Stanford Law School faculty spend a large portion of their time pursuing scholarly research and teaching students. But most of the faculty also devote a substantial amount of energy to projects outside of academia. This past year was no exception.
THOMAS HELLER: CURBING GLOBAL WARMING
This December, some 10,000 delegates from 160 countries will descend on Montreal for the 11th United Nations Conference on Climate Change. Their aim: to devise a new international framework for controlling greenhouse gas emissions after 2012, when the Kyoto accord will have run its course. Among the people present will be Thomas C. Heller, Lewis Talbot and Nadine Hearn Shelton Professor of International Legal Studies.
Heller, an authority on international business transactions in developing economies, has been working on global warming since 1992, when he served as an advisor to delegates at the Earth Summit in Rio de Janeiro. Since then, as a member of the U.N.’s Intergovernmental Panel on Climate Change, he’s been writing papers and traveling the world to promote creative and practical solutions to the problem.
One of Heller’s favored approaches, encapsulated in the 1997 Kyoto Protocol, allows developed countries to meet their emission targets in several ways: They can reduce gas emissions through the promotion of more fuel-efficient cars and the like, they can purchase emissions credits from nations that don’t need them to stay below their emissions quotas, or they can earn emissions credits by investing in reforestation projects or environmentally friendly power plants in developing countries.
As Heller explains, such trading mechanisms go a long way toward making international agreements more palatable to industrialized countries, which often find it costly to reduce emissions on their home turf. They also encourage responsible development in rapidly developing nations such as China and India, which aren’t bound by the Kyoto targets. “The concept of international trading in emissions is an academic’s dream that still needs to be refined in upcoming international agreements to be credible and effective, but it is a start down the proper road,” said Heller.
“I spend a huge amount of my time on back-channel negotiations with governments, especially in China and India,” he said. “That’s time consuming, but I think it has had some impact on their negotiating positions and their willingness to consider untraditional ideas of trying to deal with these problems.”
Elliot Diringer, director of international strategies at the Pew Center on Global Climate Change, says Heller’s scholarly work and volunteer efforts to engage developing countries have done a lot to strengthen the international climate change effort. “What I prize most about Tom,” he said, “is his ability to think across disciplines and cultures. He understands not only the legal dimensions, but also the politics, the economics, and the business perspective. And he pulls them all together. I think that’s what makes him such an original thinker.”—Theresa Johnston
DEBORAH HENSLER: REFORMING ASBESTOS LITIGATION
In her work on asbestos litigation, Deborah R. Hensler, Judge John W. Ford Professor of Dispute Resolution, says she often hears the question, “Asbestos? Isn’t that in the past?”
Quite the contrary: because asbestos-related diseases have a latency period of up to 40 years, the injuries—and the lawsuits—have multiplied in recent years. And because asbestos lined the pipes and ceilings of so many buildings throughout the United States, and was used in myriad products, Hensler said, “There’s an almost unlimited number of business entities that had some responsibility for workers’ exposure.”
So Hensler’s work on a RAND Corporation study released May 10 of this year, “Asbestos Litigation,” is only too timely. Hensler joined the law school faculty in 1998 from RAND, where she was director of the Institute for Civil Justice, the pre-eminent center for non-advocacy research on civil justice policy.
The most disturbing findings of the report, Hensler says, are that people with minor or no injuries are now filing the majority of the lawsuits, and more than half the money spent is going to lawyers and legal expenses.
“There are lots of people who have X-rays that show damage but have no symptoms,” Hensler said. “My hope is that through congressional or other action, the system will be reformed so that more of the money will go to the people who’ve been most seriously injured.”
In the RAND report, Hensler and her co-authors discuss recent proposals for reforming the asbestos compensation system, including using medical criteria to screen tort claims, and removing asbestos litigation from the tort system entirely, substituting a trust fund for asbestos victims.
This spring, the U.S. Senate voted legislation that would establish a trust fund—SB 852—out of committee. But whether it will make it into law is still unclear; asbestos litigation reform has been proposed many times before, only to fail.
“Deborah is the neutral party who tries to provide objective information to the policymakers so they can sort out their issues,” said Stephen Carroll, a senior economist at RAND. “She is very concerned about fairness and equity, and a part of her concern is to alert policymakers that the court system does not handle mass litigation well.”
Hensler, who has been studying asbestos litigation since the 1980s, said that the subject never fails to interest her. “Asbestos litigation provides a prism through which to view the strengths and weaknesses of the tort system,” she said. “Whenever I think there is nothing further to learn from the asbestos saga, I am proved wrong.”—Mandy Erickson
PAMELA KARLAN: EXTENDING VOTING RIGHTS
The Mississippi and Arkansas Deltas share similar history and demographics. But there is a subtle difference. In Mississippi, on the eastern bank of the Mississippi River, the local government must receive federal approval before it makes any changes to registration requirement, voting procedures, or electoral districts. In Arkansas, on the western bank, “preclearance” doesn’t apply. As a result, said Pamela S. Karlan, “If you look at Mississippi, the black community there has been much more successful at electing representatives of its choice than comparable communities in the Arkansas Delta.”
The preliminary research, which Karlan compiled with student help, is just one piece of evidence the Kenneth and Harle Montgomery Professor of Public Interest Law hopes to use this fall as part of a concerted effort to reauthorize the Voting Rights Act. Passed in 1965 at the height of the civil rights movement, the groundbreaking federal legislation permanently outlawed such practices as poll taxes and literacy tests that were designed to prevent African-Americans from voting.
But the act also included some temporary provisions that will expire in 2007 unless Congress acts. Among them is Section 5, which requires that certain states and counties receive preclearance from the federal government before making any changes in their voting laws. As Karlan explained, “The requirement makes it much harder to get away with the kind of discrimination that these places engaged in for a century.”
A Yale graduate and Stanford faculty member since 1998, Karlan has been involved in voting rights issues since the mid-1980s, when she took a job as assistant counsel to the NAACP Legal Defense & Educational Fund. Today, the constitutional law expert works on pro bono cases for a variety of national civil rights organizations, including the Leadership Conference on Civil Rights. Julie Fernandes, senior policy analyst and special counsel to the LCCR, called Karlan “a touchstone” with an unmatched understanding of the law in this area. “She also understands our community, and can therefore serve as a useful bridge between the academic and the nonprofit world.”
Karlan anticipates little trouble getting Congress to reauthorize the temporary provisions of the Voting Rights Act. Whether the Supreme Court will uphold the law, though, is another matter. Already, three Justices—Anthony Kennedy, Antonin Scalia, and Clarence Thomas—have expressed doubts about the act’s constitutionality. “I always plan for the worst,” she explained. “Whatever statute we get, somebody is going to claim that Congress exceeded its power. Our job is to figure out how to respond to that claim.” —Theresa Johnston
MARK LEMLEY: OVERHAULING PATENT LAWS
When an 8-year-old can acquire a patent for a method of twisting a playground swing, as one recently did, it’s a clear sign the U.S. patent system is broken, says Mark A. Lemley (BA ’88), William H. Neukom Professor of Law. “The scrutiny isn’t all that rigorous,” Lemley said, noting that probably any kid who has spent time on a swing has twisted it the same way. “Many of the truly innovative companies feel like the patent system is more often getting in the way of innovation.”
Lemley has worked to improve the system, both as of counsel at Keker & Van Nest LLP in San Francisco, and in his research and writing as a Stanford professor. In Phillips v. AWH Corp.—described by Lemley’s colleague at Keker, Daralyn Durie, as “the most important patent case in years”—Lemley filed an amicus brief on behalf of Intel, Google, Microsoft, Micron, and IBM. The July 12 en banc decision, in which the Federal Circuit set the rules for determining the meaning of patent claims, followed much of Lemley’s analysis, which argued for a greater focus on what the patentee invented rather than the dictionary meaning of terms.
Lemley also testified June 14 before the Senate Judiciary Subcommittee on Intellectual Property in favor of HR 2795, which would both give companies greater opportunities to challenge a patent and restrict those patent holders who sue for infringement on a patent they’ve never used. The House bill has received bipartisan support; Patrick Leahy (D-Vermont) plans to introduce a companion Senate bill soon. “On balance, this bill is definitely an improvement for the patent system,” Lemley said.
Lemley has also produced a number of studies; one of these examined the rule that allows people to file an unlimited number of applications in trying to get a patent, making it harder for the U.S. Patent and Trademark Office to reject bad applications. And an article he wrote in the December 2003 issue of the Berkeley Technology Law Journal describes how people who were ignorant about a patent and developed the same technology on their own are often subject to the damages intended for people who intentionally infringed.
“Mark has contributed enormously to the field of patent law,” said Durie, a Keker partner. “He has a foot in three worlds-litigation, academia, and legislation. It’s an unusual and effective combination.” —Mandy Erickson
JENNY MARTINEZ: ENDING SEXUAL TRAFFICKING
Assistant professor of law Jenny S. Martinez had hoped that the case she argued for amici curiae, Hwang Geum Joo v. Japan, would provide a small consolation to a group of women who experienced a nightmare 60 years ago.
No such luck: the U.S. Court of Appeals for the District of Columbia decided June 28 that the case, in which World War II “comfort women” were asking Japan for reparations, was a matter for politicians, not the courts. The court cited the political question doctrine, saying that the postwar treaty the United States signed with Japan negated lawsuits arising from the war.
The 15 appellants, from China, Taiwan, South Korea, and the Philippines, were among thousands of women kidnapped during the war, enslaved, and forced to work as prostitutes for the Japanese military. Japan has never formally apologized for its actions.
“These women are very brave to come out and talk about an extremely painful experience,” Martinez said. “Some are in their 90s now, and they wanted some acknowledgement of what happened to them before they died.”
Martinez first argued the case in 2000, when she was an associate at Jenner & Block LLP in Washington, D.C. Though the court dismissed the case, the U.S. Supreme Court summarily reversed its decision based on another World War II case and sent it back to appeals court, at which point Martinez picked it up again.
Though the women are pursuing their goal through diplomacy and other tactics, Martinez said their fight in the U.S. court system—which allows individuals to sue foreign governments under the Alien Tort statute—is very likely over.
However, Martinez added that the ruling did contain a silver lining, as the court left open the possibility that other victims of sexual slavery could sue foreign states in U.S. courts under the Alien Tort statute. “One of the reasons I thought the case was important was that sex trafficking today is a big problem and governments are involved in it,” Martinez said.
“Jenny contributed an enormous amount to this case,” said Martina Vandenberg, a Jenner & Block associate, who was previously an expert on sex trafficking at Human Rights Watch. “Jenny’s legal work definitely blazed a trail. The legal arguments have been made to allow other victims to sue.”—Mandy Erickson
KATHLEEN SULLIVAN: CREATING A PRACTICE
Three months after stepping down as dean of Stanford Law School, Kathleen M. Sullivan received an unusual package in the mail. Inside were a new laptop, a BlackBerry, a stack of business cards imprinted with her name, a bottle of fine champagne, and a case file. The sender, Los Angeles–based Quinn Emanuel Urquhart Oliver & Hedges, LLP, had an intriguing proposal: Would Sullivan be willing to use part of her sabbatical to help the commercial litigation firm build a West Coast appellate department that would rival the established players in Washington, D.C.?
It didn’t take Sullivan, Stanley Morrison Professor of Law, long to accept. Before she became one of the nation’s premier constitutional scholars, Sullivan had developed a passion for litigation and has cultivated that interest throughout her academic career, handling two or three appellate cases a year. In May she won a major victory for California vintners in a case before the U.S. Supreme Court, arguing that wineries should be allowed to ship directly to consumers living out of state. “I’ve always viewed my litigation sideline as not only compatible with, but a huge contributor to my teaching and research,” she explained. “You cannot possibly overestimate how much students love having real world experiences imparted to them in the classroom.”
Since becoming of counsel to Quinn Emanuel in January, Sullivan has kept up with the academic lecture circuit while arguing two cases for the firm’s clients in federal district court and working on a variety of appeals, including one defending truth-in-labeling laws for California winegrowers and another defending Barbie’s copyrighted head for Mattel. She’s also focused on recruiting highly respected lawyers who can keep Quinn Emanuel’s new appellate department running after she returns from a yearlong sabbatical to teaching four days a week. “One of my goals,” she said, “is to hire as many Stanford students over the summer and Stanford alumni as I can.”
Bill Urquhart, who worked with Sullivan years ago in Alabama on a civil rights case when they were both young lawyers, says he and his partners couldn’t be more pleased by Sullivan’s contributions. As he explained by phone, clients are “almost star-struck” when they meet her, the firm’s seasoned lawyers are comfortable relying on her judgment, and young female practitioners have found her to be a particularly inspiring role model. “We’ve had four or five superstar law clerks accept jobs with us, and I’m 100 percent sure that they wouldn’t have come to us before Kathleen,” he said. “She’s like the Lance Armstrong of the law.” —Theresa Johnston
MICHAEL WALD: PROMOTING CHILD WELFARE
In the spring of 2000, Michael S. Wald received a phone call from San Francisco’s Grace Cathedral. Would the Stanford law professor—a nationally recognized authority on child welfare—be willing to come and speak to the Episcopal congregation about the likely effects of Proposition 22, a ballot initiative to deny recognition of same-sex marriages in California? With little hesitation, he accepted the invitation.
Wald, the Jackson Eli Reynolds Professor of Law and a former executive director of San Francisco’s Department of Social Services, was invited to speak because he has an unusual perspective on the subject. After years of research, he’s come to the conclusion that same-sex couples should be allowed to marry— because marriage of any kind tends to stabilize families, and that’s a good thing for kids. Most children living in same-sex-couple households are the biological offspring of one partner, with no legal relationship to the other. So if one adult becomes ill or dies, there are all kinds of potential problems relating to custody, social security benefits, and parental leave.
“In the public’s mind, same-sex marriage is often seen as a battle over gay rights,” Wald explained. “I see it as a rights issue also, but as the rights of children to stable families and to adequate legal and economic protection.”
Since the ratification of Proposition 22, questions about the legality of same-sex marriage in California have been thrown into the legislature and courts. So Wald is still busy speaking publicly, advising legislators, and serving as a consultant to organizations involved in same-sex marriage litigation. In addition, he continues his research about children living with lesbian and gay parents.
Shannon Minter, legal director for the National Center for Lesbian Rights in San Francisco, calls Wald one of the group’s “closest and most steadfast allies” in the academic community. “He has devoted many hours of his time to meeting with us and reviewing briefs,” said Minter. “He’s helped put the focus where it belongs, which is on how the law can best support the children in our families.”
Wald is optimistic that in time, same-sex marriage will be legal in the State of California. But he noted, “You don’t change the public’s mind through social science research or even court cases. Public attitudes and values change through exposure.” As more and more people go to school with lesbian and gay individuals and have lesbian and gay families living in their neighborhoods, he believes, “that will ultimately lead to changes in the law.”—Theresa Johnston
