Volume 2015, No. 4

 

Table of Contents

In Memoriam
Tributes to Robert W. Kastenmeier

Robert W. Kastenmeier died on March 20, 2015, at the age of ninety-one. After serving in the Army in World War II, he graduated from the University of Wisconsin Law School in 1952. He practiced law in Watertown, Wisconsin and served as a justice of the peace. Starting in 1959, he represented the state and people of Wisconsin in the United States House of Representatives for thirty-two years. Since 1992, the University of Wisconsin Law School has hosted the Robert W. Kastenmeier Lecture in his honor each fall.

The following tributes evince the extraordinary scope of Representative Kastenmeier’s legacy. The authors describe his enduring influence on a wide range of legal fields as diverse as intellectual property, the administration of the federal courts, and civil rights. They also detail the profound impact that Representative Kastenmeier had on their lives and careers.


Commentary
Does Experiential Learning Improve JD Employment Outcomes?

Jason Webb Yackee

This short article provides an empirical examination of the link between law school experiential learning opportunities and JD employment outcomes. The paper is motivated by the so-called “law school crisis” that has accompanied the bursting of the housing bubble and the ensuing Great Recession. As most readers know, the market for new lawyers collapsed during the recession. Applications to law schools initially rose, but have since fallen dramatically. Entry-level legal hiring remains sluggish, and law school applications remain at or near historic lows.

Assessing Experiential Legal Education: A Response to Professor Yackee

Keith A. Findley

My colleague Jason Yackee offers some interesting data on comparative rates of law-related job placement for graduates of the top 100 U.S. law schools.1 In the end, his analysis in part reaches the entirely unsurprising conclusion that higher-ranked law schools are more successful at placing their graduates in full-time law-related jobs than are lower-ranked schools (although it turns out that holds true only for those in the top 50).

More interestingly, and less obviously, his data also suggest that schools that offer more experiential learning opportunities (as measured by the school’s number of clinical offerings, both in the aggregate and per student), do not have any greater success in placing their students in full-time law-related jobs than do schools with fewer clinical offerings. From this, he poses the question whether clinical legal education is worth the expense and opportunity costs that it represents to law schools.

Measuring Clinical Legal Education’s Employment Outcomes

Robert R. Kuehn

Clinical training is one of the most significant developments in legal education over the last century. Legal education experts and bar committees have praised clinical education’s ability to teach law students the competencies necessary for the practice of law and a sense of their professional identity and obligations. Some even identify the added benefit of aiding J.D. students in securing employment and possible negative impact of inadequate skills training on the job market for graduates.


Articles

Rethinking Obviousness

Christopher C. Kennedy

A fundamental principle of patent law is that a patent may not be granted on an invention that would have been obvious to a person of ordinary skill in the art at the time of the invention. Indeed, the nonobviousness requirement is generally considered to be the core requirement of patentability. It is also among the most commonly litigated issues in patent infringement cases, resulting in more invalidity determinations that any other defense. Despite the centrality of obviousness to patent jurisprudence, one element of the obviousness analysis is rarely, if ever, challenged: that obviousness is a binary; i.e., there is no middle ground between an obvious invention—entitled to zero patent protection— and a nonobvious invention—entitled to full patent protection.

This Article challenges that binary framework, arguing that the case law, the literature, and the plain meaning of the word “obvious” indicate that the obviousness analysis should not, in every instance, be limited to only two outcomes. It proposes that a third option should be available to decisionmakers: a claimed invention would have been partially obvious at the time of the invention and is therefore entitled to a half-term of patent protection. The Article then examines the mechanics, challenges, and benefits of a ternary obviousness framework, concluding that it would more accurately reflect the reality of obviousness determinations, and that it would ameliorate several criticisms of the patent laws.

The Civil Ex Post Facto Clause

Evan C. Zoldan

Since its first interpretation of the Ex Post Facto Clause in Calder v. Bull, the Supreme Court consistently has held that the clause applies only to retroactive criminal, but not civil, laws. The consequences of this distinction are far ranging, permitting, for example, states to keep offenders behind bars after they have served their sentences. The Court’s distinction between civil and criminal retroactivity is based wholly on Calder’s historical conclusion that the original meaning of the Ex Post Facto Clause included criminal laws only. This article demonstrates that Calder’s historical analysis is wrong.

After examining historical evidence that never before has been considered by scholars or judges interpreting the Ex Post Facto Clause, I conclude that the original meaning of the clause encompassed civil as well as criminal laws. This new evidence calls for a reconsideration of Calder and raises the intriguing possibility of greater judicial scrutiny of civil retroactivity. I also examine the most common doctrinal, structural, and normative arguments for retaining Calder and offer new ways of approaching these arguments.


Book Review

A Wake-up Call for Judges

Alfred T. Goodwin

Proliferating international demand for American petro-chemical exports and soaring prices for compressed natural gas will soon produce a critical mass of litigation over the rights of the people of the United States versus the corporate capital now being invested in fracturing shale. If the horizontal drilling to execute fracking is indeed poisoning the water needed to sustain human life on the land above the fracking, plaintiffs who have standing will find lawyers and sue in their state and federal courts.

Professor Mary Christina Wood of the University of Oregon School of Law has recently authored an important and well-researched book explaining how common-law lawyers can bring about needed change by activating the third branch of a government whose other two branches have shown no interest in taking on new work: Nature’s Trust: Environmental Law for a New Ecological Age.