Volume 2013, No. 3



Tributes

Mario L. Barnes

I met Professor Jim Jones, quite accidentally, within days of arriving in Madison in the fall of 2002. There to pursue my Master of Laws (LL.M.) degree, my initial thesis advisor was Professor Catherine (“K.T.”) Albiston and her office was across the hall from Professor Jones’s. One day, while I waited to meet with K.T., Professor Jones noticed me and asked me into his office.

He instantly remarked that I looked a bit “long in the tooth” to be a law student, as a way of jokingly asking my purpose for being outside his door. When I told him I was a new William H. Hastie Fellow, he immediately perked up. Next, he provided a history of the fellowship and asked a number of questions about my background, work history, teaching, and writing interests. When I mentioned I was transitioning from active service in the United States Navy, he became even more animated. He shared that he too had served in the Navy during World War II. When we learned that we had both spent time stationed on the island of Guam, I surmised that I had likely met a mentor with whom to trade “war stories” for the next two years. In fact, we spoke so long on the day we met that I never did get in to see K.T.

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Daniel O. Bernstine

One of the inevitable things that comes from writing a piece like this is a need for reflection. As I reflected on my relationship with James E. Jones, Jr., I realized that I have known Jim for over forty years beginning from virtually the first day of my career as a lawyer. I also recalled some of the many professional and life lessons I learned from him.

Kimberlé Williams Crenshaw

It is a special honor to have this opportunity to celebrate Professor Jim Jones’s pivotal role in integrating the ranks of the law professoriat. Jim Jones was of course not the only one who hoped that the number of minority law professors would swell as the number of law graduates increased, but unlike those who simply watched and waited, Jim Jones decided to actually do something about the infamous “pool problem” in legal education.

Through his innovation, mentoring, and dogged advocacy, Jim Jones put action to passion, quietly, deliberately, and diligently creating a pipeline of minority law teachers. I know that, at least for me, and most likely for every other Hastie Fellow, were it not for Jim Jones, we would not have the careers that we do.

This Tribute provides us all with the opportunity not only to express profound gratitude to Professor Jones, but to consider the implications of his visionary leadership in the context of the contemporary challenges we now face.

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Michele Goodwin

The United States Supreme Court recently heard Fisher v. University of Texas, a case brought by a young woman who claims that she was discriminated against in the Texas undergraduate admissions process. Scholars and commentators on the left and right predict that Fisher marks the inevitable death of affirmative action, despite Justice Sandra Day O’Connor’s edict in Grutter v. Bollinger that twenty-five more years of “diversity” in law schools would be needed in order to achieve worthy societal goals. Justice Elena Kagan recused herself; she served as United States Solicitor General and filed a brief when the case was before the Fifth Circuit. Affirmative action may not be dealt its death blow just yet, but the need for reflection on the policy seems clear.

Linda Greene

Professor James E. Jones, Jr., affectionately “Jim” only to his wife and closest colleagues of long standing, broke paradigms just by living long enough to graduate from high school. He was born in Little Rock, Arkansas in 1924, just five years after an Elaine, Arkansas white mob massacred African American sharecroppers who organized to obtain fair prices for their cotton crops. Three years before his birth, a white mob lynched Henry Lowry, and, when he was three, another white mob lynched John Carter in Little Rock. In an Arkansas that was deep south in every way that posed threats to the ambition of a bright young African American child, Professor Jones built his life on the foundation of confidence he gained from a formidable grandmother, an African American community that resisted violence and actively organized for racial justice, and segregated schools that nurtured rather than crushed this child’s ambitions.

Stacy Leeds

On April 15, 2011, the University of Wisconsin hosted an event that I was regrettably unable to attend, “Honoring Professor James E. Jones, Jr.: A Hastie Fellow Reunion and Workshop.” From a peer standpoint, I missed the opportunity to be with my dear friends Michael Green, Michele Goodwin, Adele Morrison, and Thomas Mitchell. The five of us were in residence at the law school at the same time in the late 1990s, making up the largest single collection of Hasties-in-progress. I also missed the perfect opportunity to thank Jim Jones in person, not just for his fortitude in envisioning and executing the Hastie Program, but for his unapologetic optimism for what lay ahead for legal education.

Thomas W. Mitchell

From the founding of the Hastie Fellowship Program in 1973 until just a few years ago when his health made it no longer possible for him to come to the law school, Professor James E. Jones, Jr. reached out to each new Hastie Fellow on his own to offer him or her mentorship and guidance. Most Hasties gladly accepted Jim’s offer and in many cases the mentoring relationship ripened into friendship over time. I was one of those Hastie Fellows whom Jim mentored and befriended.

In his own inimitable and very colorful way, Jim counseled Hasties to keep our eyes on the prize by using our time well as LL.M. students, including by working hard on our master’s theses. Even more, he emphasized that we should structure our careers as law professors—from the courses we would teach, to the articles we would write, to the range and type of service we would do—in such a way to maximize the chances that we would become valued and respected members of the faculties we would serve on in the future thereby avoiding the fate of being marginalized. Though Jim’s approach to mentoring (and to life in general) could be described as unvarnished or very “old school,” as some would say in a different cultural context, the advice he gave many of us is timeless in its value.

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William C. Whitford

Professor James E. Jones, Jr. was the first African American member of the faculty at the University of Wisconsin. Jim joined the faculty in 1968 at the age of forty-four, after a highly successful career as a lawyer in the United States Department of Labor, because he wanted to teach. Earlier he had been promoted to the highest status (or “grade”) possible for a government lawyer who was not a political appointee. He had served both as Director of the Office of Labor Management Policy and as Associate Solicitor for Labor Relations and Civil Rights, and he was the primary author of the federal government’s first effort to require affirmative action employment practices for building contractors doing business with the federal government (called the “Philadelphia Plan”). Jim possessed a great deal of information and experience that he wanted to share in the classroom.

Articles

Nancy Leong & Kira Suyeishi

Law enforcement officers frequently use written consent forms to obtain permission for searches. Consent forms are pervasive—indeed, more than ninety percent of state police departments use them in at least some circumstances. And consent forms are popular—advocates for civil liberties, such as the American Civil Liberties Union, have championed their use. Yet even though consent forms are an integral part of American law enforcement culture, virtually no scholarly literature has examined their use. This Article is the first to provide an in-depth examination of the use of consent forms. Our analysis is founded on two original empirical data sets. The first is a survey of state police department practices that includes data from forty-four states demonstrating that officers routinely use consent forms. The second is a data set consisting of every published appellate case involving a consent form decided between 2005 and 2009, which reveals that fewer than five percent of defendants prevailed—less than half the rate at which defendants prevail in Fourth Amendment cases overall.

With these novel empirical data as our foundation, we draw three conclusions. First, a signed consent form does not signify that a suspect rendered consent voluntarily. The form does little to improve a suspect’s understanding of her rights, particularly when the suspect is poorly educated, frightened, not fluent in English, or otherwise impaired in her ability to understand. Second, consent forms do not prevent coercion. If an officer can use coercion or other psychological tactics to obtain verbal consent, surely she can also do so to obtain a signature on a consent form. And finally, consent forms implicitly discourage courts from closely examining whether consent was voluntary because the forms provide a formalistic illusion of voluntariness. That is, obtaining a signed consent form effectively insulates law enforcement from later invalidation of the search on voluntariness grounds. In light of these problems, we urge that police departments reexamine their use of consent forms and that courts rethink the way in which they evaluate consent forms. The Article concludes with four proposals to remedy the problems with consent forms. First, courts should explicitly hold that a signed consent form does not automatically indicate that an alleged instance of consent was in fact voluntary. Second, courts should analyze consent forms using a more searching inquiry into voluntariness imported from contract law. Third, rather than advocating the use of consent forms, civil rights organizations should use their resources to educate people about their rights. That way, people need not rely on a consent form to educate themselves after a request to search has already occurred.

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Laura G. Pedraza-Fariña

Francis Bacon stressed centuries ago that innovation is inevitably influenced by mental and social constraints. It is only by exposing and understanding these constraints, Bacon argued, that society can fully benefit from scientific innovation. But while historians and sociologists of science and technology have long appreciated how institutional norms shape the course, pace, and content of innovation, legal scholarship on patent law has all but ignored this insight. In this Article, I seek to complement traditional law and economic analyses of patent law by developing a sociological and historical approach that focuses in concrete detail on the ways in which scientific knowledge, and thus innovation, is made, maintained, and modified.

Drawing from sociological analysis of historical case studies of innovation, I focus on factors that affect the timing of innovation. I argue that understanding why some scientific advances and innovations take a long time to develop or be recognized and endorsed by the scientific community provides an opportunity to reshape patent law as a policy lever to mitigate such delays. Conversely, understanding why other types of innovation occur rapidly and spark swift follow-on innovation suggests circumstances in which broad patent rights may impose particularly high social costs. This socio-historical approach is responsive to recent Supreme Court patent law jurisprudence, exemplified by KSR v. Teleflex, that directs courts to take a flexible approach to patentability by considering “the circumstances surrounding the origin of the invention.” By teasing out social factors that influence the pace of innovation, I offer a framework for taking such considerations into account in the design and application of patent law. I also propose specific changes to patent law doctrine that flow from this framework.

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Note

David Moon

At first glance, the Supreme Court’s holding in Free Enterprise Fund v. Public Company Accounting Oversight Board appears straightforward: executive officers cannot be insulated from presidential removal by two or more layers of for-cause employment protection. But as Justice Stephen Breyer’s dissent notes, a holding this broad would encompass thousands of government officials, including administrative law judges (ALJs) and commissioned military officers. In response to Justice Breyer’s doomsday prophecies, the majority opinion characterized the Public Company Accounting Oversight Board’s (PCAOB) removal structure as “highly unusual,” and made a point of distinguishing it from the removal structures for ALJs and commissioned military officers. Any proper investigation of the scope of Free Enterprise Fund must therefore involve a careful analysis of these administrative officers’ removal structures. If the removal structures of ALJs and commissioned military officers can be meaningfully distinguished from that of PCAOB members, then an examination of their differences will help determine Free Enterprise Fund’s reach. Surprisingly, no such analysis currently exists.

This Note fills that gap. It compares the pre-Free Enterprise Fund employment removal protections of PCAOB members with those of ALJs and commissioned military officers. It argues that there are important differences between these structures. The Note uses these differences to construct a general model for evaluating the constitutionality of administrative officers’ employment removal provisions. It concludes by using this model to draft statutory provisions that recapture the perceived benefits of the PCAOB’s initial dual for-cause removal structure without violating Free Enterprise Fund’s holding.

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