A nice (and amusing) post here about why George Mason was the only law school to submit a brief in support of the military in the Solomon Amendment case.

(While the other 'elite' law professors were summarily shot down.)

From the NYT article:

On Monday, the best minds in the legal business struck out. The vote was 8-to-0 against them — a shutout, a rout, a humiliation. It is one thing for liberal academics to fail to persuade conservative justices like Antonin Scalia and Clarence Thomas. But the law professors did not produce so much as a sympathetic word from liberal justices like Ruth Bader Ginsburg, David H. Souter and John Paul Stevens. (The newest justice, Samuel A. Alito Jr., did not participate.)

And if the result was not embarrassing enough, there was also the tone of the court's unanimous decision, written by Chief Justice John G. Roberts Jr. In patient cadences, the kind you use in addressing a slightly dull child ...."

Here is a piece by George Mason Law Professor David Bernstein on the matter, and his post on the Volokh Conspiracy blog.

Also, a piece in The Weekly Standard by Professor Peter Berkowitz, also of Mason.

TaxProf Blog has an excerpt of an article about my law school (Mason) in the National Review, as well as a couple of links (here and here) to the Volokh Conspiracy, a blog where some Mason Law professors (among others) regularly chat about things.

The article talks about the conservative character of the school, and its rapid rise in quality, rankings, and reputation over recent years. From what I've heard, we should be ranked in the 30's in the upcoming U.S. News rankings, and are ranked much higher by other sources.

I've come to realize over my three years at the school, that although I had nary an inkling of it at the outset, I would likely have been much less happy at another law school. At Mason, economics is used as a tool and model for explaining not only the effects of law, but also the ex ante motivations for law. Although a few professors rely on classical moralistic or ethical bases for their reasoning about the law, most attempt to find less squishy principles to more firmly ground their reasoning.

This fits me well, as an erstwhile and still occasional software engineer; it also fits me as a rational, pragmatic, and economic conservative. I'm glad that I happened to stumble upon one of the few schools that could provide me with the mental tools to learn and think about the law in ways that I believe make much more sense than the approaches taken at most other law schools.

I believe that the upward trend of the school will continue, not least because there is a real need and desire for the more conservative approaches it fosters. There is a large body of smart people out there who are not hostile to capitalism, but find themselves somewhat unwelcome in much of academia, partly because their approaches make sense, but don't always make people feel warm and cuddly.

Good stuff. :)

An interesting story in the International Herald Tribune about the original inventor of the portable music player, and his legal battle with Sony...

A good, short article in the Economist makes the points that patent detractors often ignore. RIM has made some bad decisions.

The real lesson of BlackBerry

Unfortunately, the term "blawg" seems to be entrenched at this point, but I want to urge all the legal bloggers out there to come up with a better term.

Why? Firstly, I can't stand it. Secondly, it's homophonous with "blog," making it useless in actual English speech. Finally, it looks ugly. "Legal blog" sounds much more elegant, but is two words rather than one. I think I still prefer this, though, until a more palatable option surfaces...

You don't want to be the guy who has to explain to his client why he lost this one:

A prolix complaint larded with conclusory language, like the Complaint here, does not comply with these fundamental pleading mandates.
. . .
This Complaint, which is a blunderbuss of mostly conclusory pleading, does not meet that burden, and it was properly dismissed.

Brehm v. Eisner, 746 A.2d 244 (Del. 2000)

SSRN-Do Patents Facilitate Financing in the Software Industry? by Ronald Mann

This is a very interesting article, arguing that although software patents may not be helpful to early-stage startups, they are likely quite helpful to slightly more mature startups, probably even moreso than for large and established firms.

Scientists create animals that are part-human - Stem Cell Research - MSNBC.com

Science continues to challenge the cultural assumptions of humans about their centrality in the vast scheme of nature. Although some long ago realized that we are but a small part of a massive evolutionary phenomenon, some will continue to cling to the uniqueness of man's sentience on Earth as proof that man must always hold that claim; such a belief is unwarranted.

We ourselves are beginning to create our own versions of 'life', in artificial intelligence, and in the biological sciences. This article talks about animals that combine human and other-than-human cells in one organism, and their ethical implications.

Although we can't deny or stop such progress, we must consider how to properly fit it in to our ethical frameworks. The following quote from the above article strikes me as a slightly less-than-optimal way to handle the problem of sentient mice...

Stanford law professor Hank Greely, who chaired the ethics committee, said the board was satisfied that the size and shape of the mouse brain would prevent the human cells from creating any traits of humanity. Just in case, Greely said, the committee recommended closely monitoring the mice’s behavior and immediately killing any that display human-like behavior. (emphasis added.)

Building a new-idea factory | Newsmakers | CNET News.com

This is an absolutely great interview with Nathan Myhrvold, founder of Intellectual Ventures. He talks about invention, basic research, and how wonderful it is that we have a patent system that can support such things.

He also talks about his new company, and its goal of allowing inventors to invent and receive compensation in proportion to the value of their ideas, but without having to found their own companies.

Although I'm still a law student, I have been working on and off as a law clerk. I have not blogged, however, about anything related to my employment, and I've recently realized just how well-considered this decision has been.

There are many legal blogs out there now, and quite a few of them on intellectual property issues. If you take a look around, however, you'll start to realize that many of them are sponsored by a firm, and are fairly professional-feeling. Many offer only factual information, and no opinions on the merits of particular cases. It's somewhat ironic that the only ones opining about the merits of cases are non-lawyers...

But, as I've come to realize, it's all too easy to opine about a case and later come to realize that you or your firm are going to be involved in it. At that point, you may have already created a situation that will harm your case, especially if you've criticized that client's position, or even dismissed a theoretical legal point that you would need to argue for in the case.

I have already seen at least two cases in the news, which I thought about commenting upon, but did not, due to such concerns. I later discovered that in both cases, a firm I was working for had an interest in the outcome. To be perfectly clear, I expressed no opinion publicly regarding either case, but without being aware of such issues, an unsuspecting and less conservative (or trepidatious) law student could easily create a difficult situation.

So it's unfortunate, but the realities of legal ethics seem to dictate that I may only comment upon the most theoretical and general legal issues in public, or possibly on cases completely unrelated to my area of the law. Purely factual news would also seem to be fine (athough it could relate to issues of actual notice), but that just isn't as interesting to me.

I would like to hear the opinions of any legal bloggers on this subject as well.

It's always interesting and exciting for me to think about the future potential of China.

Gary Becker and Richard Posner speculate about its economic and political potential a bit on their blog. As I've been looking into their legal issues with intellectual property lately, I would like to note some things regarding the rule of law in China -- some posters on that blog have stated strongly pessimistic opinions about it.

Lately I've been working on a paper about China's implementation of the TRIPs agreement (Trade Related Aspects of Intellectual Property), and have been looking at a number of Chinese language sources for information. So I made up a little table of the most common words related to IP in Japanese, Chinese, and Korean to see the similarity.

Many people talk about how expensive IP lawyers can be, but it takes a lot of very technical work, which always costs money. As Robert Heinlein always said, there ain't no such thing as a free lunch (TANSTAAFL).

But sometimes, there is. Firms almost always want to get a variety of experience and give something back to the community. Few people on the net seem to be aware of the range of pro-bono services offered by firms. Here is a list recently compiled by the ABA IP section. There are many others as well, I'm sure. So if you have an IP problem and don't think you have the funds to handle it, consider looking for a firm that might help you on a pro-bono or contingency basis.

Three D.C. area game shops have been raided and two people arrested for modifying game consoles to play pirated games.

From the article:

Authorities arrested two store employees on charges of conspiracy to commit copyright infringement and conspiracy to traffic in a device that circumvents technological protection measures, the ESA said.

This restriction comes from the DMCA, which prevents circumvention of technological measures to protect copyrighted works.

I actually have a modded PS2 just to play imported games, because PS2 games are tagged with a region code making it impossible to play games from other regions. DVD players use a similar scheme. Without the modded machine, I would have to buy a separate console to play Japanese games. Looks like I might have to do this. In my opinion, since region coding doesn't protect a copyrighted work per se, there is a basis for saying that region coding would not fall under this provision of the DMCA... It would still likely be a breach of the license agreement for purchase of the game, if they put it in there...

Today, President Bush H.R. 4818 into law. The Consolidated Appropriations Act provides for restructuring and increasing most PTO user fees.

The new fees apply immediately. The change even extends to any fees paid earlier today before the President signed the bill.

One significant change is the imposition of three separate fees for filing, searching, and examination, all of which must be paid at time of filing. See www.uspto.gov for more information.

Notice from the Patent Office.
Fee Schedule.

More information at IP Updates.

Ernie Miller argues often against the INDUCE Act. I happen to agree that the act is too broad, but I do think there is a place for law that prohibits true inducement of infringement, as long as it is properly tailored.

However, Ernie presents the argument that p2p networks are hard to regulate or control, seemingly as some sort of reason that legislation should not go forward, or some justification for p2p networks in and of themselves. Actually, I'm not quite sure what this argument is supposed to achieve other than some sort of glee in the apparent impotency of Congress to stop p2p networks, which Ernie obviously is for.

Well, I am for p2p networks too, but not when they are specifically tailored to induce copyright infringement, as some have been in the past.

At any rate, the argument that p2p is unregulable is out of place. There are quite a few things that are hard to regulate with law, but we figure out ways to do it anyway if it's necessary and desirable to our society. For instance, how can we regulate drugs? Presumably, growing pot is just about as easy as downloading a p2p app from an overseas server. How is it that we can still have laws that have a significant effect on marijuana consumption? We do...

My point is that if p2p is hard to regulate, and there are any serious social or economic problems caused by its widespread unregulated use, no one should be gleefully declaring its unregulability, or that our laws are impotent or ineffective. In such situations, we need to find ways to regulate that preserve the benefits of a technology, while simultaneously suppressing the detriments.

Certainly, if I were in the market for a nuke, I'd be happy to pronounce that the laws of the U.S. could do nothing to stop me in my endeavors. But this doesn't at all address whether the technology may have problems or harmful effects. If the technology does, we need to find ways to regulate it.

Where do I begin?

For some reason, blogging became less than seductive to me over the last few months. I think finishing my first year of law school had something to do with it. Rather than feeling I wanted to blog about it, I felt like I just wanted to get off the treadmill for a while.

I also felt like I should stop trying to pontificate about things, now that I've been so humbled by what I didn't know upon entering law school. It has widened my horizons more than I can describe. It has reconnected me with the idea that logic and technology must interface with humanity at some point. The point of intersection is often the law, and it's usually based on some very deep philosophical principles that only the best law professors force you to think about, and only the best students actually figure out. Everyone else just muddles through.

So I finished exams in May. I lost a year of my life, basically. I barely remember anything but studying, for 9 months. Amazing. But I also gained all the things I've been describing. I even became more responsible. And I will have to be even more responsible yet. More on that later...

I can say with reasonable satisfaction that I finished in the top 25% of my class. I could have done much much better, but many things held me back, including my cluelessness about simply how to study. I never really had to study properly before. I could always get by just by pulling all-nighters the last couple of nights before a big due date. Now it's different. There's just too much information.

In computer science, understanding is 85% of your work. If you understand everything, you're pretty much golden. In law, it is not that way. You have to cram a ridiculous amount of information into your head before you can even begin to 'understand.' Then you have to synthesize all that information, distill it, and try to understand it. It's not like looking at an equation or proof or algorithm and just thinking through it. It's more like taking a whole bunch of algorithms that researchers may have come up with, and trying to distill the most salient principles from them, developing a new algorithm that incorporates the principles of all its predecessors.

I've also realized that if there's something out there someone is doing that I think is hard, I know I can do it too. There is almost nothing too tough for me to take on anymore.

The law is an amazing thing. I wish more people knew what I now know about how it works, why it works, and how it should continue working. Particularly our beautiful system of the common law. Yes, judges make law, and it rocks. It is an amazing institution, one we should continue to take advantage of, and attempt not to derogate for merely political ends.

I am now President of the IP law society at George Mason, which will be great fun over the next year.

Yes, even most of a summer later, I'm still in shock.

I'll be back... ;)

An interesting article in the Christian Science Monitor about the adoption of jury trials in Japan. This, along with drastic legal education reforms, may radically change Japan in unforeseen ways. Very very interesting... :)

I've got my civil procedure test Monday night. Yesterday I went to BarBri to watch their 7 hour review video. It was a good way to keep myself engaged and get through all the material. For those of you that don't know, civil procedure is just all about the procedural rules of federal courts, with a bit about the states, although they're all different...

Lots and lots of rules to go over..... only one more after that, which is Criminal Law on Thursday. Then I'm actually done with my first year... So close, yet so far away.

Welp, I'm afraid I botched my contracts test. I'll have to try to really do well on my others to compensate, but these things are notoriously tough to predict anyway, so maybe I did fine after all...

I have Torts tomorrow. I'm burned out. I have to finish going through my cases still -- maybe 20-30 to go out of over 100. I have a lot of good ideas, but I have to get them down. We're only allowed 3 sheets of paper. I have to get them done sometime tonight.

I can't wait until this is over. Just a couple more weeks.

I've disabled comments again because of the human scum spammers. I'll turn 'em back on after movabletype 3.0 comes out.

Well, it's time.

I have my final persuasive memo due tomorrow night, and my first exam on Friday. My last classes are tomorrow, and just a few review sessions between then and Friday's exam, which happens to be Contracts.

I have about 4 days to study for each, except for the last one, Criminal Law, for which I only have 2 days. Criminal Law is almost all "black letter" with this professor, and there's just not that much difficult material in general as compared to Contracts or Torts, etc., so I should be ok.

Wow. I'm going to be in shock for quite a while, simply because I can't believe a whole year of school has come and gone. I just have to prevent myself from thinking about anything other than law for the next few weeks, and make sure I keep up the intensity.

As an aside, I've been elected as the president of our IP Law Society here at George Mason. I have grand designs for our group, so it should be fun. :) I hear Larry Lessig is going to stop by our school next year, so we'll have to get together and argue... hehe.

Slept 3 hours, got up at 7:15, came to school and read at Starbucks for 1.5hrs. I have to get at least 6hrs sleep from now on, cause that last 3hrs I'm really not getting enough done. I am ready for class today though...

I have 2 weeks of school left before exams. Tonight my friend and I did a mini-practice test provided by our contracts professor, taking 2 hours rather than 1 because we're not yet up on everything. Writing his exams requires profuse citations to the Restatement (Second) of Contracts, the UCC, and cases.

I identified most of the issues, invented a few good ones out of almost thin air, and generally figured out that I have the right basis, but need to study a lot more, which is what I had thought anyway. It reminded me of the exam last semester, which is good... But unfortunately, I didn't have enough to say about a few of the questions. I have to figure that out....

I have birthdays and Easter and student group meetings coming up these 2 weeks too. Crazy. I'm going to sleep less and less. Maybe if I'm hard core, I can get all my studying and preparation done this week, and actually be well-prepared when the time comes...

I had to skip class yesterday to rewrite my memo for my moot court application. We have hundreds of pages of reading this week, and I'm behind now, but I have to just skim because I need to get my stuff together for exams.

Only two more weeks of class, then exams, and there's no reading period this time around. Tonight I have to do a set of interrogatories for 10am tomorrow. This weekend and next weekend are my last chances to get a ton of studying done before exams.

I have close to 100 cases I need to know for contracts, and probably more for Torts. I have about 80 Restatement and UCC sections I need to know for contracts, and probably the same number of rules and statutes for civil procedure. Criminal is all black letter, but I need to know the Model Penal Code, and there are only probably about 20 cases or so I need to know for civil procedure.

I have to outline everything, list all the cases and rules, and start covering them daily to get them into my head. I have to do this quickly so I have a couple of weeks to digest and think about things. I probably won't be able to do what I envision, but I'll try... Most of the exams are open book and we can bring our own notes, but that doesn't help much when you're pressed for time. I will probably do 3 out of 4 exams on my laptop this time, so I hope it goes ok. Never tried it on computer before. Hopefully it'll be easier, since I type like a fiend.

Record 163 mil. yen awarded to Hitachi inventor in patent suit

It's interesting what's happening in some of these Japanese cases. Apparently under Japanese patent law, employees are entitled to reasonable compensation (a percentage of profits) for their inventions, when they are in an arrangement requiring them to turn over all patents to their employer...

One has received a judgment for ￥163 million, and another (mentioned at the bottom of the article) has just received one for ￥20 billion.

Is there such an imbalance of bargaining power between companies and employees that this is justified? Can't employees bargain for this as part of their compensation from the outset? In the U.S., courts will generally not intervene to decide for the parties how much their services are worth.

This may seem just when you think about it, but consider all the engineers that Hitachi employs... It may be that they count on having a few gems in order to pay all the others. There are a lot of considerations... Quite interesting though.

Microsoft is threatening to sue Mike Rowe over his domain name -- mikerowesoft.com. Story on ZDNet.

In my opinion, this is a waste of money for Microsoft. Especially since he offered to turn over the domain for only $10,000. Microsoft had offered him $10. To Microsoft, either number is smaller than the cost of a lawsuit, or even the time it will take their lawyers to prepare for a lawsuit...

Companies have to choose their battles wisely. This one is just a waste of money for MS.

So, I finally had some extra time this weekend, since I had both Friday and Monday off. It allowed me to review the first couple weeks of class, and chill out a bit too...

Criminal law is becoming very interesting. I've always been interested in constitutional issues, and we're beginning to touch on them in the concepts of "void for vagueness", ex post facto law, and fair notice. These are the concepts that law must be specific enough to give people fair notice that their conduct may constitute a crime, and thus that a legislature (and a court through its legal interpretation) may not broaden a law retroactively, effectively criminalizing something that was not a crime at the cime it was committed.

We've also been reading quite a bit about the theory behind punishment, viewing it through utilitarianism and retributivism, a couple of moral theories that try to justify and un-justify punishment in different circumstances.

Civil procedure is interesting so far mostly in its potential for practical application and practical legal strategy, but I'm not sure there are a whole lot of interesting theoretical or ethical issues there yet...

I have been spending quite a bit of time setting up my 'replacement' computer again, since my previous laptop was stolen. It's a bummer, but I feel whole again now that it's been replaced. We still have to deal with the insurance company though...

I have secured a great job for the summer as a summer associate at a large firm in D.C., which I'm ecstatic about. I will have to try to learn something about patent law before starting there, or I'll be very lost... ;) I actually can't wait to start applying some of the things I've learned though. It will be extremely satisfying to actually have some responsibility to produce thoughtful analysis of legal issues... I'm feeling more and more that this will be a great type of work for me, and that I'll really enjoy it.

A friend recently pointed out a great site to me -- www.6ga.net... It allows you to record Japanese television shows and download them over the web to view on your machine. I may get this service at some point, if I have the cash... ;)

First semester, we have an unusual schedule at George Mason, because everyone must take a class on economics. The other classes are typical: Contracts, Torts, Property, and Legal Research and Writing.

This semester, I still have to take more Torts and Contracts, but also am taking Civil Procedure and Criminal Law, along with another writing course.

The first week (last week), we did something interesting in the writing class: a mock client interview, and a letter to the client. It caused me to think much more about how it will feel to actually practice law. It also made me realize how much power a lawyer has to influence people. It's a great power if used wisely and responsibly, and can do a great deal of good. It's so appealing to me because I've been denied the power to make decisions at many of the software companies I've been a part of.

Managers and engineers at software companies often are at odds. As an engineer, I always wanted to create something well-designed, useful, and relatively bug-free. Managers wanted to meet deadlines and make money. For this reason, managers can't usually trust engineers' positions on technical issues, because they suspect that there's always a cheaper, faster way. News flash: often, there's a direct trade-off between quality and time. I was often forced to deliver low quality in short time, something I detested.

In Law, however, it's somewhat different. For one thing, you're not always designing something from scratch, but rather analyzing precedent and predicting within certain limitations. I think it's extremely challenging and interesting, but not as difficult to predict as a software idea that's never been implemented before. Additionally, lawyers are held to ethical and qualitative standards, so they are not allowed to cut corners beyond a certain point, or face the risk of malpractice suits.

At any rate, these are some of the things I've been thinking about. In Criminal Law, we're talking about the morality and philosophy behind the idea of punishment. It's difficult to pin down, but very interesting to think about. This week, we're just starting to get into issues of what responsibilities lie in the judiciary versus the legislature, with regard to creating and interpreting criminal law and laws in general...

Civil procedure is about how civil trials are performed, specifically, the Federal Rules of Civil Procedure. Complaint, Motions, Answer, Reply, etc. It's less interesting than the other classes yet, but it's nice to finally pin down the specifics as to how a lawsuit proceeds.

We've been talking a lot about medical malpractice in Torts, and read the book "Damages" by Barry Werth. Very interesting account of a big medical malpractice suit. It's 400 pages, and I read it in about 4 days, along with other class reading.

Contracts is now about unconscionability... Not much to say about that right now.

I'm also looking for jobs for the summer. They say it's difficult for a 1L (1st year law student) to find a good summer job, but not impossible. I am still optimistic right now.

Well, I survived. One semester of law school is done. I finished my last exam on the 19th. It was an incredibly tough journey, but I've learned a ton and I'm hoping I'll be much better prepared when I begin again on January 5.

I had 4 exams -- Torts, Contracts, Property, and "Economics for Lawyers"... The torts and contracts classes are a full year long, so I still have them next semester, but Property was crammed all into one semester, so it was twice the amount of material as the others. We made it through about 500 pages of the case book for both torts and contracts, and over 1000 pages for property.

I have not been blogging much because I just couldn't figure out how to fit it in. I was far too worried about exams first semester, and ended up doing a lot of unnecessary work because I didn't know what the exams would be like and was so unfamiliar with the material and law in general... This time, I think I'll be able to focus on the most important things more easily, and avoid wasted effort. I also have to make an attempt to be more balanced about my life. I need to try to go out and do things with Yuki... I went out probably less than 5 or 6 times in the last 4 months. Crazy.

As for my grades, torts was the toughest since we have a philosopher for a professor, who cares much less about the law than about what is moral and ideologically consistent... Very tough to write essays about. The exam was only two essay questions for 3 hours. Some of the others had short answer questions, and a bit of multiple choice... (Econ was all multiple choice.)

The main thing I learned from these exams is that there is only so much you can write in 3 hours, and if you know the main concepts and have some notes (which you are hopefully allowed to bring) on the important details, you should be able to get down enough to show that you learned a lot in the class... It's utterly different from computer science exams though, so I had no idea how I would do or what to expect until I did them.

All of my study methods have changed dramatically since the beginning as well. I discovered that hilighting just distracted and confused me, whereas underlining and drawing rectangles around words with pencil helped me a great deal. I also continued to write notes in the margin of my books, but these evolved to become more focused and succinct as I went along. Briefing cases is a difficult issue. Briefing basically consists in taking a judge's confusing mess of a decision and organizing and sorting it out, finding the salient points. This is necessary for class preparation, and sometimes for later preparation before exams, but it's very easy to take too many notes and not think about things enough.

I've had many revelations throughout the semester, one of which is that you don't always need a ton of information to think about something and come to an intelligent and rational solution, even in subjects as squishy as the law. In fact, often too much information prevents you from thinking properly about a problem. I believe that the excess of un-edited information on the net and across our media in general today has caused people to focus too much on the data and far too little on the analysis, if at all.

I'm beginning to think that everyone may need a break from the net and from such powerful tools as computers periodically, in order to regain the capacity to think deeply and meaningfully about a smaller number of things.

Adapted from Epstein's Torts casebook...

A man (A) is conducting a train. He realizes suddenly that he's on a collision course with 5 workers on the track (W1), who are listening to loud music and oblivious to any potential warnings. A realizes at the last moment that he can switch the train to another track, but one person (W2) is working on the second track, also oblivious to warnings.

If A does nothing, W1 will all be killed. If A switches to track 2, W2 will be killed. What should he do? Must he do something? Must he do nothing? Or should he have a choice?

I managed to get to the AIPLA annual meeting downtown here in D.C. on Saturday. It was pretty fun and interesting, although of course I don't understand most of the seminars yet.

The Saturday luncheon was with Congressman Lamar Smith, Chairman of the IP subcomittee. He talked about the importance of protecting intellectual property as more and more of our economy depends on it, and the importance as well of stopping diversion of funds from the Patent and Trademark Office. He urged everyone to call their representatives, etc., to urge them to stop the fee diversion and help the PTO do their job better -- there was big applause for that. :) A new president was sworn in as well, whom I met later at the AIPLA PAC reception, and commented that the FTC speaker the previous day had not received any applause... L. Smith got at least 2, plus a standing ovation at the end... ;)

I also attended a meeting of the Young Lawyers' Committee, which was helpful in giving me an idea of the different career paths and options available...

At the dinner, the first AIPLA Presidential Award was given for Judge Howard Thomas Markey, of the U.S. Court of Customs and Patent Appeals. He has had an amazing life, and it was a moving presentation, although he was unable to attend due to failing health. His son accepted the award in his place. I was particularly surprised to learn about a mission he was on during WWII in which his plane was shot (he was a pilot), and he was hit. He wrapped his belt around his leg to keep it on the brakes as he landed, because he knew he was losing consciousness due to loss of blood. The plane landed and rolled to a stop with 2000 rounds in it, and everyone else in the plane had been killed.

On another interesting note, my father clerked for Judge Markey for a year -- I'll have to talk to him about it more sometime. :)

I also was able to meet up with a number of lawyer-contacts of Japanese, Chinese, and other national origins, and had a good time talking with them all.

Unfortunately, now I'm manically attempting to finish the draft of my open memo due Friday night. It's on the nuisance law of Wisconsin. This is the first time I've had to research something almost totally open-ended, and it's crazy. I'm just _barely_ beginning to get the hang of it. It's going to be very tight.

I'm also going to a wedding this weekend, and have been invited to at least 2 events next weekend, and have to study for exams, and still learn the things we're doing in class now. Classes end at the end of November. This is crazy.

I finally caught up.

I had Friday and Monday off, so I studied just about non-stop for 4 days, and managed to catch up. I think I read over 200 pages at least. Last night, I decided I needed to push through, so I stayed up until 4:30am or so. This morning I woke up at 9:30 and didn't get going right away, but I did do our practice exam for Contracts. I was pretty beat after pushing so hard the last few days.

But I feel good now because I've been able to review and go through flashcards, etc. I really need to work on creating outlines and reviewing all the black letter law, but most of all, I need to work on practice exam questions. Now that I've finished all my reading for this week, I can spend the week reviewing (except for our big memo due Friday), and maybe also manage to find time to create some decent comprehensive outlines.

I'm probably going to attend at least part of the AIPLA conference later this month. That should be pretty interesting. I'm also starting to look for opportunities to work in patent law firms next summer... Hopefully I can find something that will give me good experience; then I can find a good position the following summer.

For those of you who aren't aware, your second summer job in law school basically determines where you're going to work when you graduate. It's pretty crazy.

I think I need to get less sleep, but a sustainable amount. Maybe about 5 hours a night is a good goal. I think I'll do that and see how it goes for a while...

So...

Thank God (literally), my Torts Professor is Jewish. He decided to take Yom Kippur off tomorrow, giving me one more uninterrupted day to study this weekend. I will finally have time tomorrow to study for my Econ class. I haven't read almost any of the text for it yet, and we've done 6 chapters. I have to get through them all tomorrow. But, you can do a lot in 16 hours, so I'm pretty optimistic.

I've read almost 100 pages of Property already this weekend, and caught up on most of the concepts I was starting to lose track of. We've been doing joint tenancies and the landlord-tenant stuff. There's a lot to learn, and especially with the landlord-tenant issues, there are quite a few unsettled areas of law.

I received my first graded paper back from our writing class, with an abysmal grade. Fortunately, everyone else's grade was horrible too. I also missed some facts of the case that were posted late in the week, which really hurt me. Next time, everything will be set for me to rock the house.

I felt very under the weather last week, probably due to too much coffee, not enough water, and very little sleep. I've been sleeping 8 hours a night since Friday, and feel pretty great today. I have to remember to keep chugging gatorade when I get a chance, to offset the coffee. ;)

On another note, my friend Chris has come to DC and is taking over my work at the Department of the Interior, for the most part, which is great. I'm still working there part-time, but I can rest a bit easier knowing they have someone they can rely on while I'm learning about exceptions to obscure rules about leases.

I studied at home in my office all day today, and it was nice since I could see my wife (Yuki) every once in a while. Unfortunately, I managed to delete the first episodes of Alias and The Practice from the videotape somehow, so I'm scouring torrent sites for them now. I found Alias, but if anyone knows where to find the season premiere of The Practice, let me know. There should be an explicit exception in the copyright law for irate spouses. I'll work on that... ;)

Welp, back to studying. ;)

Most Americans, it seems, probably do not understand how the common law works.

You grow up in this country and all you usually remember about politics is that there are 3 branches of government. You get the idea that Congress passes laws, and the Judiciary simply enforces those laws... Then, when you go to law school, you realize that this is only half the picture, if that.

The law is comprised of both statutes (laws passed by the legislature) and common law. To explain what the common law is, we have to go back to William the Conqueror and the invasion of England by the Normans...

At that time, England did not have a unified system of courts. They did have courts, but they were run very differently in different locales, and were usually somewhat susceptible to corruption. They were not particularly objective or "rule-based," so they were probably less than satisfactory in the minds of the citizenry.

Well, into this judicial hodgepodge comes William the Conqueror. He brutally conquered the country and ruthlessly consolidated his rule, yet still had trouble in certain areas. He realized that he needed to create incentives for people to go along with the new government, and one way he came upon to do this was to establish a new set of courts, the Royal Courts. (By the way, this is why much legal jargon comes from Old French.)

These courts had very limited jurisdiction, but to simplify a bit, they began to hear a limited number of cases of direct and indirect trespass, which could have been trespass upon land or upon another person (as in battery). This expanded slowly, and eventually there was a system of courts which adjudicated cases based not only upon statutes (although they were required to follow them), but also upon precedent and general principles of justice.

This continues to this day. Courts create the law when they decide cases, because lower courts are bound to follow appellate or supreme court rulings. This legal precedent can be overridden by statutes passed by the legislature, but courts are still free to interpret these statutes as narrowly or broadly as they deem fitting (although they usually follow certain standards of "statutory construction," meaning statutory interpretation).

Courts also may take into account abstract principles, ethics, morals, the concept of justice, and even precedent outside our judicial system. In fact, since the common law system began in England, countries colonized by England considered the English cases as valid precedent, and still do. I have read cases from the 1800's wherein the judge cites Roman law as the rationale for his holdings. This is rare, of course, but not unheard of.

There are large areas of law still only covered by common law, not by statutes. Sometimes statutes overriding common law are later repealed because they cause problems the common law avoided.

But the most important thing to realize about all this is that the law as stated by the legislature is not really something you can rely on without an understanding of how courts will view it. The real law is the collection of decisions by the courts interpreting a statute, or stating the common law rules, because these are what dictate future decisions.

So how do we know what the law really is then, if we have to look to multiple cases to formulate a complete picture? Some lawyers in the ALI (American Legal Institute) decided to ameliorate this problem by restating the law as created by precedent in "The Restatements." How reliable the restatements are as a matter of law is a much more detailed discussion, but suffice it to say that they are a pretty good guide as to the general rules of law. Not that they're easy to read... ;) We've just spent about a month talking about §71, §90, and §86 of The Restatement (Second) of Contracts, about 1 page of text in total. ;)

I scanned my reading for Contracts and Property this week, and took notes with word and the Office XP document management app side by side. It helped immensely.

You get used to writing code as a process wherein your mind is directly connected to the computer. Other things can get this way as well, such as surfing the web, doing things in a shell, etc. But when you have to look back and forth between a book and a screen, it totally screws the whole thing up. You can't maintain that direct link between you and the computer, and you become conscious of your actions again, rather than just being conscious of your thoughts. Plus, my back isn't being wrecked by a ton of heavy dead trees.

I've also found a coffee shop near school with $1 coffee and $0.50 refills, free wireless, and half-price sandwiches on Mondays. (Common Grounds in Virginia Square)... I'm there right now, and I'll be there more than a lot over the next 3 years. ;)

I have my first non-pass/fail writing assignment this week, which involves writing about false imprisonment. Our legal writing class is about how to analyze a factual scenario to determine, with regard to all of the required elements of a legal cause of action, what the probable outcome will be. We have to do this for 3 out of 4 elements of the false imprisonment claim this week, using about 5 or 6 other cases as background, and following a common structure.

I have 60 pages of reading for Property, about 40 for Contracts, and 60 for Torts this week. That includes mostly cases that I have to read, understand, and analyze for various points, then summarize for myself in preparation to be grilled in class. I haven't been directly called upon yet in class, but I'm sure I will at some point. I do ask questions frequently in class though.

I met with a couple of people for the first real study-group session we've had on Sunday night. We played a card game with a set of flashcards about Torts. That actually worked out pretty well, and was the first time I had a chance to step back and start to see the forest rather than just the trees... This morning I went and bought myself a set of the cards for Contracts, Future Interests (Property), Real Property, and signed up to get the others that weren't in, namely Torts and Wills and Trusts...

I'm going to try to get my 60 pages of Property reading done tonight so I'll have time to review, begin my outlines, and work more on the writing assignment this week.

I also have a class in Economics, which I really need to study soon. I've been going to class, but haven't read the first 3 chapters we've covered yet. It's very straightforward, but I need to keep up or I will be inundated later, regardless of how easy it is to understand.

I am beginning to get a bit less stressed about preparing for class, and a bit more focused on the big picture. I am also getting more determined to be efficient and continue refining my study methods. I have to take advantage of my time. Can't waste any of it. I've taken to doing busy work when my brain is fried in order to give it a break and still get other things done. I can organize my materials and things like that during these times. I also have found that I get a lot more done by going to sleep when I'm dead and waking up earlier, than by just continuing to stay up. Usually... ;)

I've been drinking a lot of coffee and yellow soda. Have to try to get more water in me to prevent dehydration. I did manage to go to church Sunday, and a bunch of other things. I'm still working; worked 6hrs last week, and about 4 on Sunday. May have to cut that back more, but we'll have to see.

It seems that a lot of people are worried about the job market. I have to be in the top of my class to feel confident about the job situation, but they say it's far far better for IP (Intellectual Property) people than others. I've met maybe 4 or 5 other people with a computer science or electrical engineering background. I'll have to pass the patent bar next year. Crazy.

AIPLA is having a meeting next month I'm going to try to attend in order to start meeting people, etc.

I watch StrongBad emails for 1 minute breaks now and then. ;)

This whole thing about the ten commandments at the Alabama Supreme Court really bothers me.

It bothers me because everyone is talking about "separation of church and state", which were the words of Thomas Jefferson, and are nowhere to be found in our law or Constitution.

We do have, in the First Amendment, a statement preventing Congress from enacting laws respecting religion. No one seems to realize that this has nothing to do with courts whatsoever, except as a possible statement of public policy for them to consider. Let me repeat: the First Amendment says nothing about Courts; therefore, a court may put up any monument it wants to, and the First Amendment does not apply. It only applies to Congress and the statutes they pass.

Judge Moore is correct in his interpretation of law. This means that the federal court order demanding removal of the monument has no basis in law, and therefore is unlawful. Is this so hard to understand?

So now, we get to the real question that everyone is thinking about: is it right or wrong? Maybe it's wrong. If so, Congress needs to get up and pass a law or a constitutional amendment stating such. Federal Courts' jurisdiction over States is limited to those powers set out in the Constitution, and there is nothing here that supports their intervention.

Seen in the light of our actual law, Judge Moore's following statement is as clear as common sense:

The First Amendment says that 'Congress shall make no law respecting the establishment of religion, or prohibiting the free exercise thereof.' It does not take a constitutional scholar to recognize that I am not Congress, and no law has been passed." —Alabama Chief Justice Roy Moore

Got to the law library at about 9am today, and did all the reading for my torts class, briefing the case and noting all relevant questions. I also had to brainstorm answers for a question previously asked by the professor in the syllabus. My class was at 3:30pm and I still felt unprepared. Class was a whirlwind of unfamiliar terms and a struggle with my own brain to keep track of the facts and issues of the case. He moved so quickly, I could barely formulate my questions before we were on to another issue altogether. I was frustrated, but I'm told it gets easier. Things are so nebulous with Torts and Common Law, I just don't know how to handle it yet. Fingers crossed.

I have 3 classes tomorrow, Contracts, Property, and Economic Foundations of Legal Studies. I have about 75 pages left to read just for Contracts and Property, and it's midnight. I have to read it all and then brief and summarize it all to prepare for class. I don't think I'll be sleeping much tonight, if at all.

I have a pot of coffee and a big pack of Chips Ahoy. Wish me luck.

The Microsoft Case I mentioned recently, according to rumor, was taken on contingency. This means that the firm representing the plaintiff, who won a judgment of $520 million, will receive about a third of that money.

One might estimate that each lawyer of that firm could make over $10 million from this case alone, if it were divided evenly. Pretty astounding. But the plaintiff gained immeasurably as well. The plaintiff was able to sue the Microsoft behemoth and win, without putting up much of their own money, and therefore with very little risk. The law firm took a gamble that paid off handsomely.

Moral of the story: remember when you have legal problems that you may be able to get a firm to take your case on contingency.

I read a story in yesterday's Nikkei Shimbun (on the front page, no less), about the fact that Japan has surpassed Germany in number of international patent applications (I'm not sure about patents issued, but it's a fair guess that they've surpassed Germany there as well). Japan had something like 15,000, and the number for the first half of this year was 30% over the same period last year. The U.S. is way out ahead with something in the neighborhood of 40,000.

The article was also interesting in that it mentioned a number of times that Japan is now focusing on moving to strengthening its intellectual property from its traditional strength in manufacturing. The vast majority of patents are still for automobile and electronics products, but others are continuing to rise slowly.

I received an email from my mentor at GMU. She's a 3rd year student who studied chemistry and forensics, worked for a few years, then went to law school to study intellectual property.

It's nice that the school promotes this mentoring system. I plan to take advantage of it and every other chance I have for help. This may seem obvious to some, but I have a habit of trying to figure everything out myself, even when asking someone for help is the right thing to do. In law school, I'm sure I won't have time to be stubborn about this. I will have to ask others to lend me the benefit of their experience and knowledge.

They're having a happy hour tomorrow which I may try to go to, but I'll meet her on Saturday at orientation anyway... (Did I mention that the orientation is an entire day, and we already had to read a case in preparation?) Crazy.

Fox Sues Humor Writer for Using 'Signature' Slogan

This is really stupid. I guess no one but Fox can now claim to be "fair and balanced"? This use of the phrase seems on the surface to have little to do with Fox, and if it does it's just a satire anyway...

InfoWorld: Microsoft ordered to pay $521M in patent dispute

An interesting case. Apparently, Eolas went to Microsoft a while back and tried to get them to license their patents. Microsoft refused, and developed the technology anyway, which has now been deemed infringing.

$520m is not much for Microsoft, but I'm sure that Eolas is happy. ;)

Legal Affairs: July | August 2003

Legal Affairs, a magazine put out by Yale Law School, has a number of interesting articles about Law and Technology this issue.

I'm going over to George Mason tonight to pick up my books for class. Orientation is August 16, and classes start on the 18th. And we have to move into a new apartment on the 17th... Crazy. I was completely floored when I read that we were supposed to actually read a case in preparation for one of the orientation sessions! So I have to go pick up the books...

I've gotten through about one out of four of the summer reading books. Maybe I can get through most of the second one before school starts, but it's pretty tight. I'm way too busy now.

More later on my classes and everything. I've registered now, and have one class per day on Monday, Wednesday, and Friday, and three per day on Tuesday and Thursday. That will leave me time on MWF mornings to go to work for a while. I'm starting to get that electrical tingling feeling one gets before a big test... I just keep shaking my head at the insanity of it all... But yes, I am excited. ;)

So, I have a good job now, which will allow me flexible hours if I decide to work and go to law school simultaneously. I know where I'm going, too: George Mason University Law School. It's nearby, in northern Virginia, and it's a good school for intellectual property, well known among law firms and lawyers. A lot of the best lawyers from D.C. firms teach there as well.

It's been a long long road. I first decided to go to law school about a year ago, when I posted this. I had to go through the process of signing up for the LSDAS, talking to all my connections, trying to get recommendations, getting stuff signed by my alma mater, getting transcripts, studying hard for and taking the LSAT, writing personal statements and essays and filling out applications... I can't believe it took over a year...

Now, I have to decide. I can go to school full time, which will be financially difficult, or I can go to school at night, work during the day, and have more than enough money but no free time. I am leaning toward the latter. If I go full time, I'll finish in 3 years, but part time will take 3.5-4 years. I think I'll be much less stressed if I don't have to worry about money in addition to everything else though.

I'm starting to feel the impending doom... ;) Orientation is August 16. That is also the day I have to fork over a major wad of cash...

Well, I have to make this decision as soon as possible so they can start fitting people into classes... I've got to say, I'm the first and only coder I know who will be transmogrified into a lawyer. ;) It's strangely exciting.

Interesting article on CNN about what constitutes trademark infringement, etc.

Ahhh... ;) That's the sound of some of the tension I've held in so long leaving my body, just like the air let out of a balloon... :)

Over the past couple of months I've been admitted to one of my back-up schools, and found out that I have a very good chance to get into the #2 school I applied to. Now, I just heard that I've been admitted to another school, which would require me to relocate, but which is one of the best schools for intellectual property law. :)

I was rejected by my #1 choice, but I sort of expected that. It's an extremely difficult school to get into, and my undergrad grades were not all they could have been... :(

I'm just so glad that I know I'll have a couple of choices now, and very possibly have the chance to go to one of the best schools in the country...

Man, that LSAT was really hard. Whenever there is almost a zero chance of getting a perfect score on a test, I consider it extremely hard. I'm glad I did reasonably well, and I'm getting into some good schools, or I'd have to consider taking it again... I shudder at the mere thought of it! ':-|

I've been thinking about the concepts of intellectual property protection more and more lately, especially with regard to software. As we progress in the current directions of technological development, many more fields will soon find that their various special purpose hardware will be implemented in software, run on a small number of general purpose machines.

Because of this, we know that software must be a protected entity in our society. But how should we protect software, and for how long? This is the truly difficult question.

Counter to all the recent grumblings in the software community over copyrights being 'too long', I've begun to wonder whether very long is not also very good. In fact, don't long copyrights spur innovation precicely because it is so hard to produce something similar? Aren't we forcing people to come up with new things constantly because they're not allowed to take advantage of the old things?

There are so many arguments both ways, it's hard to keep them all in mind at once and weigh them together. But I think that this point may have been overlooked by many. If copyright terms are too short, we may be running the risk of disincentivizing innovation, rather than nurturing it.

Copyright legislation has gone too far in the U.S., and finally some people are proposing just what we need. They are making the effort to create an organization dedicated to protecting the fair-use rights of the average citizen. A proposal for the organization has been posted here on kuro5hin.

Everyone knows by now that the way you get things done (politically) in the U.S. is with an organization that can magnify the voices of a certain group, and lobby for them. Anyone who has a cause should learn from this. :) Hopefully this new group can gain enough of a following to make a difference. The EFF has certainly been a great force for good on the net.

A bunch of interesting stories in the news related to copyright and patent law recently...

Sklyarov's company seems to be interested in selling a new application to allow circumvention of Microsoft's ebook format. He's the one who was arrested by the FBI when he came to the U.S. for a conference, because his company sold software to circumvent the protection on PDF files...

A great long article on the implication of expanding copyright protections for the future of our society. I hope we can find some way of overcoming these problems soon — the disconnect between mega-corporations and citizens is getting bigger by the day.

BT Group thought it had a patent on hyperlinking! Luckily, they've lost their suit against Prodigy, although Prodigy had to pay millions to defend themselves against this trash... Being discussed on slashdot, along with another catch-all story with a bunch of copyright infringement news...

I finally got back my LSAT score a few weeks ago. I did pretty well, but not quite as well as I'd hoped - I never do - but you always have to aim for the top... ;) I got a score good enough to get into the top 10 schools, which is good, but my undergraduate grades were not as indicative of my abilities (read: not as good), so I probably don't have such a great chance at the very best schools... I guess I'm happy though. :) I did well enough... :)

Finally, I was able to increase my LSAT score significantly on a practice test I took yesterday. I'm actually nearing an acceptable range now, I believe... I still have a long way to go if I want to reach my goal of being close to the 99th percentile, but at least I'm sure now that I won't feel like a moron when I get my score.

At work last week, I wrote a script to prevent me from launching IE after a certain time of day; the change was immediately apparent. I guess I'm an information junkie...

Last night, I did the diagnostic test included in my first LSAT prep book. It sucked, and it wasn't even nearly as long as the real thing will be. I am really going to have to work on this. I totally froze on the logic games section, when I found that the second question on a game contradicted what I had concluded from the description. After going over the description three times, without change, I was too frustrated to leave the question alone. I ended up only answering 20% of the questions on that section for lack of time. Horrible. Fortunately, I still ended up with an average score, implying that I would have had quite a good score had I not utterly bombed the games section... Argh. If I can speed up, by becoming more comfortable with the questions, I should still be able to do very well. I just need to crank out tons of practice tests.

A day like any other... not quite.

Today is different.

Today is the day that I'm finally making a decision about my life. It's grueling making these decisions, because you want to think that every major decision will lead you to the perfect life. I am going to law school, and I am going to become a patent attorney. I don't know that there isn't something else out there that could make me happier, but I do know that this could work, and it could provide me with something satisfying and challenging to do each day. It could be a job where I command a degree of respect, even while laboring as an associate. It could be a job that I really like to do, for a long period of time. I'm hoping that it is. :)