerry. Later, talking about an issue on the agenda, Don said, ‘I think there is another wrinkle to this ... ’ He then added, ‘No offense, Jerry.’”

[DEAN'S HUMOR] Over 20 years as a dean, Polden has picked up his share of dean jokes.

“A new dean comes in. The old dean says, ‘I left you three envelopes and whenever you have a problem, open one.’ She has a problem, so she opens the first one and it says, ‘Blame it on the last dean.’ That gets her through her first crisis. Six months later, she opens the second. It reads, ‘Blame it on faculty.’

That too works. Then, she has another big dustup and opens that last envelope. It says, ‘Take out three envelopes ... ’”

spring 2013 | santa clara law 27

Below: Don and Susie Polden celebrating at the Santa Clara Law Centennial Gala.

Right: At the Centennial Gala, Polden listens as Professor Ellen Kreitzberg remembers the late Mary Emery.

J O A NN E L E E

JO A NNE LE E

Celebrating the Centennial

It’s the People

The job of Law School dean has changed greatly, according to Polden. “It used to be that someone from the faculty would take the job as dean for a few years.

Today the position is more like a CEO, where you have the responsibility for creating and articulating a vision for the institution, being a public advocate for it, negotiating with regents, managing 150 employees, and articulating the purpose and mission of the organization for a number of constituencies: funders, students, alumni. It requires more skills.”

Polden needed all his skills, and more, when facing a once-in-a-lifetime event, the Santa Clara Law Centennial, a year-long celebration in 2011, which culminated in a weekend of Centennial events, including a Saturday-night gala at the Fairmont Hotel. The day of the gala began with a performance of “The Trial of Our Century,” a play written by Jerry Uelman based on the 1911 prosecution of Clarence Darrow for bribing jurors. Polden had hoped to play the bailiff, but Uelman cast him as the “slippery, slimy, shady guy, who gives the bribe,” says Polden. He played the role “neatly” according to the press, but all through the four-hour performance, before an audience of 300, Polden says he was thinking, “I have 600 people coming to dinner tonight.”

Polden swapped his shiny P.I. suit for his tuxedo and masterfully hosted the gala, giving speeches, presentations, pitches for new projects, a eulogy to beloved Law School administrator Mary Emery, and finally, “taking my wife Susie for a spin on the dance floor.” It was a wonderful day, he says, “and it meant so much to me and our Law School community.”

When asked what he has liked most about being dean, Polden is quick to answer, and with a smile. “The people,” he says, including the 3,000 lawyers who have graduated over the past decade. And Polden appreciates not just the people who agreed with him. Mertens says one of Polden’s characteristics is “his willingness to self-assess and explore his shortcomings.”

In fact, Polden says his proudest moment as dean was the result of someone telling him he was falling short. “A student who was very successful came to me and said, ‘I want to tell you that SCU Law is an exciting place because of its inclusiveness, but many members of the LGBT [Lesbian, Gay, Bisexual, & Transgender] community feel that it is not.’” Polden explains: “We started talking and working together and we took steps to open up minds and to communicate better with LGBT students in an intelligent and compassionate way.” This led to the Law School’s first annual Diversity Gala in 2004. The event, led by students and alumni, is free; corporate sponsorships raise as much as $10,000 per year for the Thurgood Marshall Civil Rights Scholarship. On a wall containing many awards, Polden points to a small black plaque, a momentum of appreciation from the LGBT student group.

Polden says the main thing he has learned from his 10 years as dean at Santa Clara Law is empathy and caring. “It is important to cultivate an understanding of what motivates other people, what excites and animates them, what they need for their own success,” he says.

“I have made a point of taking the time and having the interest to have a meaningful conversation where I can

28 santa clara law | spring 2013

Polden and Gordon Yamate ’80 celebrate a large donation from reunion classes.

Dean Polden will be remembered as a visionary, says Mary Alexander ’82. “He will also be remembered for his charm, how engaging he is, his sense of humor, how nice he is to be around, as well as for what he built: the Lawyers Who Lead program, the IP program, and the planned Law School complex.”

discover how I can help more and how I can work with others for the success of the organization.”

Conclusion Polden’s yearlong sabbatical begins in July, and he says he will enjoy hiking the Pacific Coast Trail or golfing, knowing that he has left his house in order. Also during his leave, he will serve as a Visiting Legal Scholar at the Center for Creative Leadership working on several initiatives related to lawyers and leadership. He also plans to continue advancing the Law School’s building plans and campaign during his sabbatical.

He was chosen as dean in part because of his vision for the Law School’s future. For 18 months in 2009–10, Polden, along with Gordon Yamate ’80 and Professor Brad Joondeph, worked to create a shared vision for the Law School through a strategic planning process to steer the Law School into its second century. In 2011, the Law School adopted the plan, which envisions the Law School as “preeminent in educating lawyers of conscience, competence, and compassion who will meet the leadership challenges of Silicon Valley and beyond through professional skills, commitment to community needs, and global awareness.”

NA NCY MA RTIN

Dean Polden will be remembered as a visionary, says Mary Alexander ’82. “He will also be remembered for his charm, how engaging he is, his sense of humor, how nice he is to be around, as well as for what he built: the Lawyers Who Lead program, the IP program, and the planned Law School complex.”

“Don was born to be a Law School dean,” says Manaster. “He really likes it and he does it well. It’s a terribly difficult job to consolidate the strengths of the Law School, help it grow, and to keep it connected to the University mission and to its community and social justice values.”

Polden’s successor will face a new array of challenges: decreased law school enrollment nationwide and thus decreased revenues, a weak job market for grads, and changes in legal education necessitated by market demands for lawyers who are more entrepreneurial and can hit the ground running. But Santa Clara Law remains poised to face these challenges.

Alexander says, “It will be hard to fill Dean Polden’s shoes in terms of what he is and what he has been for the school.” Manaster seconds that, saying, “We were looking for a real pro and we got one. Polden is going to be a tough act to follow.”

Susan Vogel is a frequent contributor to Santa Clara Law. spring 2013 | santa clara law 29

1

2

Alumni Connections 2013 Santa Clara Law Alumni and friends gathered at various events this winter to celebrate the spirit of the community and to acknowledge the generosity and commitment of our alumni. Gatherings have presented terrific opportunities for alumni, students, and the Law School to connect, network, and enhance the many relationships that continue to make Santa Clara Law great.

3 1 | November 2012 Dean’s Circle Evening Reception at the Adobe Lodge Left to right: Professor Cynthia Mertens, The Honorable Phil Pennypacker ’72, Jean Pennypacker, The Honorable Mary Jo Levinger ’73, and Professor Bill Woodward 30 santa clara law | spring 2013

4

2 | November 2012 Dean’s Circle Evening Reception at the Adobe Lodge Left to right: Drew Miller ’13 and Deborah Moss-West ’94

3 | November 2012 Alumni Networking Event at Britannia Arms in San Jose Left to right: Patrick Wallen ’13 and Benjamin Broadmeadow ’13

4 | December 2012 Alumni Holiday Happy Hour in San Francisco at Wingtip Left to right: John McCauley ’10, and Reed Gallogly ’10, Sarah Mattina ’11, Aaron Dawson ’11, and Megan Hamlin ’12

5

6

2013 Alumni Upcoming Events May 8 | Santa Cruz Reception May 25 | Santa Clara Law 2013 Commencement

7

June 17 | San Jose the 15th Edward A. Panelli Golf Tournament June 19 | Portland Reception June 20 | Seattle Reception September 7–8 | Santa Clara Law Alumni & Reunion Weekend 2013 at Santa Clara University

8

5 | December 2012 Alumni Holiday Happy Hour in San Francisco at Wingtip Left to right: Karen Bernosky, James Napoli ’87, Rita Tautkus ’92, and Trevin Hartwell

6 | January 2013 Alumni Celebrity Bartender Event at the Silicon Valley Capital Club Left to right: Mary Plungy McCurdy ’84, Chuck Packer ’79, and Dean Donald Polden

7 | February 2013 Alumni CLE Luncheon in Fresno Host Rick Watters (standing center) welcomes alumni to a CLE Presentation by Dean Don Polden (standing far right)

Please plan to join us at an upcoming reception near you to congratulate Dean Donald Polden as he completes his final semester as dean of the Law School. For event information and registration, please visit law.scu.edu/alumni/events.cfm or call the Law Alumni Office at 408-551-1748.

8 | February 2013 Alumni Board Executive Committee Meeting Left to right: the Honorable Raymond Davilla ’72; Bill Clayton ’74; Kristin Love Boscia ’08; Greg Vaisberg ’05; Becky Jones ’87; Roy Stanley ’06; Mike Gencarella ’97; and the Honorable James Stoelker ’74

spring 2013 | santa clara law 31

Class Action

char les ba r ry

Alumni 1969 Terrance L.

Stinnett has been recognized by Continental Who’s Who for excellence in the fields of banking and legal service. He is general counsel and secretary for Fremont Bank and Fremont Bancorporation. Terrance spent 36 years with the firm of Goldberg, Stinnett, Meyers & Davis and its predecessors.

1972 William “Bill”

Pursley writes he is “practicing Workers’ Comp law all over the state of California, representing both sides of the fence.”

1976 Steve Haley is

president of the Santa Clara County Bar Association for 2013. He is an attorney at Groom & Cave in San Jose. Rise Jones Pichon B.S. ’73 was elected as the assistant presiding judge of the Santa Clara County 32 santa clara law | spring 2013

Superior Court. She previously supervised the criminal division.

1977 Brian Back has

been appointed by Gov. Jerry Brown to the State Advisory Committee on Juvenile Justice and Delinquency Prevention. Back has been a Ventura County Superior Court judge since 1998.

Back was an attorney with Arnold Back Mathews Wojkowski and Zirbel LLP from 1990 to 1997, Arnold and Back from 1989 to 1990, and Nordman Cormany Hair and Compton LLP from 1977 to 1989. Ron Ball has joined Best Best & Krieger in its San Diego office. He retired in December as Carlsbad city attorney after 26 years.

1982 Laura Casas Frier

was re-elected to the board of trustees of the Foothill-De Anza Community College District in Santa Clara County.

1983 Henry Manayan

is chief operating officer of Discovery Minerals Ltd. He has served as chairman, CEO, board director, or executive officer to numerous portfolio companies including Terra Solar Global, which was recently sold.

He also has been an officer, director, or legal counsel to numerous companies and organizations in four countries. Mark P. Rapazzini is a shareholder at Heffler Claims Administration, which provides administration in antitrust, securities, employment, labor, mass tort, consumer and government enforcement matters. Prior to joining Heffler, he was a senior vice president at Rust Consulting and was chief operating officer at RG2 Claims Administration.

1985 Joan Markoff

has been appointed chief counsel of the California Department of Human Resources. Previously, she was chief counsel at

the California Department of Personnel Administration.

She served in many positions at the California Department of Toxic Substances Control from 1991 to 2011, including assistant chief counsel.

From 1988 to 1991, she was a deputy state public defender. Tom Squieri is president and CEO of Granite Rock Co. Previously, he was the company’s vice president and general counsel. He also worked for two Bay Area firms that specialized in construction litigation: Pettit and Martin, where he became partner in 1993, and the San Jose office of Coudert Brothers.

1986 Helen Elizabeth

Williams was appointed to be a judge on the Santa Clara County Superior Court by Gov. Jerry Brown. She previously was a staff attorney with the San Jose-based 6th District Court of Appeal since 2004.

She also worked for several San Jose law firms, including Robinson and Wood.

1989 Edward Kwok

joined Hogan Lovells as a partner in the firm’s intellectual property practice, based in Palo Alto. Kwok’s practice focuses on patent prosecution, patent and trade secret litigation, IP portfolio assessment and development, infringement and validity opinions, and licensing.

He has extensive experience in representing clients in intellectual property litigation in state and federal courts and at the ITC.

1990 Adrienne Grover

has been appointed as an associate justice of the Sixth District Court of Appeal, after serving as a judge for the Monterey County Superior Court since 2002. She served as county counsel for Monterey County from 1999 to 2002 and as deputy county counsel from 1995 to 1999. She worked as assistant county counsel and deputy county counsel for Calaveras County from 1992 to 1995, and was an associate at Long & Levitt from 1990 to 1992.

1991 Lisa Herrick is gen-

eral counsel for the Santa Clara County Superior Court.

She has a background in public sector law, including six years as senior deputy city attorney for the City of San Jose, and more than four years as a deputy county counsel for Santa Clara County. She also was a partner at McManis Faulkner, where she worked on civil litigation, criminal defense, and family law. She also served as president of the Santa Clara County Bar Association.

1992 David Shuey is a

partner at Rankin, Sproat in Oakland. He practices insurance defense, including general liability, construction defect and injury, and professional malpractice. He is also a two-term mayor and city councilmember in Clayton.

He has been on the Council since 2002 and is serving his third term. He has been married for 20 years, and he and his wife, Shelly, have five children, three of whom were adopted from China and Ukraine.

1994 Deborah MossWest has been appointed by the Legal Aid Association of California to the California Commission on Access to Justice. The 26-member commission of lawyers and judges, as well as academic, business, labor, and community leaders, was established to explore ways to improve access to civil justice for Californians living on low and moderate incomes. The commission was instrumental in establishing the $10 million Equal Access Fund for civil legal services to the indigent and works closely with the Judicial Council to improve access to the courts.

1995 G. Michelle

Ferreira, managing shareholder for Greenberg Traurig’s San Francisco office, was selected to the Daily Journal’s “10 Emerging Law Firm Leaders in California.”

The list highlights rising stars within law firms who have demonstrated great leadership over the past year. The article discussed Ferreira's multiple roles in Greenberg Traurig’s San

Francisco office and her leadership generally. Ferreira also received the 2012 V. Judson Klein Award for excellence in the tax law field by the State Bar's taxation section.

partner at Orrick Herrington & Sutcliffe.

from 2001 to 2006; and corporate counsel and director of IP at Enuvis Inc. from 2000 to 2001.

McKenzie was an associate for Howrey LLP from 1998 to 2000 and patent agent and design engineer at Intel Corporation from 1993 to 1998. Robert P. Rutila has returned to Ridenour, Hienton & Lewis in Phoenix.

He practices commercial litigation and is focused on construction law, landlord/ tenant disputes, creditor’s rights, real estate, banking, and general-contract issues.

Clark Stone joined Hogan Lovells as a partner in the firm’s intellectual property practice, based in Palo Alto.

Stone’s practice focuses on litigation relating to patents, trademarks, Internet privacy, trade secrets, and business disputes for high technology clients, in federal and state courts and the ITC. A past president of the Santa Clara County Bar Association in 2007, Stone is a volunteer arbitrator for the Santa Clara County Bar Association’s Attorney-Client Fee Dispute Arbitration program and for the State Bar of California’s Mandatory Fee Arbitration program.

1998 Meredith McKenzie

1999 Michelle Montez

1996 Shauna L. Chastain B.A. ’91 is president of the Solano County Bar Association, and Bay Area Chapter director of the Association of Certified Family Law Specialists.

Dennis Chiu was elected to the El Camino Hospital Board of Directors in November 2012. He is a business attorney in Sunnyvale. He is vice chair of the Santa Clara County Planning Commission, where he has served since 2000. He is also a commissioner on the City of Sunnyvale Housing and Human Services Commission. Dianne Sweeney is president-elect of the Santa Clara County Bar Association and will serve as its president in 2014. She works for Pillsbury Winthrop Shaw Pittman in Palo Alto.

1997 Jessica Perry is a

of Los Gatos, Calif., has been appointed by Gov. Jerry Brown to the Dental Board of California. McKenzie has been vice president and deputy general counsel at Juniper Networks since 2012. She was senior director of intellectual property at Symantec Corporation from 2006 to 2012; director of litigation, licensing and IP for Cypress Semiconductor

Fisher is a board member of Storyteller Children’s Center, a preschool for homeless and at-risk children in Santa Barbara. Fisher has practiced municipal law for 12 years, working as an assistant city attorney for Santa Barbara.

She assisted in the formation of the Santa Barbara Public Library Foundation, a nonprofit corporation seeking to raise funds for

spring 2013 | santa clara law 33

CL A S S A CT ION

2003 G. Ross Trindle

III is partner at Best Best & Krieger in Ontario, Calif., where he is leader of the firm’s police services practice. He also represents clients in complex federal and land use litigation. He is

district counsel for the South Montebello Irrigation District and has served as deputy city attorney for Arcadia, Azusa, Claremont, Colton, Covina, and Shafter for public safety and public liability issues.

2004 Ricky Le is chief of staff to newly elected East Bay Rep. Eric Swalwell.

Le previously was deputy chief of staff for Rep. Zoe Lofgren ’75.

2007 Emiko Burchill of Sacramento, Calif, has been appointed by Governor Brown as special assistant for policy at the California Natural Resources Agency. She was a contract attorney at Olson Hagel and Fishburn LLP in 2012. She was an executive fellow at the California Fair

Political Practices Commission from 2011-12 and was an intern at the office of Assembly member Toni Atkins in 2011. She served as a volunteer attorney at My Sister's House from 2010-11 and an attorney at the Law Offices of McDowall Cotter from 2007-09.

2008 Phillip Lee is a

clerk at the Federal Circuit.

Previously, he was a clerk at the U.S. District Court for the Central District. Since law school, he has also been an attorney at Alston & Bird, and earned a masters in biotechnology at Columbia.

2009 Alexandra

Pavlidakis married Brandon Douglass ’10, B.A. ’05 on Oct. 6, 2012, in San

Mark your calendar!

SANTA ClARA lAw

reunion weekend S eptember 7 - 8, 201 3 Return to campus for a wonderful weekend! Reminisce with your classmates and reconnect with faculty and staff.

www.scu.edu/lawreunionweekend Questions? Contact Susan Moore in the Law Alumni Office: 408-551-1763 or samoore@scu.edu.

Law Reunion Classes 1963 | 1968 | 1973 | 1978 | 1983 | 1988 | 1993 | 1998 | 2003 | 2008

34 santa clara law | spring 2013

Francisco. She is an attorney at Wilson, Sonsini, Goodrich & Rosati in Palo Alto. He is in private practice in Redwood City.

2011 Jessica Jackson was a delegate to the Democratic National Convention. Ravi Mohan is a patent litigation associate with Morrison & Foerster. He spent three months working in Japan, where he focused on matters related to the Apple v.

Samsung case.

2012 Andrew Freyer is

an associate at Dorsey & Whitney’s patent practice group in Denver. Elizabeth Nuss has joined Gaw Van Male, a law firm specializing in wealth preservation, business law, and related litigation in Napa.

pho t o c o u rt e sy o f Seb n em N . Kim ya c iog l u

the Santa Barbara public libraries. Fisher has served as a board member of the Junior League of Santa Barbara and is a past president of both the TriCounties Local Government Lawyers Association and the Barristers’ Club of Santa Barbara. She and her husband have three children.

Joanne Pasternack was named one of San Jose Business Journal’s 2013 Silicon Valley Women of Influence.

Sebnem N. Kimyacioglu ’12 recently had the opportunity to play for one of the best basketball teams in Europe, filled with American and European Olympians. She writes: “I regained my passion for sports—and my desire and hope to eventually practice law involving sports—while taking Ron Katz’s sports litigation class.” She recently played for Galatasaray Sports Club in the Turkish league finals in Istanbul, Turkey.

In Memoriam 1949 John Klein, Sept.

12, 2012. He grew up in San Francisco and attended St. Mary’s College. He was a World War II veteran, serving as a captain in the U.S. Navy.

He worked in Sacramento in the legal counsel’s office of the State Legislature. He was an assistant city attorney in Santa Rosa and a city attorney for Cloverdale, Healdsburg, and Sonoma. In the 1970s, he teamed with others to build Vigil Light Apartments, a Santa Rosa housing development for low-income seniors. In 2011, a community center at the apartments was dedicated in his name. He received the Career of Distinction Award from the Sonoma County Bar Association in 2006.

1957 Marshall Bean, April

18, 2012. An Army veteran, he was a graduate of San Jose State College. He practiced law for 35 years, and taught business law at San Jose State University for 40 years. He was past president of the San Jose Host Lions Club. He is survived by his wife, Nancy, four children, 10 grandchildren, and two greatgrandchildren.

1973 Arthur William

Anderson, Jan. 13, 2013.

Born in Shanghai, China, he was raised in San Francisco, and was a graduate of UCSF Medical School. He practiced orthopedic surgery in San Jose, and served as chief of orthopedics, chief of surgery, and chief of staff at O’Connor Hospital. Survivors include his wife, June, five children,

In Memoriam Page Humphrey Vernon (1952–2013) Page Humphrey Vernon ’80, Feb. 20, 2013. She graduated from Trinity College in 1974, and Santa Clara Law in 1980, where she played on a women’s intramural flag football team called the “Eleven Easy Pieces.” Between 1979 and 1983, more than 25 female Law School students and professors played on the team, and there is now an endowed scholarship in the team’s name. Vernon began her legal career in Chapel Hill in 1981 as assistant district attorney for Orange and Chatham counties. While raising a family, she wrote for the UNC School of Government before joining the law firm of Barber, Bradshaw and Vernon in 1991 where she practiced until 2002. Her special interest in children and education then led her to the Juvenile Criminal Law Clinic at the UNC School of Law and later Duke University School of Law’s Children’s Education Law Center. After several years as a volunteer guardian ad litem, Vernon was elected District Court Judge and served from 2008 through 2011. Survivors include husband, Jim, sons Benjamin and Amos, and brothers, Peter, John, Tom, and Mark Otis.

12 grandchildren, and 11 great-grandchildren.

1979 Gerald Kimble Jr.,

Sept. 21, 2012. He served 21 years as a naval flight officer, retiring as lieutenant commander. As an attorney, he was a prosecutor and a county attorney prosecuting child abuse and neglect. In private practice, he was a guardian ad litem for abused or neglected children and disabled adults. He was the first board president of Pikes Peak Family Connections in Colorado, teaching nurturing classes for families and establishing KPC Kid’s Place, a crisis respite center for children. He was honored in 2009 by the El Paso County Bar for his work to protect children. Survivors include his wife, Cheryl, a daughter,

and two grandsons. Isamu “Sam” Yoshida, July 4, 2012. Born in Japan, he served in the U.S. Marine Corps in Vietnam. A licensed engineer, he was a member of the American Society of Civil Engineers, American Military Engineers Society, Wilderness Unlimited, and Rotary International. He worked in government and private sector jobs, including naval facilities engineering in San Bruno and San Diego, the General Services Administration, Seville Group, and the Parsons Brinckerhoff international engineering firm in San Jose and San Francisco. Survivors include his wife, Gail, and three siblings.

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spring 2013 | santa clara law 35

CL O S I NG AR G U M E N TS

The Problems with Software Patents (Part 1 of 3)

By Eric Goldman, Professor, Santa Clara Law

T

he U.S. patent system largely treats all innovations equally, but innovation often works quite differently in different industries. In particular, the software industry differs from other major innovative industries—such as computer hardware and biotech/pharmaceuticals—in several key ways, and those differences can create (and have created) significant friction for the patent system.

Software patents have also created big—and expensive— problems for companies throughout all sectors of our economy.

Pretty much as soon as they get venture financing, start-up companies are getting approached by “patent trolls” with offers they can’t refuse: pay me now or pay your lawyer many times that amount to prove you don’t have to pay me. And large companies, especially in the smartphone industry, are paying literally billions of dollars to acquire patent portfolios to keep those portfolios from falling into the wrong hands and with the hope that large patent portfolios will fend off competitor threats (i.e., provide the company freedom to operate its business without interference from competitors’ patents).

This article is the first of a three-part series recapping a conversation we had earlier this month at Santa Clara University entitled “Solutions to the Software Patent Problem.” In this essay, I’ll explain how innovation in the software industry differs from other industries and some of the resulting problems associated with software patents. In subsequent pieces, I’ll talk about challenges to fixing the problems and explore possible fixes.

What’s unique about software? Three main differences: 1) Software Has Short Innovation Cycles Software iterates quickly. Most software programs, and features of those programs, have an effective commercial life of only a few years. Then, new software developments quickly render prior innovations obsolete. Contrast this with mechanical innovations, some of which may have commercial lives of decades, and pharmaceutical innovations, which may retain commercial value indefinitely.

Some implications of the short innovation cycles in the software industry: Software Has Significant First Mover Advantages.

Software innovators can recoup some of their R&D investments simply through de facto marketplace exclusivity from being the first mover. An example: assume that a particular software innovation has a two-year commercial life cycle, and it takes competitors six months to bring a matching product to market.

In a situation like this, the first mover gets one-fourth of the 36 santa clara law | spring 2013

maximum useful exclusivity period simply by being first to market. In some cases—many cases?—the exclusivity period provided by the first mover advantage is more than enough to motivate software R&D without any patent protection.

Software’s Life Cycles End Before Patents Issue. As a practical matter, the commercial lifespan of a software program or feature (before being mooted by new innovations) is usually shorter than the time it takes the U.S. Patent & Trademark Office (PTO) to resolve a patent application—a process that often takes four years or more. So invariably the patented innovation will be obsolete by the time the Patent Office decides if it’s worthy of a patent.

2) Software Will Be Produced Without Any Patent Incentive We principally justify patent law on utilitarian grounds: that social welfare improves by providing innovators with an economic reward in the form of a limited-term marketplace exclusivity. The utilitarian argument leads to patent’s “quidpro-quo”: Society gives innovators something really valuable— monopoly-like rights to exclude competition—in exchange for a number of socially valuable deliverables from innovators: investments in R&D, public disclosure of those R&D results, and eventually the unrestricted rights to replicate the innovation.

It’s great when the quid-pro-quo model works as designed, but that’s not always the case. One way the quid-pro-quo model breaks down is if we give up the quid (the rights to exclude) when we would have gotten the quo (the R&D investments and public disclosure) in any case. In those circumstances, society “overpays” for the innovation.

There are several reasons to believe that society overpays when it provides patent protection for software.

Copyrights and Trade Secrets Provide Adequate Production Incentives. Multiple aspects of software can qualify for copyright protection: the source code, the compiled code, the visual layout, the documentation, possibly even the aggregation of menu commands (the “structure, sequence, and organization” of the software). Copyright protects only the expression of ideas, not the ideas themselves, so the ideas may be freely reused by competitors and others. However, the line between ideas and expression in copyright is hardly clear (see, e.g., my posts about EA v. Zynga and the Spry Fox v.

Lolapps disputes), giving even more berth to copyrights’ scope.

Trade secrets also protect software source code and sometimes other aspects of software, such as proprietary limited-

distribution documentation. While trade secrets won’t prevent copying of widely available software, even in that case they can still slow down the competition (and thereby extend any first mover advantage) by preventing the competitors from obtaining shortcuts to facilitate knockoffs.

Thus, even if it’s not complete protection, the combination of copyright and trade secrets can provide substantial intellectual property protection for software. Historically, this combination has provided adequate incentives for the software industry.

During the first several decades of the software industry—a period which saw explosive industry growth—software patents were rarely obtained and even more rarely enforced.

Software Vendors Can Restrict Competition Without Patents. Software can have substantial lock-in effects that can thwart competition without patents. For example, software users may become locked into one vendor’s offerings due to proprietary file formats, the difficulty of learning/re-learning menu commands or keystrokes, a developer community that creates valuable apps specific to the software, and user investments in their own proprietary customizations (such as the infamous example of macros in Lotus 1-2-3). We might lament the competitive distortions associated with these lock-in effects, but so long as the software vendor doesn’t break the law, they represent a crucial explanation for software innovation without patent incentives.

Software Gets Produced Without Any IP Incentives at All. The free and open-source software community provides another example of software’s quo without patent’s quid.

In those communities, people work collaboratively without any individual contributor getting any intellectual property protection for their contributions. In many cases, this is because contributors have other ways of monetizing their efforts, such as offering maintenance or customization services or building a reputation for programming expertise that leads to job offers.

(I explore these alternative monetization methods in my article comparing Wikipedia and the FOSS community). Further, some free and open-source software contributions are purely altruistic, made without any financial expectations at all.

Collectively, the free and open-source software community has proven that lots of software—even large-scale enterprise-class software—will be produced without any patent incentives.

3) Other Problems Software Gets Patented at Too High a Level of Abstraction.

Stripped to its basics, software gathers, manipulates, or displays data. There may be novel ways of accomplishing those goals, but the true novelty typically is limited to some arcane implementation in the software code, not the concept of gathering, manipulating, or displaying data. Unfortunately, too many software patents claim protection at the highest level of abstraction (i.e., “moving data on a network”), not at a lower level like the more mundane implementation of that concept.

The result is overbroad software patents that overclaim their true novelty. The overclaiming should lead to patent application

denials on numerous grounds, including failure to enable, failure to satisfy the written description requirement, and obviousness.

But if the PTO doesn’t aggressively screen the patents on those grounds, bogus patents get through the system. That’s happened way too often.

The USPTO Mishandled Software Patent Applications.

Furthermore, for a long time—a decade or more—the PTO did not adequately research the prior art applicable to software patents. Patent examiners typically focus their prior art searches on the database of existing patents. This means that when there’s a watershed technological change—like the initial wave of software patent applications—the examiners don’t see a lot of applicable prior art in their existing patent database. Therefore, they grant patents that don’t deserve protection. Eventually the patent database becomes rich enough with prior art to reach an equilibrium, but the errors in the interim produce a batch of legacy patents that never should have been issued.

Software Is Too Hard to Describe Precisely. Related to the abstraction problem, the boundaries of many software “innovations” are too hard to describe precisely. (In contrast, the specific implementation methods would be much easier to describe). Because of the semantic challenges, the resulting patents are so opaque that no one can understand what they mean. This also means that the patent owner can adopt expansive interpretations of the patent boundaries and then use the threat of patent litigation over those ambiguous borders to extract cash from potential defendants—even those who would ultimately be outside the patent’s scope if they invested in challenging the patent owner.

Patent Research by Subsequent Innovators Is Too Costly.

In theory, product developers can check the patent database to see if they are transgressing someone else’s patents. In practice, this doesn’t work in the software industry for at least two reasons. First, as mentioned, the imprecision of software patents makes it hard for developers to realize that the patent owner thinks the patent covers the developer’s efforts. Second, large software programs may have millions of lines of code, while it’s possible to obtain patents for functionality that can be expressed in only a few lines of code. The result is that a single software program could potentially implicate thousands, or even tens of thousands, of patents. The costs to find these patents, research their applicability, and then where appropriate negotiate licenses to even a small fraction of those patents, would vastly exceed the potential economic returns from most software applications.

Thus, software developers rationally choose not to research the patent database at all and instead “fly blind.”

There are even more problems with software patents, but this brief summary lays the foundation for the remainder of this series, where I will examine some possible solutions to the problems associated with software patents.

This article first appeared on Forbes.com. Visit law.scu.edu/sclaw for a link to parts 2 and 3 of Goldman’s essay. spring 2013 | santa clara law 37

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