Friday, September 4, 2015
University of Virginia law professor Margo Bagley presented biblical insights on misappropriation in life science patenting. She discussed the passage from Leviticus that instructs landowners not to reap to the edges of the field, leaving some food for the poor. Any lessons for our law today? Our legal prohibition on "stealing" self-replicating inventions (e.g. landowners sued by patent-holder after neighbor's GMO plant seeds drift onto their land) can seem unjust because there is no de minimis exception. Stealing pharmaceutical products is also thorny -- Thailand exercised TRIPs rights and issued compulsory licenses on several drugs. Abbot responded that Thailand would not receive new drugs. Many countries didn't grant pharmaceutical products until relatively recently. Margo offered data on pharmaceutical companies' expenditures on research/development and sales/marketing --the latter being higher -- and profit margins (higher than other major industries). Question today is: who's stealing from whom?
Michael Kock, Global Head of IP at Syngenta, discussed the ethical use of patents in plant innovations. He noted that the world must produce more food in the next fifty years than it has in the last 10,000 years. Every second, the world loses on football field of farmland due to urbanization and erosion. Climate change is also affecting agricultural production in some regions. He pointed out that carrots are orange only because breeders created an orange carrot in the nineteenth century. Other than some mushrooms and berries, all crops have been changed by humans -- none are "natural." So how much genetic interference is acceptable? Plant variety protection through conventional breeding is generally accepted but plant variety protection does not protect specific attribute, just entire plant variety. We have an increasing need for innovation and increasing need for investment given technical complexity compared to traditional breeding. Can we minimize the problematic effects of a patent on life without losing the benefits? New international licensing platform shows promise -- "free access but not access for free." The platform is based on fair pricing, MFN principle, transparency, "pull-in effect" (if you want access, you have to grant access to your inventions). Voluntary efforts such as the licensing platform, though, may not be sufficient.
University of Illinois law professor Paul Heald presented a sociological history of religious objections to patenting life, asking: why is there no significant religious objection to patenting life in the U.S.? One major reason is the rise of Christian libertarianism and Christian materialism. Business interests succeeded in convincing Americans that business interests and Christian interests overlap. Because patent rights are property rights, criticizing patent rights is akin to criticizing property rights. There have been a few statements made, but they failed to gain traction. There are high information costs in developing an educated position, and this is a relatively low-priority issue for American Christians compared to abortion, the death penalty, etc. Even within the world of corporate agricultural practices, this may not be the most pressing issue; what's more of a problem: seed patents or the seed company's corruption of lending practices in developing countries (forcing local farmers to buy expensive patented seeds by persuading banks not to lend to farmers unless they use the advanced seed technology)?
Dr. Kathleen Liddell, director of the Centre for Law, Medicine and Life Sciences at Cambridge University, addressed the exclusion of "immoral" inventions from patent law. In addition to discussing potential levers for improving current law, she raised questions that must be resolved. When we're proposing morality-based exclusions, are we focusing on the morality of performing the technology itself (e.g. letter bombs), the morality of granting patent rights (e.g. life-saving drugs), the morality of patenting an invention based on unethical research (e.g. embryo-based technologies), or all three? And is morality determined by a harm-benefit calculation, the fact that granting of the patent would be universally regarded as outrageous, or more modestly, that granting a patent would be contrary to a particular country's norms?
She asked theologians to develop a more nuanced understanding of IP law and realistic opportunities and constraints for ethical/religious touchstones within IP law, and she encouraged IP lawyers to develop a better understanding of epistemologies other than law.
St. Thomas Law School's Murphy Institute, directed by MoJ's Lisa Schiltz, and the Von Hugel Institute are co-sponsoring a two-day conference at Cambridge University exploring "Patents on Life: Through the Lenses of Law, Religious Faith and Social Justice." The opening panel featured several insightful exchanges. Archbishop Silvano Tomasi, Apostolic Nuncio and Permanent Observer of the Holy See to the United Nations in Geneva and the World Trade Organization, presented an overview of the Church's social teaching as it pertains to intellectual property, including the idea of a social mortgage on all private property and the need to balance incentives for innovation and the sharing of benefits that result from innovation. When asked whether this emphasis simply reflects the state of the current public debate or contributes a distinctly Catholic insight, he rejected the suggestion that the Church must contribute a unique perspective. What is important, he explained, is that there is a convergence of wills to do what is necessary to achieve a prudent balance between innovation incentives and benefit sharing. His directness in answering the question is a helpful reminder that, as scholars and advocates mining the Catholic intellectual tradition, we need to be careful not to be distracted by a perceived need to articulate (or create) unique insights rather than support and facilitate "a convergence of wills," including wills forged by different traditions and worldviews.
Friday, May 1, 2015
Today I had the privilege of participating in a conference, Reconsidering Access to Justice, hosted by Texas A&M Law School. My role was to offer comments on a great new paper presented by David Luban. In his paper, David explores the “discourse of optimism,” which he uses to refer to the view that "new technologies are revolutionizing the delivery of legal services to such a degree that we might foresee a technical fix to many of access to justice problems." He is hesitant to embrace this optimism fully, noting that a human legal adviser has several qualities that even the most sophisticated machine cannot replicate, including emotional intelligence, moral give-and-take, and creativity. He then discusses the relationship between legal justice and social justice in ways that are insightful and productive, as his longtime readers will expect.
In my response, I focused on the promise of technology in the quest to address access to justice problems. I'll post just a brief excerpt that captures my main point:
I am not confident that the market is effective in distinguishing legal needs that do or do not require the assistance of a lawyer; even in the corporate sector, I think we’re likely to see costs – both to the client and the broader society – from a reduced reliance on lawyers in the pursuit of perceived greater efficiencies. And if corporations don’t always make the call that is in their long-term best interests because of short-term financial considerations, why do we think the poor will fare better? Especially when the broader society is eager to latch on to cheaper technological short-cuts that allow us to avoid adequate funding of legal services?
Of course, our alarm over these trends is a function of our assessment of the value proposition presented by lawyers. Whether it’s representing the marginalized individual or the powerful corporation, if we presume that lawyers bring nothing else to the table beyond legal information or scalable technique, clients have no reason to expect something more, and there’s no reason for alarm when the “something more” fades from view. And as Richard Susskind reminds us, the strictly technical tasks can be disaggregated and divided among the lowest bidders, short-circuiting any role that would require coherent – much less comprehensive – knowledge of the client and her overarching needs and interests, thereby making the “something more” even more elusive. It’s a cycle that feeds on itself.
I write “potentially” because lawyers still have something to say about their future, even if it proves to be only on the margins. But to speak into the future, we need to answer a more fundamental question about who we are in the present, who we are as professionals. As law schools, can we train trusted counselors who, as David Luban puts it, exhibit emotional intelligence, moral give-and-take, and creativity? The public we serve – poor and rich alike – should care very much that we can and do.
Sunday, April 12, 2015
In yesterday's NYT, Adam Liptak notes that no major law firm will touch the SSM cases before the Supreme Court. The explanations offered in the article by firm leaders and industry observers fall into three categories: 1) the issue is so controversial that taking on the representation will impact a firm's attorney recruiting, client retention, and staff morale; 2) firms recognize that there are no meritorious arguments against SSM; and 3) as Michael McConnell puts it, there is a powerful desire to "crush dissent" on the issue of SSM.
Explanation #2 appears to me to be a non-starter. Whether or not SSM is wise as a matter of policy or morally compelled as a matter of justice, I have a hard time believing that the issues surrounding its constitutional status are so one-sided that a firm would see no good-faith basis for litigation. There is, I believe, something to be said for explanations #1 and #3.
I'm reluctant to condemn categorically what's happened here, as we can easily fall into the trap of disclaiming any moral accountability for the cases and causes to which lawyers lend their efforts. I believe that, at least in civil cases, lawyers bear some responsibility for the choices they make in client selection. (I have explored these ideas more deeply here and here.)
Indeed, those who applaud the unwillingness of law firms to step up to defend prohibitions on SSM might look to an earlier era of professional ethics as a guide. David Hoffman’s Resolutions, considered by some to be the nation’s first legal ethics code, included the bold statement: “I am resolved to make my own, and not the conscience of others, my sole guide. What is morally wrong cannot be professionally right.” George Sharswood’s Ethics considered it “an immoral act to afford that assistance, when [the attorney’s] conscience told him that the client was aiming to perpetrate a wrong through the means of some advantage the law may have afforded him.” According to the 1908 Canons of Professional Ethics, the lawyer “advances the honor of his profession and the best interests of his client when he renders service or gives advice tending to impress upon the client and his undertaking the exact compliance with the strictest principles of moral law.”
The inconsistency, of course, is that law firms are not routinely declining other controversial causes, even those that conflict with emerging social norms, nor are they giving even lip service to the existence of accountability to extralegal norms, much less to "the strictest principles of moral law." I'm not suggesting that we should return to the rhetoric of the 1908 Canons (which, I suspect, was empty rhetoric more often than not), just that there is precedent for the notion that lawyers should be morally accountable for the decisions that they, and their clients, make. Will the SSM cases mark the beginning of an era in which firms, perhaps echoing themes from the Corporate Social Responsibility movement, make client selection decisions that are shaped by moral commitments?
If our "Hobby Lobby" moment of morally engaged business organizations is going to extend to large law firms and the choices they make regarding the clients they'll serve, this could be a healthy development for the profession and broader society. If, as I suspect, this is more about firms' unwillingness to court controversy on a rapidly strengthening social norm even when there are important constitutional issues to be resolved, this could be an ominous development for our profession's long tradition of providing a voice for unpopular causes.
Monday, March 9, 2015
I've posted a (relatively) new paper on SSRN, Martin Luther King Jr.'s Lessons for Lawyers in a Time of Market Disruption. The abstract:
This essay, delivered as the 2014 Tabor Lecture at Valparaiso University Law School, argues that our conception of the lawyer’s work lacks a rich and full understanding of the human person. This absence may not only hurt the lawyer’s ability to derive meaning from her work and advance the common good, but also may contribute to a perception that lawyers are becoming expendable in a market of fungible business service providers. The failure is starkly apparent when one considers the anthropological commitments that permeated the work and worldview of Martin Luther King Jr. Though he was not a lawyer, he was an advocate for the interests of others, and he was a Christian who was able to live out his beliefs in ways that were accessible and influential to those who did not share the underlying religious premises. While King’s moral duties were not constrained by the more particular fiduciary duty that lawyers owe to their clients, I believe that lawyers overstate the degree to which their moral agency is so constrained, and in doing so, abdicate moral responsibility for their work. Lawyers who endeavor to practice with the person at the center, as King did, will act as: (1) subjects; (2) healers; (3) prophets; and (4) realists.
Friday, October 10, 2014
As the father of three daughters concerned about how their future husbands are being formed by our culture, I notice the mainstreaming of pornography. This week "Porn Hub" put up a giant ad in Times Square, further signaling porn consumption as an accepted -- even expected -- dimension of modern life. The ad was the winning selection from more than 3000 entries in a contest designed to identify a "SFW" marketing campaign for a service that is decidedly "NSFW." An anti-pornography site posted marked-up versions of some of the entries, redesigning them to show the real costs inflicted by pornography use. What struck me most were the reactions to the anti-pornography site, with commentators 1) asking how these Puritans could be so uptight about something that is "harmless" and that "everyone" uses? and 2) from those who agree that porn use is not harmless, criticizing the site for trying to shame pornography users (not by naming them, mind you, just by condemning the use of porn), and that the better tactic is to express sympathy for, and offer support to, porn users.
Two responses: 1) Porn is not harmless, and there is increasing evidence of its destructive nature that is accessible even to the non-"Bible thumping" crowd. 2) Offering support is important, but consumers of porn need to understand the potential harms before support is even relevant or possible. Our society has largely turned a blind eye to the rise of pornography. We are not in a place where a conversation about turning away from porn can find wide traction; first we need to reengage the reasons why the consumption of porn used to be shameful.
When I lived in NYC, I once called the City to complain about an extremely inappropriate (in my view) Calvin Klein billboard that had just been put up in the middle of Manhattan. The operator spent ten minutes trying to identify a category in which to place my complaint -- there was no category for indecency, inappropriate advertisements, etc. Finally she gave up and transferred me to the local precinct of the police department. Ten years later, are we losing our capacity to recognize a basis for complaining about porn?
Last weekend I had the privilege of speaking at the national conference of the Canadian Christian Legal Fellowship. It was very similar to Christian Legal Society conferences in the U.S. except that different court cases were stirring passions. The controversy surrounding the proposed Trinity Western Law School was a frequent topic of conversation. It appears that Canadian law is supportive of Trinity Western's right to train professionals without sacrificing its community covenant; it's the members of the various provinicial law societies who are working to block accreditation.
One equally interesting debate concerns the case of Loyola High School v. Attorney General of Quebec, a case pending before the Canadian Supreme Court. Loyola objects to the government's requirement that the Catholic school teach the required Ethics, Religion and Culture (ERC) curriculum from a neutral perspective in order to support pluralism and facilitate dialogue among students. The oral arguments in March 2014 included some exchanges that would be eyebrow-raising in the US, including one Justice's suggestion that Loyola avoid the dilemma by hiring a non-Catholic to teach this portion of the curriculum. Opposition to the ERC is not universal, even among traditional evangelical Christians. Regent prof John Stackhouse, for example, supports the ERC as a sensible approach in a pluralist society. The Court's ruling, expected in the coming weeks, will shape the future of institutional religious liberty in Canada.
There is a vibrant community of religious liberty advocates in Canada, including Christian Legal Fellowship and the Canadian Council of Christian Charities, and it was a privilege to get to know their leaders
Tuesday, September 23, 2014
Eli Wald (Denver) and Russ Pearce (Fordham) have offered a thoughtful and helpfully critical review of my recent book, Martin Luther King Jr. and the Morality of Legal Practice: Lessons in Love and Justice. Here's the opening:
Rob Vischer has written an elegant and thought-provoking book, in which he asserts convincingly that something is very wrong with the legal profession and lawyers today and supplies an innovative and intriguing, albeit not fully realised, alternative vision. In doing so, moreover, Vischer joins Brad Wendel in authoring a pathbreaking book as part of a ‘new generation’ of scholars that seeks to build on the success in influencing the academy—and to learn from the failure to persuade practising lawyers—of an earlier generation of leading thinkers, including David Luban, Deborah Rhode, William Simon and Thomas Shaffer, who challenged the dominant conception of lawyers as neutral partisans. . . .
The bulk of Vischer’s book is an attempt to address this very challenge [of individualism] by providing a rich account of relational content to lawyers, offering means of expanding their view, as well as their clients’ view, to develop a practice of law that respects and advances clients’ true nature and objectives as relational beings. The relational content draws primarily on the teachings and thinking of Dr Martin Luther King, Jr—including his reliance upon agape, personalism, justice and Christian realism. Vischer’s book is impressive because it builds on at least three bodies of work—Dr King’s teachings, Christian theology and lawyers’ professionalism—to produce an easily readable, concise, practical blueprint for lawyers interested in serving the actual needs of their clients. The book successfully demonstrates that lawyers’ fundamental premise about clients is erroneous or at least overly reductive, and creatively challenges the orthodoxy of autonomy and individualism by offering a rich relational alternative. It does all of that by reintroducing Dr King’s work to a new generation of lawyers—an objective worthy in and of itself.
Wald and Pearce do express some skepticism about some of my conclusions, wondering, for example, if atomistic individualism is so ingrained in our culture that the removal of institutional barriers will actually pave the way for relational lawyering in any meaningful sense.
Monday, July 7, 2014
In the current Chronicle, U Penn English prof Peter Conn offers a remarkably misguided essay on accreditation. An excerpt:
I want to raise [an] . . . important objection to accreditation as codified and practiced now. By awarding accreditation to religious colleges, the process confers legitimacy on institutions that systematically undermine the most fundamental purposes of higher education.
Skeptical and unfettered inquiry is the hallmark of American teaching and research. However, such inquiry cannot flourish—in many cases, cannot even survive—inside institutions that erect religious tests for truth. The contradiction is obvious.
Citing Wheaton College as an example, Conn notes that its faculty are required to affirm faith statements, and thus Wheaton "makes a mockery of whatever academic and intellectual standards the process of accreditation is supposed to uphold."
Where to begin? Three quick points:
First, as Conn acknowledges, there is a (largely sensible) move to shift accreditation standards from being focused primarily on inputs to being focused more on outputs. Categorically excluding certain institutions because of the commitments they bring to the education process takes higher ed in exactly the wrong direction. The success of Wheaton grads (and grads of many other institutions that require statements of faith) speaks for itself.
Second, as most folks seem to have recognized at least ten years ago, there is a value to institutional pluralism -- even if all we care about is the role of faculty research in the pursuit of truth. To take one of countless examples, would Mark Noll have flourished as a historian at the University of Illinois to the same extent that he flourished at Wheaton (and continues to flourish at Notre Dame)?
Third, many Christian colleges make their commitments explicit; many secular colleges do not. Does weeding out the institutions that are explicit ensure that secular colleges cultivate environments in which totally "unfettered inquiry" can and will proceed? If we throw out a certain category of institutional commitments, have we effectively closed off certain paths of inquiry?
Should religious colleges be automatically entitled to accreditation? Of course not. Neither should secular colleges. The focus for both should be on the fruits of their labors, not on the reasons they labor in the first place.