A SCOTUS Lesson: Yates and the Construction of Materiality

A fish is no doubt an object that is tangible,” but a fish is not a “tangible object” for purposes of Section 1519 of the Sarbanes-Oxley Act.

That’s the Supreme Court of the United States, in Yates v. United States, decided today.

What’s more, for copyright enthusiasts, “A tangible
object captured by §1519, we hold, must be one used to record or preserve information.” Not that copyright law itself had anything to do with this case. But limiting “objects” to “objects that record information” reminds me of copyright’s circular definitions of “copy” and “fixation.” A copy is an object in which a work is fixed; a work is fixed when it is embodied in a copy. Here, an object is something that records information. And something that records information (a “record”) is an object. Small wonder that four Justices decided that they wanted no part of this fishy business. But Justice Kagan’s dissent has to be right: You can hold a fish in your hand, and by any ordinary, sensible reading of the phrase “tangible object,” the fish counts. The Supreme Court can making something out of nothing, but can it really make nothing out of something?

@SCOTUSBlog coverage here.

@LanguageLog coverage here.

Scholarly IP Conferences Roundup from @PatentScholar

Intellectual property researchers, especially younger and newer researchers, may at times feel overwhelmed (or, alternatively, underinformed) regarding which conferences, symposia, workshops, and so forth are the “right” or “best” venues for sharing their work and meeting colleagues.

Lisa Larrimore Ouellette (@PatentScholar) has a brilliant post up at her Written Description blog that opens a dialogue about those concerns, and more.

Read: Academic IP Conferences, http://writtendescription.blogspot.com/2015/02/academic-ip-conferences.html

Pittsburgh: Lagging and Leading

There was an interesting juxtaposition in Pittsburgh economic development news last week, courtesy of the @pittsburghpg @rczullo:

Lagging: “Brookings high-tech list a holy Toledo moment.” According to a recent Brookings Institution report, Pittsburgh is lagging other metro regions in its concentration of so-called “advanced industry” jobs. (Here is a link to the full report.) It’s possible to parse the data so that Pittsburgh doesn’t look quite so bad, but really, the headline tells the version of the story that has legs.

Leading: “‘Code for America’ fellows aim to make Pittsburgh more transparent.” The city of Pittsburgh has used Code for America money to bring a small team of hackers to town to make public procurement more transparent. I can only imagine the folks and interests that will be disrupted by this. The PG reported: “Contracts and campaign contributions often are the fuel that powers political machines, but Mr. Peduto said he wants the three Code for America fellows who will spend a year in Pittsburgh to help open up city purchasing to small businesses and others who have been historically shut out of the process and strip away ‘that whole machine.'” Good for Mayor Peduto.

Something New for Law Reviews

More than a dozen years ago, students at my law school came to me and proposed that I become the faculty advisor to a new student-edited specialty law journal in technology law and policy. I agreed and navigated the proposed journal through our internal approvals process. Success! I proudly shared my mini-professional success, and my school’s advancing in the IP/technology law ranks, with a senior colleague who had been a mentor to me. Hearing the news that another specialty technology law journal had launched, the response was an underwhelming and almost incredulous “another one?”

Since then, I have worked with the students to make the journal relevant, sometimes with more success and sometimes with less. My message has always been: speak to the regional audience. Pittsburgh (like many re-emerging economies) is in dire need of thoughtful law and policy analysis.

Last Fall, at Concurring Opinions Dave Hoffman wrote a short piece summarizing his three-part advice to law review student authors and editors, including focusing their writing on shorter, more usable pieces. I’m happy to say not only that I agree with him, but also that at TLP, we have all three items on his list already in place and practice. The big one is: write short pieces about recent stuff, not bloated “notes” about appellate judicial opinions.

Over the last three years, Pittsburgh’s Journal of Technology Law & Policy has set its sails properly, and now the winds of progress are blowing in our favor. Beginning in the Fall of 2012, “TLP,” as the journal is known here, has focused much of its effort on publishing student-produced series of short law and policy pieces that address technology topics of interest to the Pittsburgh region. Each one is introduced by a short paper authored by a notable law and/or policy person, both to give the series some higher-level framing and to bring the series some of the public attention that it deserves.

The most recent of TLP’s “Student Article Series” is now online, at tlp.law.pitt.edu. The theme is “smart cities,” and the introduction is by Pittsburgh’s Mayor, Bill Peduto.

Farewell to a Contracts Giant, John Murray

The legal blogosphere has been curiously quiet regarding the news that John Murray, law faculty member at Duquesne Law, former faculty member at Pitt Law, former Dean of the law schools at Pitt and at Villanova, and Chancellor and former President of Duquesne University, passed away last Wednesday.

(Thanks to the ContractsProf Blog for a short note.  The Pittsburgh Post-Gazette published this long obituary.)

The relative silence might be a puzzle, because John Murray was the very embodiment of teaching, in the classroom, among his colleagues, and in the public sphere.  (If only I could publish some of the email tributes now circulating on my school’s internal faculty list, and no doubt circulating elsewhere among law faculty who were mentored by John Murray early in their careers!)  Anyone who met or heard John Murray was struck immediately by the man’s presence, which was incredible and powerful and generous.

Perhaps the omission is not so much a puzzle; the latter part of his career was spent leading (and rebuilding) a regional Catholic university.  He was still a law teacher and scholar, but his major contributions to the law were years in the past.  He carried himself with enormous dignity, but he was not, by any means, a “modern” law professor or a name “brand” influencing the current generation of young teachers and scholars.

I teach a leadership course to members of my law school community, and I focus on leadership as voice:  understanding and sharing your sensibility, spirit, and presence in the world, how you cultivate that and share it so that you have the kind of impact and effect that you want to have.  I only met and heard John Murray in person a few times, for he was long gone from Pitt Law when I arrived.  But he had a wonderful voice, in the sense that I just described (he also had a tremendous speaking presence).  And all of Pittsburgh, its legal community, and the contracts and sales parts of the legal profession benefited mightily from it.  He will be missed.