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Five TJSL Professors Present at Hawaii International Law & Society Conference

June 27, 2012


Five TJSL Professors recently appeared at the Law and Society Conference in the first week of June in Honolulu, Hawaii.

Professors Brenda Simon, Meera Deo, Brian Wildenthal, Rebecca Lee and Kaimi Wenger all gave presentations on highly varied topics of their research and expertise.

Professor Brenda Simon presented her work titled “The Implications of Cognitive Technologies for Obviousness” at the International Law & Society Conference in Hawaii. She discussed a framework for figuring out if an invention is too different from what came before it to deserve a patent. In particular, she examined how advances in cognitive technology, such as access to searchable information and increased processing capabilities, might make an invention is too obvious to deserve a patent.

Professor Simon also discussed research studies addressing how these technologies could affect working memory, interdisciplinary collaboration, and predictability. Professor Simon proposes refocusing the obviousness inquiry on what those actually practicing in the area would understand. She also presented her research at the Stanford Law & Biosciences Workshop on March 6.

Professor Meera Deo presented on her article “Viewing Sovereign/Segregated Groups through the Lens of Privilege.”  She explains, “My article places empirical research data collected at the University of Michigan Law School in 2010 within a framework of privilege borrowed from Stephanie Wildman’s book Privilege Revealed to investigate perceptions of law student organizations. Specifically, I examine race/ethnic-specific law student organizations as a safe space ‘buffer’ from the larger campus, with the recognition that some may see these groups as contributing to a segregated campus.  In fact, sovereignty and segregation may be two sides of the same coin; the groups cannot be ‘safe’ for students of color if they are non-exclusive, thereby mirroring the predominantly white campus as a whole. The (mainly white) students who object to groups as promoting separation do so acting on their privilege of whiteness; the students (mainly of color) who join these groups do so often because they are marginalized/’othered’/not privileged in the traditionally white male space of law school.”

Professor Rebecca Lee presented on her article “On Judicial Leadership.” As Professor Lee explains: “My work focused on leadership in the judicial work setting.  The concept of leadership may not automatically attach to the judicial role because of the apolitical and independent nature of judging work.  But judges can and do lead in a number of ways: by leading their respective chambers and the particular court on which they sit, by demonstrating leadership in how they decide cases, by representing the judicial branch, and by shaping the broader legal profession.  Judges do not actually function alone in important aspects of their work – rather, they interact with and consult other individuals in their chambers, in the courthouse, on the bench, and in the legal system.  Yet judges are not necessarily trained to take on their multiple leadership responsibilities, although some leadership programs geared for judges have been offered.  Interestingly, a number of prominent judges have been described as effective leaders, but the focus commonly has been on their court opinions and less commonly on how they operated within their organizations and how they related to other judges and colleagues.  The courthouse is in essence a particular kind of workplace, and judges’ various roles include leading as an employer and court system manager and administrator.  Chief judges and justices further have a supervisory-type role vis-à-vis other members of the bench.  While a judge’s work is carried out in a highly formal and procedure-based setting, judges nonetheless help determine how this work ultimately gets done.  This paper seeks to explore the challenges and opportunities for leadership in the context of the judicial work environment.”

Professor Bryan Wildenthal’s presentation was to comment on Adam Winkler’s book “Gunfight: The Battle Over the Right to Bear Arms in America.” Winkler is a professor at UCLA Law School, who joined on the panel to respond to the comments and critiques.

Also on the panel with Professor Wildenthal were Professor Lawrence Rosenthal of Chapman University Law School, and the distinguished constitutional scholar Professor Sanford Levinson of U. of Texas School of Law, on the panel of commentators.

All of the panelists praised Winkler’s book as a strikingly fair and evenhanded assessment of the gun rights controversy.

“I commented specifically that Winkler challenged both pro-gun-rights and pro-gun-control zealots to rethink some of their assumptions,” said Professor Wildenthal.  “The pro-gun-control crowd needs to face up to the overwhelming evidence Winkler summarizes showing that there is indeed an individual right to bear arms under the Second Amendment, and furthermore that almost all states have historically guaranteed an individual right to bear arms under their state constitutions as well. Those who would advocate banning all handguns or confiscation of most weapons are fighting an uphill battle against centuries of social consensus in America in favor of gun rights and are pursuing a fundamentally unrealistic goal.”

Professor Wildenthal offers further discussion: “Winkler summarizes there is overwhelming evidence that America also has a long historical tradition of strict gun control. The idea that gun control originated in the 20th century with urban liberals is a myth. Old West towns on the American frontier had some of the strictest gun control laws ever, including bans on either open or concealed carry, and even requirements that visitors to town “check” their guns with the local sheriff or police. Founding era state militia regulations, in the 1790s, required regular inspections and registration of all guns, and all citizens serving in the militia were required to buy guns meeting state militia requirements and to submit to regular musters on the village green and inspection of their weapons, and governmental record-keeping of who owned what guns (restrictions the NRA would never tolerate today).

There is very little or no basis, in any ‘originalist’ view of the Constitution, to question modern gun control laws regulating sale and purchase of guns, registration or licensing of guns, and even severe restrictions on where and how guns may be carried. Modern gun enthusiasts and the NRA may oppose such gun control laws, but the Constitution offers little support for their position.

At the same time, the Constitution probably does, as the Supreme Court has held, prevent the government from totally banning or confiscating guns. Thus, the Supreme Court’s decisions in Heller (2008) and McDonald (2010), which struck down total bans in Washington, D.C. and Chicago, were almost certainly correct and consistent with a sound interpretation of the Constitution. But those decisions may not have much significance for more moderate forms of gun control, which will probably meet constitutional muster.

At the same time, Winkler notes that many gun control laws, historically, were aimed at disarming African Americans and preventing them from defending themselves against racist violence from the Ku Klux Klan and others. The evidence does not suggest that more guns leads to more crime. At the same time, it is not clear that more guns leads to less crime either.

The history is very mixed and has a lot to make both sides reconsider the simplistic and extreme positions of each side of the debate.”