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T h e M ag a z i n e o f S a n ta C l a r a U n i v e r s i t y S c h o o l o f L aw | S P RING / S U M M ER 2 0 1 2 | vo l 1 8 n o 2

magazine

rising star Sam O’Rourke ’99, Deputy General Counsel, Intellectual Property, Facebook Inc., was one of six Santa Clara Law alumni honored in the 2012 Bay Area Best Corporate Counsel Awards. See page 4.

6 Exploring Intelligent Transportation

16 A High Tech Partnership With Seoul

33 The Supreme Court Considers Health Care


de a n ’ s m e s s a g e Dear Friends of Santa Clara Law:

T

KEI TH SU TTER

here is considerable public controversy and speculation about two intersecting arguments in legal education and law practice. One asserts that legal education lacks transparency to its most important constituencies, and ignores seismic changes in the legal profession. The second claims there is a paradigm shift in the work of lawyers and the business plans for many large corporate and business law firms. There are legitimate factual bases for these contentions, as the legal profession and legal education have changed dramatically in the past three years and are expected to continue to do so. For example, in the past two years, the total volume of applications to American law schools has declined by almost 25 percent. Law school tuition continues to increase, as has the average student indebtedness to attend law school. There are congressional inquiries into the accuracy of law school reported data about job placement for graduates, and a few disgruntled graduates have maintained consumer class actions against their law school for alleged misrepresentation of employment data. Moreover, on the employment front, the legal profession lost more than 12,000 jobs in 2008. Law firms began to defer starting dates for recent graduates, and many job offers went away completely. Since the beginning of the financial downturn, many firms have accelerated their switch away from lockstep compensation and are creating new competency-based models. In the light of this, two fundamental questions arise: Is there a contemporary case for attending law school? What do these trends mean for Santa Clara Law? First, I think that the case for going to law school today is as good as it was when I went to law school 40 years ago. There are, and will continue to be, professional career opportunities for today’s graduates, and these will increasingly include career paths in business, in-house, and government. Further, the country still needs many more lawyers to provide legal services for the poor and to serve nonprofits and other public service sectors. While a decline in equity partners is expected, there will continue to be opportunities in large firms in other roles and in midsize firms, especially as a significant group of baby boomers begin to retire. Plus, becoming a lawyer continues to excite the interests of bright, morally engaged young people. In recent surveys, young lawyers report high satisfaction with their decision to go to law school and with the work they are doing. Many say they were attracted to the study of law and to the legal profession for the same reasons that my generation was—it is a “people business,” it involves complex work with and around other smart people, and lawyers have the tools to help others and to solve problems. However, great challenges remain. Today’s law students need skills that were not in curricula 40 years ago—and are not in many curricula today. Tomorrow’s legal workplaces are demanding bright graduates who not only know the law and have good work habits—they also are requiring that young lawyers are trained to interview clients, handle a simple mediation, demonstrate fundamental trial advocacy skills, know how to manage projects and work on teams, and have leadership skills. With respect to the question of a paradigm shift, Santa Clara Law is actively preparing for the current and anticipated changes in many law practice and legal services sectors. We are finetuning our strategic plan to help us address change (see page 22). We are committed to maximizing career opportunities for our graduates by expanding experiential learning and emphasizing a broader range of professional skills critical to contemporary law practice. The Law Career Services Office aggressively reaches out to both graduating students and alumni with career planning strategies and job search assistance. Many of you—our graduates and friends—have stepped up to create opportunities for externships, act as mentors to students, provide job leads, and even recruit new hires. You bring our alumni network to life, and we thank you for your support and assistance. I am pleased to note that the legal employment market, especially in Silicon Valley, seems to be rebounding, albeit slowly. As I contemplate changes yet ahead, I am confident that our next generation of graduates will continue our legacy of service to all sectors of the profession and our communities. Thanks for doing your part to make that possible!

JULIA YAFFEE M.A. ’88, M.A. ’97 Senior Assistant Dean for External Affairs Elizabeth Kelley Gillogly b.a. ’93 Editor LARRY SOKOLOFF ’92 Assistant Editor Michelle Waters Web Marketing Manager Jane Ludlam Copy Editor Amy Kremer Gomersall b.a. ’88 Art in Motion Art Director, Designer Charles Barry Santa Clara University Photographer Law Alumni Relations & Development Assistant Dean Trevin Hartwell Karen Bernosky ’81 Ellen Lynch Susan Moore ’86 Stephanie Rosas ’96 Marjorie Short Amir Tejani Santa Clara Law, founded in 1911 on the site of Santa Clara University, California’s oldest operating highereducation institution, is dedicated to educating lawyers who lead, with a commitment to excellence, ethics, and social justice. One of the nation’s most diverse law schools, Santa Clara Law offers its 975 students an academically rigorous program, including graduate degrees in international law and intellectual property law; a combined J.D./MBA degree; a combined J.D./ MSIS degree; and certificates in high tech law, international law, and public interest and social justice law. Santa Clara Law is located in the world-class business center of Silicon Valley, and is distinguished nationally for its top-ranked program in intellectual property. For more information, see law.scu.edu. If you have any questions or comments, please contact the Law Alumni Office by phone at 408-5511748; fax 408-554-5201; e-mail lawalumni@scu.edu or visit law.scu.edu/alumni. Or write Law Alumni Office, Santa Clara University, 500 El Camino Real, Santa Clara, CA 95053. The diverse opinions expressed in Santa Clara Law do not necessarily represent the views of the editor or the official policy of Santa Clara University. Copyright 2012 by Santa Clara University. Reproduction in whole or in part without permission is prohibited.

Best wishes,

 Donald J. Polden Dean

Cert no. XXX-XXX-000

AIM 05/12 11,500

Santa Clara Law is printed on paper and at a printing facility certified by Scientific Certification Systems to Forest Stewardship Council (FSC) standards. From forest management to paper production to printing, FSC certification represents the highest social and environmental standards. The paper contains 10 percent postconsumer recovered fiber.


contents

Driving the Future: A conference at Santa Clara Law explores the promises and challenges of autonomous cars. Page 6.

photo courtes y ko zuch | f li ckr

4

The San Francisco Bay’s Best Corporate Counsel

By Larry Sokoloff ’92 Santa Clara Law was proud to have six

alumni honored in the 2012 Bay Area Best Corporate Counsel Awards, sponsored by the Silicon Valley/San Jose Business Journal and the San Francisco Business Times.

6

2 Law Briefs 24 reunion updates 28 class action 33 closing arguments

Driving the Future—The Promises and Challenges of Autonomous Cars By Susan Vogel Cars that drive themselves are quickly becoming a reality, but what legal questions do they raise? To find out, the 2012 Santa Clara Law Review Symposium gathered 25 professionals from around the U.S. in law, engineering, policy, and insurance.

16 A High Tech Partnership With Seoul

By Susan Vogel For nearly three decades, Santa Clara Law and

its strong partnerships in Korea have helped the country’s legal system keep pace with the technology boom.

22 Building the Future: A Progress Report on Santa Clara Law’s

Strategic Initiatives

By Donald J. Polden The dean of Santa Clara Law shares

recent accomplishments and progress toward key goals in the school’s strategic plan.

VISIT THIS MAGAZINE ON THE WEB Visit us online for more photos from our Law Reunion Weekend, as well as the very latest news about our faculty, students, and alumni. Our magazine website also makes it easy to share articles from this issue (or previous issues) with friends and colleagues. law.scu.edu/sclaw

cover photo by nancy martin

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Santa Clara Law professor of international law Beth Van Schaack has been selected to serve as deputy to U.S. Ambassador-at-Large for War Crimes Issues Stephen Rapp, in the U.S. State Department’s Office of Global Criminal Justice. Van Schaack has taken a leave of absence from her teaching duties to fulfill her new appointment, which will last up to two years. In her new role, she will be assisting Rapp in helping to formulate U.S. responses to atrocities committed throughout the world, working closely with international tribunals, nongovernmental organizations (NGOs), and foreign governments to ensure accountability for international crimes according to international human rights principles. She will also help the office in its role advising governments on implementing other forms of transitional justice, such as truth commissions and commissions of inquiry. “Beth’s considerable skills as a lawyer, her knowledge and expertise in the areas of human rights and international criminal law, and her judgment and professionalism make her an ideal candidate for this State Department appointment,” said Santa Clara University School of Law Dean Donald Polden. “We look forward to welcoming her back once her appointment concludes.” Van Schaack is an internationally recognized expert in international law, with experience in international criminal law, international humanitarian law/law of armed conflict, and transitional justice. She has advised prosecutors of international crimes committed in Uganda and Cambodia, and was formerly executive director and staff attorney at the Center for Justice and Accountability, an international human-rights law group. She has served as an observer or NGO

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keith sutter

Santa Clara Law Professor Appointed to U.S. State Department Office of Global Criminal Justice

Santa Clara Law Associate Professor Beth Van Schaack (above) is an internationally recognized expert in international law, with experience in international criminal law, international humanitarian law/law of armed conflict, and transitional justice. She was formerly executive director and staff attorney at the Center for Justice and Accountability, an international human rights law group. delegate and attended sessions of the Human Rights Council in Geneva, Switzerland, as well as meetings of other United Nations bodies. In 2002, she was on the defense team for John Walker Lindh, the American convicted of joining the Taliban. She earned her bachelor’s degree from Stanford University and her J.D. from Yale Law School. She clerked at the International Criminal Tribunal for the former Yugoslavia and was an Open Society Institute Justice Fellow. At

SCU, she hosted an annual workshop in international humanitarian law along with the International Committee of the Red Cross. Her new boss, Ambassador Rapp, is the former chief prosecutor of the Special Court for Sierra Leone, where he initiated the prosecution of former President of Liberia, Charles Taylor. Prior to that, he prosecuted cases arising out of the Rwandan genocide as a senior trial counsel for the International Criminal Tribunal for Rwanda.


More Faculty News Assistant Professor of Law Colleen Chien was quoted in a Reuters story that ran in over 50 sites or publications worldwide, about how Facebook was the target of opportunistic patent lawsuits just before its massive filing for an initial public stock offering. In addition, her commentary appeared in 148 publications and websites after she talked to Reuters and the San Jose Mercury News about the patent lawsuit Yahoo brought against Facebook. Santa Clara Law Professor Eric Goldman was shortlisted as an “IP Thought Leader” nominee by Managing Intellectual Property for their 2012 IP awards. The shortlists are compiled by a team of researchers in New York based on information gained over several months. Managing Intellectual Property is the leading global resource for IP news and analysis. He wrote a recent article in Ars Technica about a defamation case involving Wikipedia (visit us online for a link). In addition, Goldman was quoted in numerous tech-law stories, including a widely reprinted Bloomberg story about Google’s ability to combat malware on its Android phone apps, and an ABC News story about two Kentucky women who allege their reputations were destroyed by online attacks. He was also quoted in the Chronicle of Higher Education, Warren’s Washington Internet Daily, CNET, and Above the Law about SOPA; InformationWeek about Oracle’s rejection of a $272 million SAP award over copyright infringement; and National Law Journal, about who owns a person’s Twitter account. Professor Tyler Ochoa filed an amicus brief in a U.S. Supreme Court case involving foreign copyrights, Golan v. Holder. The brief provided an historical perspective about whether Congress’s first copyright statute in 1790 removed any works from the public domain.

Professor Margaret Russell was cited in more than 100 stories about the Prop. 8 case, via articles in the Los Angeles Times, San Jose Mercury News, ABC News, The Atlantic Monthly, Bay Citizen, and Newsradio95.com. She also was quoted in a widely reprinted San Jose Mercury News article about allegations that a police officer arresting a woman also posted a risqué photo of her on her Facebook page from her cell phone. Professor Alan Scheflin, a national leader on the topic of mind and behavior control, was mentioned in a lengthy CNN story about efforts by Sirhan Sirhan’s defense lawyers to get a new trial based on research by Scheflin, and an alleged newly discovered tape

recording of the 1968 shooting of Robert F. Kennedy. The story was picked up in more than 60 additional sites or publications. Professor David Sloss’s book,  International Law in the U.S. Supreme Court, has been awarded a Certificate of Merit by the American Society of International Law. His award goes to a work of “high technical craftsmanship and utility to practicing lawyers and scholars.” The award was presented in March at the annual meeting of the society.  

To read more faculty news, updated weekly, visit law.scu.edu/faculty/facultyspotlight.cfm.

Moot Court Teams Advance

An honors moot court team of Santa Clara Law students won a prestigious trademark moot court competition in San Francisco, and advanced to the finals of the Saul Lefkowitz Moot Court Competition in Washington, D.C. Secondyear Santa Clara Law students Jacob Vigil (left) and Christopher Creech (right) took first place in the regional competition in February. The team was coached by Jeremiah Armstrong ’07 (center), an associate at McDermott, Will & Emery. To read more student news, updated weekly, visit law.scu.edu/life/studentspotlight.cfm

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Six Alumni Honored in Bay Area Best Corporate Counsel Awards Congratulations to the Santa Clara Law alumni who were finalists and winners in the 2012 Bay Area Best Corporate Counsel Awards, sponsored by the Silicon Valley/San Jose Business Journal and the San Francisco Business Times. by Larry Sokoloff ’92

| Photos by Nancy Martin

Sam O’Rourke ’99

Andrew Vu ’93

Deputy General Counsel, Intellectual Property, Facebook Inc. Winner, Rising Star

Assistant General Counsel, SAP Winner, Community Champion

O’Rourke has had a front-row seat at Facebook in the history of the Menlo Park-based company. He was one of Facebook’s first lawyers when he was hired in 2008. He has overseen the growth of the company’s patent portfolio from dozens a year to hundreds. O’Rourke, who surfs in Santa Cruz in his free time, has also been a key player in Facebook’s victories over major spammers, including a $711 million judgment against one.

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Vu co-founded the Vietnamese American Bar Association of Northern California, one of the largest minority bar associations in the country. “We’ve awarded our first fellow to serve the indigent Asian community in San Francisco,” Vu said. “That’s a legacy we’re proud to leave.” Vu is also known for his work as an advocate in the Asian American and gay communities.


Frank Nguyen ’94 Vice President of IP and Licensing, General Counsel, Intuitive Surgical, Inc. Finalist, General Counsel (Intellectual Property Lawyer) During Nguyen’s tenure at Intuitive, the medical device company has grown from $91 million in annual revenues to over $1.7 billion. He has closed multiple deals, including Intuitive’s acquisition of Novare. He joined Intuitive in 2004, coming from an IP post at Macrovision. Nguyen attended the School of Law while working part-time at General Electric. “I was an engineer for eight years, and I felt that the legal profession would open more doors for me,” he said.

Simao “Sim” Avila ’83

Suzan Miller ’89

Riley Russell ’88

Senior Counsel, Kaiser Foundation Health Plan Inc. Finalist, Diversity Champion

Vice President, Legal and Corporate Affairs, Deputy General Counsel, Intel Corp. Finalist, Diversity Champion

Chief Legal Officer, General Counsel; Senior Vice President, Corporate Development, Sony PlayStation Finalist, General Counsel (Private Company)

Avila has worked on labor issues for many years, including a stint at the National Labor Relations Board in Puerto Rico. He oversees all of Kaiser’s employment issues, including claims of discrimination, and compliance with affirmative action laws and policies. He serves on the Kaiser Permanente diversity committee, and is a volunteer for the California Minority Counsel Program. He also lectures on negotiations and ADR at Stanford and the University of California, Berkeley.

Miller has worked in-house at Intel Corp. since 1991. On top of her regular legal duties, she has dedicated countless hours to Intel’s diversity efforts. She serves as the executive sponsor of Intel’s Diversity Management Review Committee, is part of Intel’s Network of Executive Women Extend Our Reach Program (which focuses on working with future leaders within the company), and helps lead a pro bono program.

Riley is considered a pioneer in the computer entertainment industry, cutting his teeth at Sega of America in their games business. With Sony’s PlayStation, he plays a leading role in a company that reaches into homes worldwide. He helped develop the industry’s privacy standards and its rating system, which organizes games into age-appropriate categories based on violence and content. “For a lawyer, it has been an amazing career,” he said.

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By S U S AN VO G E L

DRIVING THE

FUTURE The Santa Clara Law Review Symposium Explores the Promises and Challenges of Autonomous Cars.

How would you feel if you were driving along a road and you saw two tons of steel without a driver barreling toward you at 60 miles an hour? Terrified? Those envisioning the cars of tomorrow say you should feel relieved. “Ninety-five percent of automobile accidents are caused at least in part by driver error,” said Sven Beiker, executive director of the Center for Automotive Research at Stanford (CARS). “If we eliminate the driver, we eliminate a lot of risks.” Beiker was one of 25 professionals in law, engineering, policy, and insurance from around the country who spoke at the 2012 Santa Clara Law Review Symposium, “Driving the Future: The Legal Implications of Autonomous Vehicles,” co-sponsored by the High Tech Law Institute and State Farm Insurance, on January 20. Over nine hours, speakers and attendees discussed new technologies for creating cars that drive themselves, and the challenges of getting them on the road.

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The Need Highway fatalities number nearly 35,000 annually in the United States, and 1.2 million worldwide. Car crashes cost the U.S. economy $160 billion annually. Time and fuel wasted in traffic congestion add $87 billion. On top of that are greenhouse gasses and other pollution caused by inefficiencies in car travel. While the idea of driverless cars began as a novelty, it is now seen as a solution to many of these problems. And with computers, lasers, and wireless communication at the heart of these cars, the Bay Area, especially Silicon Valley, is increasingly the place where critical work on self-driving cars is taking place. This is what inspired Santa Clara Law students Kevin Rogan and Tijana Martinovic, co-planners of the Law Review Symposium, to select autonomous cars as this year’s topic. “The autonomous car, in some form, is inevitable,” Rogan said. “The technology is there, but the law and public opinion need to catch up. And the biggest impediment is the psychology of the driver. We knew these topics would be interesting and stimulate more interest in this area of technology and law” (see “Leading and Learning,” page 11).


While the idea of driverless cars began as a novelty, it is now seen as a solution to many current problems, including crashes, wasted time and fuel, and pollution. And with computers, lasers, and wireless communication at the heart of these cars, the Bay Area, especially Silicon Valley, is increasingly the place where critical work on self-driving cars is taking place. Many symposium attendees, such as Paul Cott, a robotics engineer, attended to “keep up with industry and law.” Others came to network with a group of specialized speakers and attendees who are leaders in the field. O. Kevin Vincent, chief counsel of the National Highway Traffic Safety Administration (NHTSA), said he expected “great benefits to come from the work of people in this room.” Dean Donald J. Polden applauded the Law Review for “bringing together such an amazing group of minds in law, engineering, and policy.” He said the event “really demonstrated the Law Review’s foresight in choosing a relatively new topic that cuts across so many areas of the law and at the same time draws on the Law School’s high tech expertise and important location.”

The Technology Computers began making their way into cars before the 1980s with antilock brakes and traction control systems. Next came navigation systems, parking aids, and cruise control. These automated features are precursors to autonomous vehicles, in which the driver is superfluous. The general setup of an autonomous vehicle (AV), explained Beiker, starts out with the basic elements of a car, “two pedals and a steering wheel,” then adds a GPS and a laser scanner receiving 1.2 million data points per second. Add to that a camera or two, a radar to sense distance, a motion sensor, a speed sensor, and a CPU. Then, the “secret sauce” is the addition of “a central controller that pulls it all together—the

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Stanford University’s autonomous vehicle, “Junior,” was invited to appear at the symposium, but its creators regretfully declined since “Junior” was in the midst of a software upgrade.


brain of the autonomous car that recognizes objects, determines hazards, decides which path to take, and executes the entire mission.”   Google has test cars along these lines, modified Priuses and Audis. Stanford does too. But because of California law, all AVs need a driver ready to take the wheel when prompted. The strong point of the “self-contained” (but reliant on GPS) AV is that it can be put on the road without major changes to the highway system and can share the road with you.

At the other end of the spectrum, says Santa Clara Law Professor Dorothy J. Glancy, an expert on transportation and faculty advisor for the symposium, are “connected AVs, vehicles that are constantly sending and receiving information to and from a wireless network.” They send messages to each other— such as checking in prior to a lane change—and send and receive messages from roadside infrastructure about upcoming potholes, accidents, and weather conditions. With cars sharing information and coordinating movements, a platoon of electronically linked cars could be traveling at a high but constant speed, nearly bumper-tobumper on heavily traveled commuter corridors, before fanning out to their various destinations. This “connected” model would require physical modifications to highways, such as dedicated, protected lanes and instant access to a super-reliable wireless system. And how will these polite, communicative cars interact with conventional cars, with their soon-to-be archaic blinking signals and jarring horns? Symposium speaker Rich Seifert ’06, an engineer and president of Networks & Communications Consulting, is concerned whether the country’s current wireless system can handle what in essence will be “thousands of laptops moving in different directions at fast speeds.” Seifert warned, “Any vehicular control system that depends on communication systems and won’t work in the absence of one will be a big problem.” Santa Clara Law Professor David D. Friedman concurred. “Wireless needs to be the frosting on the cake,” he said, meaning that all connected cars need to operate also as self-contained cars. Communications law expert and symposium presenter Mark Johnson, senior associate at Squire Sanders in Washington, D.C., is more confident than Seifert in the capability of wireless technology. He believes the currently available dedicated short-range communication spectrum, developed for vehicle communication and safety, is up to the task of guiding throngs of AVs. While communications experts, policy makers, and urban planners are assessing the big picture, software engineers grapple with how to put driving into code. Following traffic laws to a T would create a car that might be the slowest auto on the road and sit at four-way stops forever. Should the driver be able to override the car’s impeccable manners? The Google cars have settings from cautious to aggressive. Will an assertive setting be used against the driver in the case of a crash? Will third-party software be available to create programs to boost speed and performance?

“Ninety-five percent of automobile accidents are caused at least in part by driver error. If we eliminate the driver, we eliminate a lot of risks.”

SVEN BIEKER

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CHA R LE S B A RRY

—SVEN BIEKER, executive director of the Center for Automotive Research at Stanford (CARS)


Liability: Punish the Technology? Not surprisingly, technology is racing forward, but liability issues, regulation, and public opinion are slow to catch up. Tort and criminal law, safety regulations, and the insurance industry all developed around the concept of a vehicle controlled by a driver. Having the driver in the backseat taking a nap, or no driver, changes everything. Liability law is likely to discourage automakers from developing AVs, said symposium speaker Gary Marchant, Lincoln Professor of Emerging Technologies, Law and Ethics at the Sandra Day O’Connor College of Law at Arizona State University. If you take away the driver (who, in part, causes 90 percent of accidents), plaintiffs will sue the manufacturers, claiming design defects (in the words of one attorney general, “Every fender bender will be a products liability case”). The question, Marchant said, will become, “Could this design be done more safely?” This analysis, he says, is very tough on defendant car manufacturers. New technology, he said, can hurt defendant automakers. “Jurors are skeptical about novel technology and may have visceral reactions against it. We see this in the area of biotech food. Jurors ask, ‘Why are you gambling with people’s lives?’” If harm results from a product that is marketed as ensuring safety, he explained, jurors will “punish the technology.” “There are lots of products that make things safer, such as vaccines and air bags, but the manufacturers still get sued,” Marchant said. In addition, by the time cases get to trial, jurors have “hindsight bias.” “By that time,” Marchant added, “a better product may be on the road.” Marchant believes increased liability of manufacturers is a “huge barrier to technology unless we find policy ways around it,” such as limiting liability, which has been done for manufacturers of vaccines. Liability issues become even slipperier if the vehicle can toggle between autonomous and manual operation. Does liability shift when the driver takes the wheel? As lawyers tossed out worst-case scenarios, Brad Templeton, author of the blog Robocar, asked, “Will the U.S. be stupid, or will liability make it stupid? Singapore [and] China don’t have these legal problems.” SCU Law Professor Kyle Graham is not so sure that plaintiffs will fare much better in early AV lawsuits. “Early adopters of technology get less favorable treatment” in the law, he said, because they are seen as risk takers. In the early years of aviation, he continued, “if you, as a passenger, took off in bad weather, you were contributorily negligent. With new technology, there’s a tendency to blame the user.

“It may take decades for a coherent and predictable set of rules to develop,” he said. “In the meantime, uncertainty in the law will deter both innovation and lawsuits.”

Insurance: Risk and the Rules of the Road Santa Clara Law Professor Robert Peterson, director of Santa Clara Law’s Center for Insurance Law and Regulation, said he sees “a different picture.” “The driver will be the first line of liability if the car violates the rules of the road. Owners will have a nondelegable duty, just as they do in California to maintain their brakes. But if there’s a design issue, the manufacturer will be liable.” So, since driver error will be reduced with AV, drivers’ insurance rates should go “way down,” but the cost to manufacturers will go up. The buyer will pay less for insurance but more for the car. California insurers let out a collective groan when they hear the words “rate change.” Proposition 103, passed by California voters in 1988, has made the process for rate changes, up or down, Sisyphean. (See Peterson’s essay, “New Technology–Old Law: Autonomous Vehicles and California’s Insurance Framework,” on page 12). Peterson suggested that car manufacturers could become the insurers of the vehicles they produce, thereby circumventing Prop 103, which does not apply to commercial insurance policies. “They could build insurance into the cost of the car, as they do with ski bindings,” he said. Kenneth A. Manaster, SCU Law Presidential Professor of Ethics and the Common Good, offered that the legislature could cap liability at a certain amount.

Street Cred Nevada has become the first state to legalize AVs, and under Nevada law, AVs aren’t required to have a driver in control (just capable of taking the wheel). So what’s to stop you from sending one to drop off your dry cleaning or take your kids to school? And what’s to stop terrorists from stuffing an autonomous van full of explosives and programming it to their target? “Autonomous vehicles will be irresistible to hackers and geeks trying to get the cruise control lane to go haywire,” Rich Seifert said. Christopher Kitts, SCU associate professor of engineering and director of the Robotics Systems Laboratory, said, “We can’t assume benevolent use of technology but must prepare for the nefarious.” People may spoof your GPS to give spring/summer 2012 | santa clara law 9


Can you avoid a DUI by napping in your ride, or do you have to be alert and capable of taking over the controls if there is a system failure? Who will be responsible if a car violates the rules of the road? you wrong directions, he said, and hackers may even send erroneous messages that another car is about to hit you head-on at 100 miles per hour. Speaker Frank Douma, associate director of the State and Local Policy Program at Hubert Humphrey School of Public Affairs, University of Minnesota, asked whether elimination of the driver excluded all of the “intent” crimes relating to motor vehicle operation. Santa Clara Law Professor Kandis Scott asked whether someone could face criminal liability for overriding safety features. Can you avoid a DUI by napping in your ride, or do you have to be alert and capable of taking over the controls if there is a system failure? Will those who ride in AVs need driver’s licenses in case they need to take control of a car traveling nearly bumper-tobumper at 60 miles per hour? (Arguably, Kitts said, this requires more skills than currently required for a driver’s license.) Who will be responsible if a car violates the rules of the road? Santa Clara Law student and engineer Timothy Takahashi asked what would happen if software from other jurisdictions caused cars, or communication systems, to malfunction. Counsel for State Farm mentioned that a Google test car, programmed for California, made an illegal left turn in Nevada. Kidnappings by hacking into a car’s program is a concern, as are scrambled signals, computer viruses, and having your AV switch to manual when it’s chauffeuring your kindergartner to school.

If We Build It, Will They Come? Autonomous cars have a lot going for them: they offer increased safety, easier commutes, and more transportation options, especially for those who are currently unable to drive due to age or disability. But transportation specialists have learned that safety does not always trump autonomy and control: the public rejected technology that would require seat belts to be fastened before you could turn on your car. And the public, Glancy said, may be skeptical about GPS-controlled, camera-equipped cars, fearing that they could turn into surveillance devices. Speaker M. Ryan Calo of Stanford’s Center for Internet and Society, said, “People fear losing control, and they have 10 santa clara law | spring/summer 2012

a different reaction to safety risks outside their control versus inside.” They are willing to take on the risk of driving because they are used to it. And they assume that most drivers don’t want a head-on collision. Can the same be said for most computers? These fears argue in favor of taking an incremental approach to AVs. Kitts said, “The path toward automation requires giving up some control, and drivers have already begun to do this.” Some new cars already offer lane-change warnings, curve-speed warnings, and “forward collision avoidance and mitigation.” AVs may also hold promise for increased use of public transportation. People who have already surrendered control to drivers of buses and even driverless airport shuttle trains may be more receptive to AVs. But former urban planner and symposium speaker Bryant Walker Smith, who is a Stanford Law School Fellow at CARS, cautioned that making AVs safer and more desirable will not relieve congestion, alluding to the “if we build it they will come” concept that has proven true with respect to California freeways.

Road Testing The U.S. transportation bureaucracy can make or break the future of AVs. Vincent, NHTSA’s chief counsel, reported that the federal government is very interested in “making cars smarter to compensate for human mistakes,” in hope of “eliminating a huge number of traffic deaths, lost time, and economic loss.” But Vincent acknowledged that regulations “need to catch up with technology.” Before the traffic administration can impose regulations, it is required to engage in a rigorous cost-benefit analysis. “This is our biggest regulatory burden,” Vincent said. “We have to come up with the data.” Stephen Wood, assistant chief counsel at NHTSA, added that in the current economy there is “a lot of push for costbenefit analysis.” Just as in the area of insurance, in the world of safety testing, AVs are odd ducks. First off, SCU Law Professor Kerry MacIntosh said, “The technology exists in concept but not in metal and steel that we can test.” There are no manufactured AVs, only conventional cars souped up. Panelist Jon Anderson said, “To find out about safety, sooner or later you have to test the system all together, the connected cars moving together in a fleet controlled via a wireless communication system.” With the technology changing so fast, “How do you regulate a moving target?” MacIntosh asks.


Symposium attendee Dr. Steven Shladover, research engineer with U.C. Berkeley’s California PATH Program (Partners for Advanced Transportation tecHnology), questioned how the safety of autonomous vehicles can be proven relative to conventional cars. “Demonstrating safety will be a daunting task,” he said. “With conventional cars, an average of two million vehicle hours are driven between fatal crashes, and 50,000 between injury crashes. How can AVs be driven enough to provide statistically valid proof of higher safety?” And is it even technically feasible to do that well? Autonomous vehicles challenge vehicle codes, criminal law, and even international law. Under the Geneva convention, Bryant Smith said, “Every vehicle must have a driver, and every driver must be in control of the vehicle.” Several commentators expressed frustration at the slow pace of the regulatory process, which is tied to the seven years that it normally takes for auto manufacturers to introduce new cars, and expressed the concern that it is too slow for technology.

Who’s Driving, Law or Technology? Beiker, of Stanford’s CARS project, said the symposium was “a great assembly of experts in the field and a fantastic opportunity to learn from them,” and commented, “I am leaving here smarter than when I got here.” And Smith, of Stanford, called the symposium “groundbreaking; the first one this intensely legal.” It made him ask, “Will technology drive implementation or law drive technology?” SCU engineering student Mark Rasay learned that “Concerns of lawyers don’t always coincide with concerns of engineers.” Cott, the robotics engineer, said the symposium was “very worthwhile. Being a businessman and engineer and not a lawyer, I got a lot of insights.” He said he comes away with the impression that implementation of the AV on public roads will be “in incremental steps, versus big steps.” In spite of plenty of talk of obstacles to the vision of a platoon of synchronized cars smoothly gliding down freeways, many symposium participants had a sparkle in their eyes when talking of summoning their pod with their cell phone, programming it for errands, and hopping in the backseat for a relaxing commute home. For a link to more information on the symposium, including a list of speakers, visit the online version of this article at law.scu.edu/ sclaw.

Leading and Learning Law Student Organizers Reflect on the Symposium Organizing and hosting the 2012 Santa Clara Law Review Symposium afforded us a fantastic opportunity to learn from and work with an amazing group of people including legal experts and specialists in engineering and public policy. Santa Clara Law Professor Dorothy Glancy used her extensive knowledge in the field of transportation law to help put us in contact with many key experts in the field. Speakers and attendees alike reflected a deep expertise in the area of self-driving cars, and it was rewarding to see that the conference drew attendees working on autonomous vehicles for Google and Mercedes-Benz. One of the biggest things we learned from the symposium is the breadth of legal questions raised by autonomous vehicles, including liability, insurance, privacy, and communication law along with the more predictable issues related to regulation. What satisfied us the most was the growing public interest in the topic of self-driving cars and the fortuitous timing of the symposium. Nevada recently adopted a new state law to allow self-driving cars on its roads, and mainstream news and publications have run stories about Google and Stanford’s autonomous vehicles. We were thrilled that the symposium received coverage in major news outlets including The New York Times, The San Jose Mercury News, and the Sydney Morning Herald. —Santa Clara Law Students Kevin Rogan and Tijana Martinovic

Susan Vogel is a frequent contributor to Santa Clara Law. spring/summer 2012 | santa clara law 11


By ro b ert w. pet erso n , professo r , sa nta clara law

new technology old law Autonomous Vehicles and California’s Insurance Framework Autonomous or self-driving vehicles have long been a fantasy. They cruised through Woody Allen’s 1973 movie, Sleeper. Not surprisingly, California, the cradle of technological innovation, is moving the fantasy toward reality. Google, one of the primary developers of autonomous vehicles, is located in California. When faced with insuring autonomous vehicles, however, California may be locked in old technology—something like working with a 1985 Mac. Despite Woody Allen’s film, the drafters of Proposition 103 (adopted by the voters in 1988) embedded in California a regulatory system ill suited to insuring self-driving automobiles. Among other things, the proposition moved California into the group of states that regulate and require prior approval of all automobile insurance rates. Had it done only this, insuring autonomous vehicles would present only modest challenges. Proposition 103, however, did much more. It entrenched in California insurance law a number of requirements that are incompatible with a rapidly advancing technology like selfdriving vehicles. The proposition mandates the use of rating factors, which determine a vehicle owner’s premium, that make little sense when applied to self-driving vehicles. For example, Proposition 103 mandates that two of the three most heavily weighted factors for determining a policy holder’s premiums must be the driver’s safety record and number of years behind the wheel. Since the role of the driver diminishes and, perhaps, vanishes with self-driving vehicles, it makes little sense to base premiums principally on one’s driving record and years of experience.

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The proposition also mandates a 20 percent rate discount for people who qualify as “good drivers.” The good driver discount is based on the driver’s moving violations and “principally at-fault” accidents. Again, this mandated discount, which must be balanced by charging more to other drivers who do not qualify, presents serious issues when applied to vehicles that drive themselves. In addition, Proposition 103 does not permit the facile downward adjustment of rates as rapidly changing technology reduces the risks presented by autonomous vehicles. Unlike car sellers, insurers must charge all policy holders the sticker price— that is, the rate approved by the Department of Insurance. Even if the safety of automobiles rises swiftly, as one may expect with rapidly improving technology, insurers may not be able to reflect these improvements in their rates without filing a complete rate application. Rate applications are expensive and timeconsuming propositions. Making it more difficult than it needs to be to lower rates is not in the best interest of consumers. With respect to liability issues, policy makers (legislatures, courts, insurance departments) will likely face two choices. Under present law, an insurance policy covers only damages for which the insured is liable. Liability usually turns on the fault of the driver. It is unlikely a driver will be at fault when a selfdriving vehicle causes damage. If those injured are to be protected, policy makers must initially impose liability without fault either on the operator (the person who initially sets the self-driving car in motion?), or on the manufacturer on the basis that the vehicle failed to behave as it should have if a driver had been behind the wheel. Even though self-driving vehicles are likely to be much safer than human-driven cars, consumers may well bridle at being held liable without fault for the misbehavior of their automobile. This might suggest moving the initial liability to the manufacturer. Vehicles, however, are made to last. By the time of injury, manufacturers may be remote, difficult to sue, or bankrupt. This undermines the public policy that requires all drivers to either carry insurance or prove financial responsibility.


To the extent that liability, and the accompanying insurance coverage, moves to the products-liability arena, the provisions of Proposition 103 that relate to automobile policies will not apply. Manufacturers, if they choose to insure, use commercial policies outside the ambit of the proposition. Moving the primary source of compensation for injured parties to suppliers, manufacturers, and their insurers, however, presents coverage issues for innovative companies acquired by others. Often the coverage under a predecessor’s policy will not move to the acquiring entity, even though the liability for a pre-acquisition injury may. To some extent, moving coverage to manufacturers also exacerbates problems of moral hazard and adverse selection. Policy holders’ rates are based on a number of rating factors (19 in California), including the number of miles driven annually, the use (pleasure, commuting, commercial) to which the car is put, and the location of the vehicle (territory). Manufacturers have no control over many rating factors, nor do they have a convenient way to apply them. Consequently, they will simply pass to consumers the average liability cost presented by each model in their fleet of vehicles. Thus, those who drive little will pay too much; those who drive much will pay too little. Those who drive for pleasure will pay too much; those who commute or use the vehicle commercially will pay too little. Those who drive in rural areas will pay too much; those who drive in urban areas will pay too little. It is difficult to justify these cross-subsidies, and some will simply encourage overuse of the vehicle. Since insurance, like fuel, is a cost of owning a car, this may also encourage, for example, low-mileage or rural drivers to purchase more accurately rated, ordinary vehicles. If automobile insurers, rather than manufacturers, are the first line of compensation for injuries caused by defects in autonomous cars driven by faultless vehicle owners, insurers will pass the costs to the manufacturers. The manufacturers will then pass their insurance premiums back to autonomous-vehicle buyers in the cost of the car. Since insurers of manufacturers are not constrained by the unique rating factors mandated by Proposition 103, applying it to the insurers of self-driving automobiles would be a costly and fruitless exercise. These challenges would matter little if Proposition 103 were easily adjusted to meet this new technology. It is not. Unlike the 1985 Mac, one cannot simply order a new model. Although adopted by fewer than 51 percent of the voters, Proposition 103 may be amended only by another proposition

or by a two-thirds vote of the legislature, and in the latter case only when the legislation furthers the proposition’s purposes— whatever that may prove to mean. Santa Clara Law Professor Robert Peterson, director of Santa Clara Law’s Center for Insurance Law and Regulation, is an expert in insurance law. He has taught at Santa Clara Law since 1970. He earned his law degree from Stanford University, he holds a Diploma in Law from Oxford University, and he clerked for United States District Court Judge Robert F. Peckham.

Even though self-driving vehicles are likely to be much safer than humandriven cars, consumers may well bridle at being held liable without fault for the misbehavior of their automobile.

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By d orot hy glan c y, professo r , san ta clara law

It’s the Students… The Law Review’s 2012 symposium, “Legal Implications of Autonomous Vehicles,” is a perfect example of what law students at Santa Clara Law School are all about. The symposium presented an unprecedented discussion of legal issues related to a cutting-edge technology. Although autonomous vehicles exist at present only in experimental prototypes, driverless cars and trucks will soon be on streets and highways in the United States. Santa Clara Law students continue to be leaders as they grapple with the issues of the future, and they are helping to lead this law school into our next century. I had the pleasure of working with the Law Review symposium editors who put together this outstanding symposium, which was the first in the nation to focus on legal issues that affect driverless cars and other autonomous vehicles. When Kevin Rogan, one of the editors, came to my office last spring with a gleam in his eye and a great idea about exploring legal issues presented by driverless cars, I was happy to help. Working with law students on the symposium over the past year made me think back over the decades of unique events that have each been organized and presented by law student editors of Santa Clara’s Law Review, our Computer and High Technology Law Journal, and our International Law Journal. This year I had the pleasure of working with students involved in all three of the symposiums. In addition to the Santa Clara Law Review’s “Legal Implications of Autonomous Vehicles” on January 20, the Computer and High Technology Law Journal presented its symposium, “International Intellectual Property—Is the I.P. World Flat?” on January 27. Then on February 3 and 4, the Santa Clara Journal of International Law held its symposium on “Emerging Issues in International Humanitarian Law.” Such a broad array of interests and expertise is typical of Santa Clara Law School and its students. It reflects the very special law students who come to Santa Clara and who, year after year, dream up and present great educational events featuring fascinating topics such as what the legal system can and should do about driverless cars. 14 santa clara law | spring/summer 2012

After all, it was the students of Santa Clara Law who persuaded me to come to teach here in the first place. I was at Harvard University in a fellowship program when I was contacted by some friends about coming to Santa Clara to teach property, privacy, and land use law. I was already highly impressed by the Santa Clara faculty, which at that time included two alumni of the Harvard Fellows in Law and Humanities program, which I was about to complete. When I visited the campus, it was the active, inquiring law students who made Santa Clara stand out. I met law students from many backgrounds who were interested in my work on privacy and in what was at the time the new field of environmental law. Chatting about and plotting strategies for protecting privacy and preserving the fragile Bay Area environment, the law students persuaded me that Santa Clara Law was where I wanted to teach. When I moved across the country to Santa Clara in the mid-1970s, the South Bay had only recently been called Silicon Valley—so named in 1971 when Intel launched the first microprocessor, the Intel 4004. I had some experience with technology, but nothing close to what I learned from my law students. The Santa Clara Law students whom I had met the previous spring found their way into my classes on privacy law and land use law. Many new Santa Clara Law students in my property classes reflected a similar optimism and can-do attitude. Having worked on the Watergate investigations for Senator Sam J. Ervin Jr., I knew that the future would have to be unlike the past. I also could see that the remarkable law students at Santa Clara would help shape that future. One summer in the early 1990s I received a note—really a dare—from Professor Bob Peterson, then our associate dean. He had attached a flyer from the Federal Highway Administration about a competitive grant program for legal research into the interactions between privacy law and Intelligent Vehicle Highway Systems. Taking Professor Peterson up on his challenge, I found out what Intelligent Vehicle Highway Systems were by means of a DOS computer, the Mosaic web browser, and later, Netscape. I applied for and was awarded what appears to have been the first legal research grant awarded to Santa Clara Law School. My grant proposal was designed to involve as many law students as possible. Santa Clara’s law students


C H A R L E S B A R RY

The symposium presented an unprecedented discussion of legal issues related to a cutting-edge technology....Santa Clara Law students continue to be leaders as they grapple with the issues of the future, and they are helping to lead this law school into our next century. carried out research, published reports and articles, and provided the catalyst for what is still regarded as groundbreaking research. The Computer and High Technology Law Journal published a special issue (Volume 11, Issue 1) on the research. As the twenty-first century dawned, I was repeatedly asked to work on legal issues related to privacy and transportation. I kept the same policy: I agree to assist a project only if it would involve law students as direct participants. Santa Clara Law students are adept at the seemingly endless struggle to reconcile legal ideas, such as privacy, with often unpredictable technologies. As a result, our law students have always been indispensable team members in my privacy and transportation research and audits of transportation technologies. Today, adaptive cruise control has joined antilock brakes in our cars. Automatic toll payments (via FasTrak) have replaced handing coins to toll booth operators to cross Bay Area bridges. We are now looking at the legal ramifications of driverless vehicles as well as at advanced communications systems that

Santa Clara Law students Tijana Martinovic (far left) and Kevin Rogan (far right) were co-editors of the Santa Clara Law Review Symposium edition and organized the national conference on Intelligent Transportation. Greg Larson (second from left), chief of the Office of Traffic Operations for the California Department of Transportation, was one of the many in attendance. Santa Clara Law Professor Dorothy Glancy (second from right), was an adviser to the student organizers.

will permit vehicles to share safety data with other cars at great speed. These technologies were not even on the horizon when I began to teach law students at Santa Clara. It is gratifying to work with the generations of Santa Clara Law students who have led the pace as the newest of new technologies come down the road. That is why the autonomous vehicles symposium just held at Santa Clara caused me to think back about why I came here. It’s the students. Santa Clara Law Professor Dorothy Glancy is nationally known for her extensive work in the area of privacy and transportation law. Under a grant from the Federal Highway Administration of the U.S. Department of Transportation, she directed a legal research project regarding privacy and intelligent transportation systems. She has also been a consultant to the Metropolitan Transportation Commission (MTC) in the San Francisco Bay Area, worked with the U.S. Department of Transportation regarding privacy policy issues, and served as a consultant regarding legal and regulatory issues for the United States Department of Transportation’s Rural Interstate Corridor Communications Study Report to Congress (2007). Glancy has taught at Santa Clara University School of Law since 1975, with the exception of brief periods where she served as visiting professor at the University of Arizona and as assistant general counsel at the U.S. Department of Agriculture in Washington, D.C. spring/summer 2012 | santa clara law 15


by susan vo gel

A High Tech Partnership with Seoul For nearly three decades, Santa Clara Law and its strong partnerships in Korea have helped the country's legal system keep pace with the technology boom.

When Santa Clara Law Professor Philip Jimenez looks down Seoul’s broad avenues lined with skyscrapers and with five lanes of traffic rushing in each direction, he is amazed. He has seen Seoul grow from a city of 8.5 million to 14 million and rise to become the world’s thirteenth largest economy with an overwhelming emphasis on technology. Between 1983 and 2011, the country’s per capita income rose from $3,000 to $22,500. Its unemployment rate is only 3 percent. “South Korea,” he says, “is going gangbusters.” Jimenez first came to Korea in the summer of 1984 to teach a legal seminar. He could have left it at that. But the people he met kept pulling him back. “Koreans are so warm, so passionate,” he says. “Once friends, they will be lifelong friends.” Korea has become Jimenez’s home away from home, a place where he is connected, appreciated, and, among many in the legal field, revered. During the past 27 years, Jimenez has nurtured a partnership between Santa Clara Law and Korean lawyers, judges, and legal institutions that has contributed to building a new legal system for Korea—one that has kept ahead of technology, thus allowing for tremendous economic growth. This legal system now holds promise for significant advances in the areas of civil rights and equality.

Beginnings

In 1984, South Korea was just 30 years out of the civil war that took the lives of three million Koreans, turned Seoul to rubble, and arbitrarily divided families. It was still under a military dictatorship and its economic future looked bleak. One problem was its legal system. “It did not have the protections for intellectual property that foreign investors were looking for,” says Jimenez. Then a country of 39 million, South Korea had just 5,000 lawyers, according to Jimenez. For economic growth, it needed more lawyers, and those skilled in technology and international business. Law was then taught at the undergraduate level, and any college graduate could sit for the bar, but Korea’s Judicial Training Institute, which provided two years of mandatory training for all lawyers and judges, maxed out at 300 new trainees annually. Korea also needed laws protecting investors. “Korea’s legal system was one imposed on it by Japan during its 35 years of colonial rule [1910–45],” Jimenez says. “As Korea looked ahead to becoming a democratic nation, it also saw the opportunity to build a new legal system.” After teaching the summer course on U.S. legal systems in 1984, Jimenez was hooked. “I was bowled over by the commitment, passion, and drive of the lawyers, judges, and scholars. I knew they would go far,” he says. And with Santa Clara Law launching its own computer law classes, Jimenez saw overlapping interests.

1. Kyung Bok Palace, Seoul. 2. Santa Clara Law Professor Philip Jimenez, director of the Seoul Summer Abroad program. 3. Building in downtown Seoul.

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keith sutter

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courtesy phil jime n ez

c ourtesy phil jimen ez

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p hotos c ourtes y p hil jime n e z

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1. Hae-Suk Suh ’88 (a.k.a. Hazel Lee), Kyung Whan “Kenny” Ahn ’85, Yoo Suk “Shane” Hong ’99. 2. Basket craftsman, street market, in Sa Dong, Seoul. 3. Santa Clara Law Centennial Gathering and First Alumni Meeting, Seoul, October 2011. 4. Kim Moon Whan, professor and former president, Kookmin University, Seoul; with Vinita Bali, managing director, Santa Clara Law Center for Global Law and Policy. 2

That fall, Santa Clara Law hosted its first visiting Korean scholar, Hon. Choon Geun Choi, sent by the Korean Ministry of Justice to study how California courts were integrating computers into their administration. He is now the first chair of Santa Clara Law’s alumni chapter in Seoul. These early exchanges sowed valuable seeds. “In the 1980s, Professor Jimenez was the most loved instructor,” says Kyong Whan (“Kenny”) Ahn, LLB, LL.M, J.D. ’85. “Gradually, his name has become a living legend in the Korean legal profession. The name Santa Clara grew with Jimenez.”

The Programs One of the lawyers in Jimenez’s 1984 summer course was Moon Hwan Kim, LLB, LL.M, SJD, then a professor at Kookmin University, a private institution specializing in business and I.P. law. Professor Kim, says Jimenez, “has been the most influential person in the development of Santa Clara Law’s presence in Korea.” Professor Kim spent the 1986–87 academic year at Santa Clara Law as a Fulbright visiting scholar. During this time, his wife gave birth to a son, whom they named Philip Kim. In 1989, with the help of Professor Kim, Santa Clara Law established internship programs with Korean law firms. Next, in 1994, came a summer abroad program with Kookmin, which has provided Santa Clara Law students amazing opportunities. For example, in the summer of 2008, students could choose between studying human rights at Korea’s Human Rights Commission with Professor Ahn, who was its chair, or studying high technology business law with Professor Kim, then president of Kookmin University. More than 200 Santa Clara 18 santa clara law | spring/summer 2012

Law students have studied in the program, under the guidance of Professor Kim and Santa Clara Law faculty including Jimenez, Professor Jiri Toman, and Vinita Bali. Santa Clara Law students also may spend a semester abroad studying international law at Seoul National University.

Each year since 1986, Santa Clara Law has hosted one or two Korean scholars, who have shared their knowledge of Korean law with students and faculty and have learned about U.S. substantive and procedural law and legal education.

These experiences “provided critical momentum,” says Professor Ahn, in the reform of Korea’s legal system. The exchanges between Santa Clara Law and Korean students and scholars played a role in modernization in the 1990s that supported technology and economic growth. Shane Y. Hong ’99, now senior legal director and representative director of Oracle Korea Ltd., says, “In the 1990s, responding to liberalization and the opening of the general economy, Korea further streamlined its investment procedures, positively relaxed its regulations, and substantially expanded its tax reductions and exemptions in relation to foreign investment accompanied by advanced technology, in order to attract foreign investment into Korean high tech industries. SCU positively played a role in that, as it launched—under the guidance and leadership of Professor Phil Jimenez—its International Legal Study and Work Abroad


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“[Moon Hwan Kim, then President Kookmin University] is the one in charge of our program…. It’s very nice to have such an important man helping us every day with our classes…. Yesterday we went on a tour of the Korean Constitutional Court.… We were able to see the whole building, and also meet two of the justices, which was a great honor.… The president of the university is going to be in charge of setting up our internships and is very well connected, so it’s very exciting to know that we all will be getting high-profile internships.… This weekend the American professor offered to take us sailing at the local yacht club on his boat, so we should have a very fun weekend, so in the meantime everyone’s kind of resting up to prepare for it.” —Student blogger

Program.  In that regard, I am of the view that SCU was very lucky and fortunate due to impeccable timing—i.e., readiness met opportunity for SCU.” Three years ago, Santa Clara Law established a joint LL.M program with Seoul National University. Korean law students take an intensive eight-week I.P. course at Santa Clara Law, then return to Seoul National for the remainder of the year, earning their LL.Ms. Santa Clara Law students spend three weeks in Korea studying international trade and then do internships with Korean firms. Seoul National University, sometimes dubbed “the Harvard of Korea,” is one of 25 universities that, under a 2009 law supported by Ahn, abolished the undergraduate study of law and opened new three-year graduate law schools modeled after U.S. law schools. In addition, the government is phasing in a U.S.-style post–law school bar exam, which, in 2017, will replace the current bar that is open to all college graduates. Sang Jo Jong, professor of law and associate dean, Seoul National University, says that the revamping of the Korean system of legal education and bar entrance has been one of the two biggest changes over the last decade in the Korean legal system. He credits interactions with Santa Clara Law with “enabling us to learn about trends and developments in the U.S.” Jong says that exchange programs such as the I.P. LL.M “help our students to further their presence on a global scale.” They “are critical in establishing exchanges between students and scholars that are key when it comes to successfully developing ties between foreign institutions,” he says.

The second biggest change in the Korean legal system, according to Jong, has been the influx of American lawyers. Many, like Shane Hong, bring top credentials in law and technology as well as cross-cultural competence. Hong, who grew up in Los Altos, California, studied in Seoul in 1997 when he was a 2L. On a job-interviewing trip to Seoul the following year, he met his future wife, Tracy, who is Korean. With a B.A. in economics and international area studies from UCLA, a master’s of Pacific international affairs from University of California, San Diego, with a concentration in international economics, and his SCU law degree with a concentration in international and high tech law, plus five years experience negotiating contracts for Oracle, Hong was well prepared to enter practice in Korea. (Korea does not allow foreign firms; foreign lawyers practice as “foreign legal consultants.”) He was with a Korean law firm prior to joining Oracle Korea Ltd. Hong says that as a Korean-American, he has had both challenges and advantages in Korea. One challenge is that “While Caucasians may be excused from language and even cultural fluency, Korean-Americans are not,” he says. In addition, he says, “educated Koreans are expected to speak, read, and write Korean, English, and Chinese.” These expectations “have significantly raised the bar and barriers to entry here,” he says. Hong had the advantage of being exposed to Korean culture and language as a child and having worked hard to keep up his language skills as an adult. He credits Tracy, whom he married in 2005, with easing the transition to practice and life in Korea. To support other spring/summer 2012 | santa clara law 19


p hotos c ourtes y p hil jime n e z

Above: Hon. Choon Geun Choi, who was the first visiting scholar to Santa Clara Law from the Korean Ministry of Justice. He is a former judge at the Seoul District Court. He is clapping here in response to his election as chair of the Santa Clara Law Seoul Alumni group. Right, dinner in Seoul with directors, faculty, internship supervisors, and families of the Santa Clara Law Summer Program.

SCU lawyers in Korea, Hong worked with Jimenez and Dean Polden to set up the first annual alumni reunion, held in Seoul in October 2011. Besides connecting 25 alumni of SCU–Korea programs with lawyers and professors, the reunion was a “testament to SCU’s ongoing commitment to developing and strengthening its global network in and throughout Korea’s dynamic legal community,” says Hong.

Santa Clara Law has educated, through its J.D. and LL.M programs, numerous Korean attorneys who have returned to Korea to take on important, high-profile roles.

After graduating in 1985, Ahn returned to Korea to teach at Seoul National University. Prior to enrolling in Santa Clara Law, Ahn had been involved in Korea’s turbulent struggle for democracy, which culminated in 1988, with a democratic election after a quarter-century of military rule. He served as dean from 2002 to 2004, then rejoined Santa Clara Law as a visiting scholar in 2005. Ahn is a highly regarded scholar in both Korean and U.S. law and a world leader in human rights. He has been involved “directly or indirectly in most major projects of legal reform in Korea,” says Jimenez. Hae-Suk Suh, a.k.a. Hazel Lee ’88, became one of just 41 female members of the Korean parliament, the National Assembly, in 2004. She left a Seoul law firm she co-founded, Wuhyun Law P.C., where she specialized in international transactions, for the opportunity to contribute to making laws in 20 santa clara law | spring/summer 2012

the areas of telecommunications, biotech, and health care. She served on the National Assembly’s Science, Technology, Information and Telecommunications Committee; its National Policy Committee; its Special Committee on Climate Change; and its Special Committee on Korea-U.S. Fair Trade Agreement. She also served as a spokesperson of the then ruling party (Uri Party). Suh returned to private practice in 2008, and currently “heads up a corporate team for one of Seoul’s top law firms, Logos Law,” says Jimenez. Professor Kim estimates that approximately 80 Korean lawyers, visiting scholars, and students have studied or taught at Santa Clara Law.

Even without studying in Korea, Santa Clara Law students have the opportunity to develop skills in international law and cross-cultural competency through Professor Jimenez’s International Business Negotiations course.

Over Skype, Santa Clara Law students meet law students at Seoul National University. The students are given a scenario, such as a software license to negotiate, and begin emailing drafts of agreements back and forth and discussing terms over Skype. Finally, the Santa Clara Law students travel to Korea to complete the final negotiations (often funded by Santa Clara Law summer program alumni).


When you meet a person in the flesh, the element of commonality and trust is strongly enhanced. This essentials of Korean business culture were highlighted by our in-person negotiations. The importance of trust and friendship is an inseparable element of their legal and business culture and meeting our counterparts in person drove the point home. The experience through this course was phenomenal. Not only did all of the students really hone their professional legal, business, and negotiations skills, we also all had a chance to see much more of the world, broaden our horizons, and develop lasting friendships. The chance to learn about new and lucrative opportunities in a booming business environment, and the chance to make acquaintances that are not only a way into those opportunities, but also true friends, was a fantastic, eye-opening experience. The significance of the kkachi birds we saw all over Seoul National University’s campus exceeds just folklore. The students who participated in this exchange were truly blessed with good fortune and sincere new friendships on account of their journey. —Mikelis Munters, International Negotiating in South Korea, The Advocate, Santa Clara Law Student Newspaper, February, 2011

“This class got my attention,” says Santa Clara Law student Chung Park, Ph.D., ’12. “As a future patent attorney, I expect a lot of contact and cooperation with Korean patent lawyers, and I wanted to establish a human network in Korea.” A patent agent for nearly a decade with a Ph.D. from Stanford in aero/astronautical engineering, Park chose Santa Clara Law because of its strength in the I.P. field. Park says the class visit to Korea was invaluable both for successful completion of the negotiation and for establishing connections in Korea through visits to law firms and branch offices of U.S. companies. Shane Hong says that this class was “one of the SCU classes that provided the academic springboard that launched my legal career in Korea.”

Future

Korea’s booming economy is attracting some of the world’s brightest minds in law and technology, says Kenny Ahn. Santa Clara Law students are fortunate to have the opportunity to connect with Korea’s top legal scholars and practitioners. Much of the thanks, says Hong, goes to Jimenez. “Over the course of many years, Professor Jimenez has and continues to be instrumental and play a leading role in cultivating and fortifying his dynamic business and personal relationships with prominent Korean lawyers, judges, professors, and prosecutors, and this has positively contributed to SCU’s tremendous success in developing those important ties with Korea.” Professor Kim Moon Huan said, “Professor Jimenez and I have worked together for over twenty years building close ties between the

Korean legal community and Santa Clara University. It has been my great pleasure to have participated in the creation of such a program.” Each year, enrollment in SCU’s joint LL.M program grows: In 2010, eight students enrolled and in 2011, there were 11. Undoubtedly, some of the students who return to Korea will be involved in further shaping Korea’s legal system to address new demands and needs. Some changes may reflect Santa Clara values. Jimenez says that, thanks to Ahn, the legal profession is attracting more women (now 40 percent in law schools versus 2 percent 30 years ago), and, also thanks to Ahn, “inroads are being make as to the idea of ‘giving back.’” In Korea, says Jimenez, “a Confucian culture, the idea of charity is fairly new. You bear your lot in life, which might also mean not interfering with people who are having a difficult time. Kenny [Ahn] has tried to develop the idea of charity. It has to be built.” As Korea has become a democracy, demands are shifting to equal rights for foreign migrant workers, as well as for North Korean refugees, says Ahn. “Equal treatment has emerged as the most craved value in contemporary Korea.” Santa Clara Law–trained lawyers will be particularly prepared to address these challenges. “The lessons on social justice and philanthropic mind-sets are the most valuable capital I took back to Korea from Santa Clara Law,” Ahn said.

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By D o nald J . P olde n , Dea n , San ta Clara L aw

Building the

Future A Progress Report on Santa Clara Law’s Strategic Initiatives This is an exciting time at Santa Clara Law. In the past several issues of this magazine, we have discussed our Strategic Plan and its five key goals, and I am pleased to report that we continue to make significant headway toward these goals. Below is a progress report that highlights some of our major activities and achievements. Much of this progress was made possible by gifts to the Strategic Initiatives Fund, which was established to help provide financial resources needed to sustain the school’s most critical programs and to launch initiatives that will better prepare our students for the challenges of tomorrow’s workplace.

The legal profession is in the midst of a sea change. To be competitive in a tight employment market, law graduates need to be prepared to practice law from day one. In a recent report from the National Association for Law Placement (NALP), law firm associates cited the tremendous real-world value of participating in clinics and externships during law school. Santa Clara has taken the initiative to strengthen our curriculum to provide more such opportunities to our students. This semester more than 100 students are enrolled in externships with many alums acting as site supervisors. We’ve also added to our clinical offerings. In January, Caroline Chen joined the faculty as director of our new Low-Income Taxpayer Clinic. The clinic gives students hands-on experience with important tax issues while serving clients who would otherwise lack representation. We have also hired Francisco Rivera Juaristi to direct our International Human Rights Clinic, which will enroll students for the first time this fall. This new clinic is an important step in expanding our global perspective and will directly involve students with compelling human rights issues.

keith sutter

GOAL: Strengthen the educational program to meet the needs of a changing world.

GOAL: Enroll top students.

keith sutter

Competition for entering law students has never been greater. The Law School Admission Council announced a 16 percent drop in the national applicant pool, bringing the number to the lowest level in over 10 years. In response we have strengthened our off-campus recruiting efforts. We met with more than 2,000 prospective applicants at more than 80 graduate school and law fairs in 22 states. As a result we have more than 3,000 applicants for the fall entering class. They are a talented and diverse group of students. Our High Tech program, ranked sixth in the nation by U.S. News and World Report, continues to draw an exceptional group of engineers and scientists. Now we are working to encourage admitted students to enroll. We have added $750,000 to our scholarship fund to make our financial aid offers as generous as possible. We are also hosting admitted students at a number of law firm venues. This alumni law firm support is extremely valuable.

22 santa clara law | spring/summer 2012


Two outstanding young scholars will be joining our faculty in the fall. Patent scholar Brian Love will join the Santa Clara Law faculty as an assistant professor focusing on patents and intellectual property. He comes to Santa Clara from Stanford Law School, where he has been a lecturer and teaching fellow in the Law, Science, and Technology LL.M. Program. “I am incredibly excited to become a part of Santa Clara Law and the High Tech Law Institute,” Love said. “With a faculty that brings together so much expertise in intellectual property law and technology policy, a student body whose interest in IP is simply unparalleled anywhere else in the nation, and a location in the heart of Silicon Valley, Santa Clara is truly the place to be if you want to make an impact in patent law.” We are also in the process of confirming the addition of a major, nationally known environmental law scholar to our faculty. Stay tuned for this good news.

keith sutter

GOAL: Hire and retain top scholars.

Santa Clara Law Professor Allen Hammond in the classroom.

GOAL: Collaborate with our communities and constituents.

• The Seventh Annual Jerry A. Kasner Symposium, held in September, which is a very popular one-day estate planning seminar for attorneys, accountants, certified life underwriters, bank trust and investment officers, financial advisers, and other wealth planning professionals, drawing more than 475 participants. • Santa Clara Law’s new Institute for Sports Law and Ethics, a partnership of the law school, the Markkula Center for Applied Ethics at Santa Clara University, and the SCU Athletics Department, in September hosted the second annual Sports Law Symposium, “Intensifying Sports Law Issues: Concussions, Steroids, Labor Strife and the Use of Player Images.” • This year’s Katharine and George Alexander Law Prize was awarded in March to Almudena Bernabeu, attorney with the Center for Justice and Accountability (CJA), a not- Katharine and George Alexander with Almudena Bernabeu (center) for-profit human rights law firm based in San Francisco. (More information on the back cover of this issue.) • The High Tech Law Institute and the Santa Clara Computer and High Technology Law Journal hosted its symposium: “International Intellectual Property—Is the IP World Flat?” in January. • The Center for Global Law and Policy co-hosted the 2012 Santa Clara Journal of International Law Symposium, “Emerging Issues in International Humanitarian Law” in February. • The Northern California Innocence Project at Santa Clara Law held its fifth annual awards dinner, Justice for All, in March. The dinner helps raise the $1.5 million needed to run the project’s pro bono clinical program. • The Center for Social Justice and Public Service at Santa Clara Law had its 2012 conference: Race, Sexuality, and Social Justice, in April.

keith sutter

The numerous activities, conferences, and other events the law school has undertaken this year have given us the opportunity to engage our alumni, the legal community, academics from across the world, and Silicon Valley in new and meaningful ways. Highlights include:

GOAL: Develop the law school building complex to support our vision of Santa Clara Law’s future. We need to be bold about planning our future. We have contracted with Cannon Design to help us take the first steps in planning a law campus within the university campus—an integrated two-building law community that will support the skills-building and interactive teaching and learning environment that tomorrow’s lawyers need today. What we are planning is not just a building complex, but a sense of place for Santa Clara Law, a place where our community can gather and where our future can unfold. The law complex, a combination of a new building replacing Heafey Law Library and a renovated Bannan Hall, will be the heart of our community. It will appropriately reflect our prominence in Silicon Valley and the important and distinguished role our alumni have played in the community and the profession over the years. I will share more about the planning process and some architectural drawings with you in our fall issue of this magazine. To make a gift to the Law Strategic Initiatives Fund, please use the envelope included with this issue or give online at law.scu.edu/giving/.

spring/summer 2012 | santa clara law 23


SaNTa claRa laW

REUNION weekend n an c y marti n

September 8-9, 2012

1

Coming back is just the beginning! Santa Clara Law School warmly welcomes all law alumni and friends back to campus for an engaging weekend with good friends, good food, and great fun! Why? Every graduate of Santa Clara Law is a member of this outstanding community, a treasured part of the past, an important participant in the present, and a vital stakeholder in the future of this institution—your law school! To ensure we celebrate your time, then and now, Santa Clara Law invites you to be a part of a great tradition— Law Reunion Weekend.

Law Reunion Weekend offers a chance to reconnect with fellow classmates and faculty, golf, eat, enjoy CLE presentations, relax, network, eat some more, visit with faculty, taste some wine, reminisce, and eat again—all in the beautiful surroundings of this historic campus—a true jewel in Silicon Valley. By joining in on weekend activities, you demonstrate you value your experience here, encourage our current students through your participation, and demonstrate your pride. You influence the future lawyers of Santa Clara Law. Your time is precious. It is critical that we offer a terrific line-up of events and activities to make it worth your while. We invite you to share your ideas to help us plan the perfect weekend. Contact us at lawalumni@scu.edu.

2012 Law Reunion Classes 1962 | 1967 | 1972 | 1977 | 1982 | 1987 | 1992 | 1997 | 2002 | 2007 | 2012

24 santa clara law | spring/summer 2012


From the experience of the past we derive instructive lessons for the future.

n a n c y martin

2

3

n an c y martin

n a n c y marti n

JOHN QUINCY ADAMS Inaugural Address, March 4, 1825

4

Staying connected makes your law school even stronger today!

nan cy martin

Your participation is key.

5

1. Left to right: Jeff Rich ’92, ’96L; Mac McInerny ’96; Elizabeth Yee ’96; Jennifer (Leal) Gowen ’96; Julie Rankine ’96; Michael Rossi ’96; Brooke Malody Kernick ’96; and Kia Sullivan ’96; 2. Left to right: Professor Kandis Scott, Jack Woodley ’06, Chuck Bachman ’86 and his wife Margaret; 3. SCU President Michael E. Engh, S.J.; Sal Liccardo ’56, ’61L; and Dean Donald J. Polden; 4. Kathy Simas; Alex Simas ’72, ’76L; and Christopher Taylor ’76; 5. Michael Briski ’61 and Tom Weisenburger ’61.

As in any great educational institution, alumni are the backbone of this law school. Without the support we have received from graduates from the 1920s, 1930s, or 1940s, we would not be the school we are today. By staying connected to your law school, you continue to make Santa Clara Law the premier law school of Silicon Valley. By interviewing, mentoring, donating, and volunteering, your engagement makes Santa Clara Law stronger and more valued by the potential applicants, the current students, excited graduates, and the entire alumni community. Alumni pride and participation are powerful assets!

spring/summer 2012 | santa clara law 25


Flashback: Law Reunion Weekend 2011 Stand up and be counted! Thank you to all alumni and friends who participated in the Law Reunion Weekend and Centennial Celebration. Reunion Class Committees worked with the Law School to set goals for each reunion class. Reunion Weekend 2011 contributed to many areas of the Law School with support of classes from 1961, 1966, 1971, 1976, 1981, 1986, 1991, 1996, 2001, and 2006! We thank our generous alumni for their reunion gift or pledge this past year.

Class of 1976

The Dean’s Circle The Dean’s Circle honors our alumni and friends who demonstrate their commitment to Santa Clara Law by contributing $1,000 or more annually. Alumni from the past nine years will be honored for their annual contributions at the following levels: • Class of 2012: $50 • 4 years out or less: $250 • 5 – 9 years out: $500 Dean's Circle Members are indicated in bold font.

Class of 1961

Class of 1971

15 members 47% participation $225 raised

53 members 23% participation $256,386 raised

Michael Briski Bill Dok Cy Keitges Sal Liccardo Philip Price Dominic Sposeto Thomas Weisenburger

Joel Adler Anonymous Tony Bennetti Joanne Hames Ron Malone Paul Nesse Ben Reese Frederick Remer Tom Schneck Phil Sims Charles Sprigman The Honorable Donald Sullivan

Class of 1966 21 members 19% participation $2,380 raised Anonymous The Honorable James Chang Bill Glennon Roderick Reames

26 santa clara law | spring/summer 2012

252 members 23% participation $36,064 raised Anonymous (5) Michael Bays KC Bedolla John Blake Mark Bonino Doug Campion Michael Corman Matthew Crosby James Dawson John Dooling James Dutton Laurie Faulkner Marty Feldman The Honorable Robert Glusman Juan Gutierrez The Honorable Phyllis Hamilton Jon Hayman The Honorable Michael Heavey Martin Inderbitzen Dave Jewett Robert Johnson Patric Kelly Peter LaBoskey Mary Lanzone Thomas Lavelle James Lee Larry Maslyn Maria Mather Larry May Susan McCarthy John McDaniel Terry McMahon Leon Mezzetti Rick Murphy Michael Noyes Tim Patterson The Honorable Rise R. Pichon Art Plank Robert Poindexter Rick Robinson

Ruben Rodriguez Henry Roux Dale Sadler Frank Schmitz Alex Simas Jerome Smith Bruce Sousa Paul Stavolone David Sussman Christopher Taylor Ellen Turbow John Weed The Honorable Jean High Wetenkamp Robert Williams Lynne Yates-Carter

Class of 1981 254 members 18% participation $26,253 raised Douglas Allen Anonymous (3) Sofia Arizpe Mary Atwell Christine Beraldo Nancy Brewer Eduardo Calvo David Carey John Coppinger Peter Craigie Carmen Dixon Robert Dunaway Jean Eastman Loren Eddy Lee Ann Gilbert Michael Giomi Paul Giordano Jan Greben Jim Greenwald Jill Hanau Chris Healey Alan Hunter Jay Huntington Heather Hyde Mike Isaacs Michael Kearney Beth Kerttula

Walt MacDonald Lucille Mates Tom May Kimberly Mayer Richard McDonald Rob Mezzetti Bruce Reynolds The Honorable Cindi Rosse Mark Schnurle Charles Simms The Honorable Lisa Steingart Gail Suniga Diana Sutton Van Cleve Michael Thamer Jeanine Tucker The Honorable Page H. Vernon Michael Virga Peter Waite Gloria Wakayama

Class of 1986 223 members 20% participation $18,970 raised George Abel Katie Anderson Anonymous Charles Bachman Evelyn Black David Bonaccorsi Dennis Brown Rob Buechel Dante Cabanas Angelo Calfo Janice Cole-Wilson Daniel Crawford Dorian Daley Van Dang Laurie Daniels Judy Darretta Jim Gotch Jan Hales Elizabeth Harris Susan Hennesy Griffin Kate Hogan


The Honorable Peter Kerwin Andrew Kreeft Marit MacDonald James Maximoff Rosemary McCarthy The Honorable JoAnne McCracken Cheryl Mercer Mike Noyes Karen O'Kasey Lori Pegg The Honorable James F. Rigali Craig Seipel Michael Shea Richard Sipos Barbara Small Jonathan Small Virginia Stark Peter Suhr Althea Tomijima Charlene Walker-Drummer John Wesolowski Lizbeth Wesolowski Jonathan Wolf

Class of 1991 275 members 10% participation $2,230 raised Anonymous Rod Aoki Dan Beatty Marie Bechtel Molly Bigelow Enrique Colin Louise Collari Lou Dennis Gina Di Muro-Huettel Karen Durr Edward Fike Bruce Furukawa Susan Harmon Lisa Herrick Kristin Izumi-Nitao Judy Jensen Laurie Knox John Merchant Cynthia Oshiro Kathy Pacheco Elizabeth Pappy Joseph Picchi Daniel Stea Doris Suh Lisa Talley Dean Judy Tsai Irma Valencia Chu Wang Ellen Wheeler Deborah Winter

Class of 1996 230 members 17% participation $6,100 raised Tina Amodeo Anonymous (2) Stephanie Barclay Tad Bell Susan Bishop Carol Blacutt-Underwood

The Honorable Raymonda K. Burnham Jennifer Callan Stacey Capps Melissa Davidson Marc Eisenhart David Fuller Eric Gladbach Jennifer Gowen Andre Harrison Lollie Hopkins Catherine Kernick Michelle Kezirian John Kim Margo Laskowska Carlos Leet Heraclio Lopez John McGuire Mac McInerny Kristi Nevarez Daisy Nishigaya John Picone Patrick Premo Julie Rankine Jeff Rich Jed Ritchey Nancy Roberts Michael Rossi Deidree Sakai Adam Segal Christopher Sozzi Kia Sullivan Judith Szepesi Patricia Timm Perry Woodward Elizabeth Yee

Mike Rodriguez Michael Schneider Andrea Shaheen Deborah Sim Maya Skubatch Cynthia Soliman Michon Spinelli Colby Springer Angela Storey Scotty Storey Patrick Strader Ellen Wang Julia Wei Erica Wray Donald Yamagami

Jennifer Babcock Anthony Basile William Bennett Brian Brannon Devin Brown Marco Campagna Cecilia Chung Vince Cogan Karin Cogbill Jonathan Collins Jerry Crandall Rodrigo DeGuzman Alanna Dion Christopher Fernandes Allison Fletcher Gina Fornario Pamela Glazner Karen Hall Tom Howe Linh Hua Nicole Jones Lien Lac Jacquetta Lannan Monica Lee Carolina Lopez

Class of 2006 294 members 17% participation $7,283 raised Kristina Anderson Anonymous (2) Cindy Avitia

Esmeralda Lopez Bennie Mackey Courtney Minick Carlos Mino John Morgan Elizabeth Morris Lauren Nguyen Eric Nielsen Shaina Nishimoto Naresh Rajan Sueno Safley Jason Schneider Rich Seifert Philip Simpkins Suzanne Simpkins Hilary Sledge Erin Souza Roy Stanley Hilary Stevenson James Tario David Tsai Akshay Verma Kate Wilson Peter Yao

2011 Law Reunion Weekend Class Results Gift Participation

Class of 2001

Dollars

248 members 19% participation $9,750 raised

1961

47%

$225

Terry Ahearn Anonymous Clare Badaracco Jennifer Besso Sarah Birmingham Dana Brady Strader Matthew Cebrian Barrett Cohn Michaeline Correa Pam Dougherty Aaron Dutra Jay Farwell Benjamin Galloway Michael Guth Cindy Hamilton Lan Hang James Hillman Andrew Holland Jim Hoover Michael Hsu Jeffrey Jackson Juneko Jackson Colin Kemp Michele Kirsch Erin Malloy Ericka Manning Dunn Ned Mathes Reed Minkin Dawn Muszynski Barsy Adrian Percer Jon Porter Michael Post Ramon Rhymes

1966

19%

$2,380

1971

23%

$256,386

1976

23%

$36,064

1981

18%

$26,253

1986

20%

$18,970

1991

10%

$2,230

1996

17%

$6,100

2001

19%

$9,750

2006

17%

$7,283

Total Reunion Gifts

$365,641

spring/summer 2012 | santa clara law 27


Class Action

Alumni 71 Charles J. Sprigman Jr. has joined the Hoffman DiMuzio firm as of counsel. He has practiced law in Gloucester County, N.J., for 40 years. He has served as a municipal solicitor, school board attorney, prosecutor, and municipal court judge. 74 Daniel Hanley MBA

’67 is in private practice in San Jose, handling estate planning, probate, and business law. He practices with his son, Sean. Dan and his wife, Judy, live in Saratoga, and are grandparents.

77 Steven Howell retired as judge on the Butte County Superior Court, after 24 years on the bench. He was the second-longestserving judge in the county, and was presiding judge for 14 years. Mary Vigal teaches a course in Seattle

for professionals who want to grow their business with foreign buyers. In addition to being an attorney, she is a licensed real estate instructor in the area of taxation. She is a former associate professor of law at the graduate School of Taxation at Golden Gate University in San Francisco, a visiting professor at SCU’s School of Law, and a former lecturer at the graduate school of business at San Jose State University. She is a tax specialist certified by the State Bar of California.

State Laws and was named a Super Lawyer by Washington Law and Politics magazine. He also was selected in Best Lawyers in America for construction law and personal litigation. He is a fellow with the American Bar Foundation. Barbara Spector is vice mayor of the town of Los Gatos. She was first elected to the council in 2004 and served as its mayor in 2008. She is of counsel at Hoge Fenton Jones & Appel in San Jose.

78 Michael Geraghty

retired after working more than 20 years in public finance for the State of California. She held various positions, including deputy attorney general, general counsel to the state Department of Finance, and general counsel to the California Infrastructure and Economic Development Bank. In retirement, she and her husband, Bryce

was appointed as Alaska’s attorney general by Governor Sean Parnell in January. He has been an attorney at DeLisio, Moran, Geraghty & Zobel, specializing in complex litigation and trial work, including class action and antitrust. He is a commissioner with the National Conference of Commissioners on Uniform

28 santa clara law | spring/summer 2012

81 Molly Arnold has

Andrews, have sailed to Mexico in their CS 36, Abracadabra. Michael Kearney is of counsel in the Las Vegas office of Ballard Spahr, in the business and finance department. His practice focuses on complex commercial transactions, and mergers and acquisitions, with an emphasis on tax-driven transactions and licensed gaming entities.

82 Laura Casas Frier is

vice president of the board of trustees of the Foothill–De Anza Community College District. She has been on the board since 2005. She also serves on the Community College League of California’s trustee board.

83 Bernard Vogel III is

president and CEO of Silicon Valley Law Group. He specializes in corporate finance and tax planning, as the chair of the corporate and securities group.


84 Mark Intrieri B.S. ’81 is in Strathmore’s Who’s Who, worldwide edition, for his contributions and achievements in law. He is co-founder and principal of Chapman & Intrieri, where he has practiced for the past 19 years. He handles litigation in product liability, employment, business, construction, public entity, and intellectual property. He also has extensive experience in education and labor law for public entities, including conducting labor negotiations, contract administration, grievance arbitrations, and administrative hearings. He is a member of the Burlingame Elementary School District board of trustees. He lives in Burlingame with his wife, Katherine, and their four children. Allan Isbell has been selected as a member of the San Francisco chapter of the American Board of Trial Advocates. He is special counsel to Archer Norris in Walnut Creek, where he has worked since 2005. He has practiced law for over 25 years. Mary McCurdy B.S. ’81 and her husband, Kevin, have their own law firm, McCurdy & Fuller, in Menlo Park. As empty nesters, with two grown children, they enjoy traveling. 85 Susan Mauriello

has been appointed to the California Corrections Standards Authority. She has been county administrative officer for Santa Cruz County since 1989.

86 Robert Buechel is a partner with Sedgwick in its insurance practice group. With 25 years of experience,

he represents insurers and reinsurers in transactional, corporate, and regulatory matters, as well as dispute management and resolution.

87 Steven Hilst has joined

the Beverly Hills personal injury law firm of Banafsheh, Danesh & Javid, as a senior associate. He is a member of the American Board of Trial Advocates, and a master of the American Inns of Court. He is the first president of the California Supreme Court Justice Carlos Moreno Trial Practice Inn of Court, a fraternal organization that teaches trial techniques to attorneys. He serves on the board of directors of the Trojan Club of Beach Cities, and is active in his local parish, St. James Catholic Church of Redondo Beach, where he teaches adult religious education and is a Sunday lector.

88 Michael LaBianca

B.S. ’79 is vice president of human resources at Nvidia. Jill M. Pietrini is a partner in the intellectual property group in the Los Angeles office of Sheppard, Mullin, Richter & Hampton. Previously, she worked at the Manatt law firm in Los Angeles, where she chaired the firm’s intellectual property and intellectual property litigation practice group.

Settlement Program, and an arbitrator for the Washoe County District Court Annexed Arbitration Program. She recently had an article about the Inter-Tribal Court of Appeals published in Nevada Lawyer magazine.

92 Kyle Guse is a partner in the Palo Alto office of Baker Botts. He has

completed more than 100 public offerings and M&A transactions for clients, which include venture capital funds and investment banks in the life sciences, technology, and clean-tech sectors. Jonathan Klein is president of the Oakland Girls Softball League. He is a partner with Kelly, Hockel & Klein in San Francisco. He is married to

a lumni highl ights

California Lawyer Honorees Two Santa Clara Law Alumni were among the recipients of California Lawyer’s 2012 Attorneys of the Year awards: Denise M. Mingrone ’87 and Niall McCarthy ’92. Mingrone, a partner at Orrick, managed a team that obtained an $88 million verdict against Mattel in a longrunning battle over the Bratz doll line. McCarthy was lead lawyer for a whistleblower and part of a team that secured the largest False Claims Act recovery in California history—a $241 million settlement from a medical laboratory– testing company. To read more alumni news, updated weekly, visit law.scu.edu/alumni/alumni-spotlight.cfm.

89 Jill (Goldwasser)

Greiner is an appellate court justice for the InterTribal Court of Appeals, is an administrative hearing officer for the Nevada State Board of Medical Examiners, a settlement judge for the Nevada Supreme Court

Denise M. Mingrone ’87

Niall McCarthy ’92

spring/summer 2012 | santa clara law 29


C LASSACTION

Tiffany Welch Klein, and they have two daughters, Rachel, 13, and Jordan, 10. Sonya Sigler is vice president of product strategy of SFL Data, a provider of fixedprice e-discovery managed service for corporations and law firms. She has more than ten years of experience in business relationship management. She previously was in-house counsel and a business development/legal consultant to several companies.

93 Nahal Iravani-Sani is president of the Iranian American Bar Association. Braden Woods is chief of the criminal division of the San Francisco District Attorney’s Office. 96 Shelyna Brown has

been appointed as a judge on the Santa Clara County Superior Court by Governor Jerry Brown. Previously she was a public defender in San Jose. She fills a vacancy created by the retirement of Hon. Eugene Hyman ’77.

97 Narait Barinder is

vice president of intellectual property at PharmacoFore, a biopharmaceutical company in San Carlos. Previously he was a partner at Fenwick & West, where he focused on patent preparation and prosecution, developing patent portfolio strategies for companies, supporting IP litigation, mergers and acquisitions, and working with venture capital companies to fund over two dozen life sciences start-ups. Prior to becoming a lawyer, he was a research scientist at Roche and Syntex, where he developed drugs for emesis, pain, and anxiety disorders. Eric Fromme is a partner at Rutan & Tucker in Costa Mesa. He represents companies in financial distress, creditors’ committees, private equity funds, lenders, secured and unsecured creditors, and asset purchasers through the firm’s trial section and its bankruptcy/financial practices group. He has been president of the Orange County Bankruptcy Forum

and on the board of the California Bankruptcy Forum. Shawn Hartung has started San Jose Silicon Valley Tours, which will offer narrated bus tours. She was appointed as an historical and landmarks commissioner for the City of Santa Clara. Vedica Puri, a partner at Pillsbury & Levinson, co-authored two chapters on subrogration and appraisals in a book from California Continuing Education of the Bar, California Property Insurance: Law and Litigation. The book is designed to examine a first-party property insurance claim from start to finish. Andrew Romberger is vice president and general counsel at Nuron Biotech, a biopharmaceutical company in Pennsylvania. Previously, he was a partner in the corporate department of Fox Rothschild LLP.

98 Naomi Dalzell

Martinez B.S. ’94 is the managing director of Group Tasomi, S.L. She lives in Hong Kong.

99 Marwa Elzankaly was

profiled in a National Law Journal article about minority lawyers under the age of 40. Joanne Pasternack was part of a women in sports symposium, sponsored by the Stanford Graduate School of Business and the San Francisco 49ers, in November 2011. She is director of community relations and philanthropy for the 49ers, where she helps raise millions of dollars for charity. Jill Rice is assistant legal counsel at the California State Board of Education. Previously, she was deputy general counsel at the California Department of Education. From 2002 to 2007, she was a consultant for the Buck Institute for Education.

00 Michele Corvi was

included in the 2010 Northern California Super Lawyers “Rising Stars” list. This is a correction of the class note from Fall 2011. Suzanne Yost is president of the Silicon Valley Association of Realtors. She is a Los Gatos resident and broker associate with

al um n i h i ghl i gh t s

SCU Honors Two Law Alums In April, the SCU Alumni Association honored Dori Rose Inda J.D. ’00 and Nick Livak ’59 JD ’62 with special awards for their service to others. Inda received the 2012 Ignatian Award in recognition of her work at the Watsonville Law Center (WLC), which she founded in 2002 after being inspired by her work at Santa Clara Law’s East San Jose Community Law Center (now the Katharine and George Alexander Community Law Center). Inda is the executive director of the WLC, which has served thousands of low-income and immigrant families on the Central Coast. Livak received the 2012 Louis I. Bannan, S.J. Award in honor of his more than 50 years of service to SCU. Livak is a trustee on the Bronco Bench, has served on his SCU reunion committee, and has helped with law school fundraising, the New Student Calling Program, and more. For more information, see www.scu.edu/alumni/alumni-events/awards-dinner.cfm.

30 santa clara law | spring/summer 2012


Alain Pinel Realtors. She was named Realtor of the year in 2006 by the Santa Cruz Association of Realtors.

Arena-Camarillo Law, P.C., as well as at the Gwinnett County Sexual Assault Center.

02 Kristina Lawson is a partner at Manatt, Phelps & Phillips. She is a member of the real estate and land use practice group. Previously, she was at Miller Starr Regalia.

09 Garren Michael

05 Justas Gerindson is a

10 Autumn Talbott co-

senior associate at the San Francisco office of Novak Druce + Quigg. He was previously at Fliesler Meyer. His practice focuses on patent prosecution, re-examinations, litigation support, contracts, opinions, licensing, and counseling clients on mechanical devices, computer software, and business methods.

06

Pamela Glazner has started a law firm with Maureen Pettibone Ryan in Redwood City. The firm focuses on individual and business litigation, and consumer and civil rights. David Tsai has been named by the National LGBT Bar Association as one of their 2011 Best LGBT Lawyers under 40. He was also named as 2010 Barrister of the Year by the Santa Clara County Bar Association. He is an associate at Perkins Coie in San Francisco, where his practice focuses on trade secret and patent litigation.

08 Erica Arena-Camarillo

and her husband, Paul, were married in 2009. They are parents of Ava Rose, who was born on Nov. 17, 2011. The family lives in Georgia. Paul is a senior assistant district attorney in Fulton County, and Erica works at

Pedemonte married Jessica Baracker on Sept. 17, 2011. He is an attorney for Southern Oregon Public Defenders in Medford, Ore. His wife is also an attorney.

authored an article with Art Gemmell, international law scholar at Santa Clara Law’s Center for Global Law and Policy. The article, “The Lex Mercatoria-Redux,” will be published in the Transnational Dispute Management Journal.

In Memoriam 49 Frank Domenichini,

Sept. 15, 2011. He is survived by his wife, Mary. William Earle Watson, March 28, 2011. He served in the U.S. Navy during World War II. He received a bachelor’s degree from the University of California, Berkeley, in 1942. He practiced law for more than 50 years, and was a member of the San Jose Rotary Club. Survivors include his wife, Elizabeth, three children, seven grandchildren, and one great-grandson.

60 Frederick B. Maguire, B.S. ’57, May 29, 2010.

68 Lawrence Howard

Bakken Jr., Dec. 24, 2011. Born in Chicago, he received bachelor’s and master’s degrees from the University of Minnesota. He

The Santa Clara Law Alumni Directory is back! The Law Alumni Office is excited to partner with PCI, an alumni information publication company, to produce the latest directory for our law school. With over 11,000 Santa Clara Law Alumni, this concise book will provide contact information on our graduates by • alphabet • region • legal specialty You will be contacted by PCI in the next few months to help us update our records in order to provide you with a valuable tool for staying connected with your fellow Santa Clara Law Alumni. By staying connected, you will discover opportunities to • network • attend events • volunteer • earn CLE credits • mentor • support scholarships More information will be coming your way soon. Thank you in advance for your support on this project!

attended graduate school at U.C. Berkeley. After law school, he worked in private practice in Hayward, Calif. He then worked at Lawrence Livermore National Laboratory for 22 years. He was active in community groups, and was appointed to the Alameda County Consumer Affairs Council. He is survived by his wife, Evelyn, and one daughter.

72 James Jerome

Herman, Aug. 31, 2011. He earned degrees from Ripon College, MIT, the University of Wisconsin, and SCU. At Lockheed in Sunnyvale, he worked on top-secret proj-

ects, such as Deep Quest and the space shuttle, and was an expert in guidance and control systems. He enjoyed skiing and doing volunteer work, especially for Habitat for Humanity. He is survived by his wife, Lynn, three children, five grandchildren, three great-grandsons, and two sisters.

Send us your news! Email your news to lawalumni@scu.edu or send to Law Alumni Office, Santa Clara University, 500 El Camino Real, Santa Clara, CA 95053.

spring/summer 2012 | santa clara law 31


C L ASSACTION

73 Robert Fitzgerald,

Nov. 18, 2011. He received a bachelor’s in accounting from the University of Portland in 1968. He began his law career at his father’s firm, eventually becoming a partner in Fitzgerald & Fitzgerald. He practiced family law in Santa Rosa for 35 years, and was bar association president in 1978. He enjoyed coaching softball, basketball, vacationing at Lake Shasta, and skiing. He is survived by two siblings, three children, and six grandchildren.

75 Edward Bergo Jr., Oct. 17, 2009. A graduate of Stanford University, he worked for Aparicios in San Jose for many years. He is survived by a son, Justin, his parents, and two siblings. Thomas More Cracraft, Sept. 1, 2011. He grew up in Minneapolis, Minn., graduating from the University of Minnesota with a degree in mathematics. He served in the U.S. Marines and the U.S. Peace Corps. He worked as a systems analyst and as a technology consultant. His most successful company was Technology

Development Corporation, which grew to include several hundred employees. He finished his career in San Francisco as CFO for the game company University Games. He is survived by his wife, Suzanne, three children, three grandchildren, and three siblings. Neil Mackenzie Schwartz, Nov. 14, 2011. He grew up in Riverside and Fullerton, Calif., before attending Stanford University as an undergraduate. He practiced law in the Bay Area and Orange County for over twenty years, then became a certified meeting planner. He worked for Alder Droz in Laguna Beach and for the California Credit Union League. He is survived by his wife, Jane, and one sister.

77 James Rhine, Oct. 6,

2010.

Richard F. Lee, January 9, 2012. He graduated summa cum laude from Santa Clara Law and began his career at Schramm & Raddue in Santa Barbara. He practiced most recently at Reicker, Pfau, Pyle and McRoy until his medical retirement in 2010. He

held leadership roles in many civic organizations including the Legal Aid Foundation of Santa Barbara County, the Santa Barbara County Bar Association, the Santa Barbara Barristers' Club, and Santa Barbara County Teen Court. Survivors include his wife, Diana Jessup, four children, one brother, one sister, and six grandchildren.

78 Lillian Herlich Nerenberg, Nov. 2, 2011. She started law school at age 54, attending while continuing her 25-year career teaching political science at West Valley College. A charter member of the California State Bar dues-exempt contingent, she spent her entire legal career doing pro bono work for Senior Adult Legal Assistance. She was co-author of a high school text, American Government in Action. She was an honorary lifetime member of the American Association of University Women, and a charter member of Los Gatos League of Women Voters. Survivors include four children, nine grandchildren, and two brothers.

In Memoriam | Ed Taylor (1939–2012)

82 Thomas M. Small, Jan. 26, 2011.

83 Hon. Stephen Gibbs, Sept. 20, 2011. Born in San Francisco, he graduated from the State University of New York at New Paltz in 1977 with a degree in geography. He was in a car accident in 1978 and became a quadriplegic. He was articles editor on the Law Review while at Santa Clara, and had two articles published there. He worked as a solo practitioner for 18 years. In 2001, he became an administrative law judge with the California Unemployment Board of Appeals. He retired in 2008. Survivors include his partner, Elizabeth Johnson, his mother, six brothers, and a sister. 97 Paula Anne Farrell,

Nov. 22, 2011. She graduated from St. Luke’s Nursing School in San Francisco in 1977, and then worked at the emergency room of San Francisco General Hospital. She was also a career Kaiser Permanente nurse and a legal nurse. She received a degree in English literature from Sonoma State University in 1992. She loved dogs and horses. Survivors include her mother, Patricia Gilbert, and four siblings.

03 Michelle (Stella) Co-founder of Blakely, Sokoloff, Taylor & Zafman, Edwin H. Taylor taught Patent Office Practice for many years at Santa Clara Law, and he also served as a member of Santa Clara Law’s Board of Visitors, the Dean’s High Tech Advisory Council, and the High Tech Advisory Board. “He had a deep and sustaining interest in Santa Clara Law and in our mission of educating outstanding patent lawyers for Silicon Valley law firms and companies, and he was generous with his time,” said Dean Donald Polden. “He was a leader in Silicon Valley, and his expertise and involvement were tremendous assets to the law school.”  For more on Taylor, see bstz.com/ed_taylor.

32 santa clara law | spring/summer 2012

Moskalik, Nov. 24, 2011. She was born in Petaluma, Calif., and graduated from Rancho Cotati High School. Her career in contracts law spanned more than 20 years. Most recently she was an attorney with Paradigm Counsel. Survivors include her husband, Scott, and parents, Marie and Richard Stella.


C LOSINGARGUMENTS

Playing With Fire The Supreme Court Considers Health Care By bradley w. joondeph, professor, santa clara law

A

s everyone else following the health care cases recently argued at the Supreme Court, I have no clear idea how the justices are going to rule. But it sure seemed to me—as it did to most observers—that the Court’s five Republican appointees are leaning toward invalidating the Affordable Care Act’s minimum essential coverage provision, the provision that requires most Americans to acquire health insurance by January 2014. This was somewhat surprising. More surprising, though, was that several of the justices also seemed inclined to strike down the entire ACA, all 2,700 pages of it, on the ground that the minimum coverage provision was inseverable. This would be extraordinary. It would mark the first time in almost eighty years that the Court invalidated such a significant federal law as exceeding Congress’s enumerated powers. It would also be the first time since the 1930s that the Court used the unconstitutionality of a law’s single provision to strike down a hugely important statute in its entirety. The justices’ apparent willingness to take such steps suggests they may not fully appreciate the political stakes. A decision to wash away the most significant federal statute in a generation, rendered in the heat of a presidential campaign, could unleash a political firestorm—one that might significantly threaten the stature of the Supreme Court. Some justices have proclaimed that partisan political pressures have no impact on their decisions; Justices Thomas and Breyer, for instance, have recently stated as much. And it certainly would be troubling if the Court were

to take ordinary politics into account in resolving the questions coming before it. The role of the Court, in large measure, is to stand outside politics and render decisions based purely on legal principle. But this is no ordinary case, and the Court cannot afford to blithely ignore how the Nation’s reaction to its decision might harm its long-term institutional standing. As Alexander Hamilton wrote in The Federalist, the judiciary possesses “neither force nor will, but merely judgment.” And the Court’s ability to serve its assigned role in our constitutional system—as a critical check on the political process—depends on the justices’ capacity to show the Nation that it is exercising principled, reasoned judgment. In short, the justices must maintain the Nation’s faith that their decisions are grounded in legal principle rather than partisan politics. For if Americans see the Court as no more than another partisan body, the justices’ capacity to persuade persons of diverse ideological hues will be lost. So will, in important respects, our conception of the rule of law. With respect to the ACA, an ideologically predictable five-to-four decision— especially to invalidate the act in its entirety—runs the risk of creating precisely such an impression. That risk is substantially heightened because of some of the Court’s other recent work—specifically, its five-to-four decisions in Citizens United and Bush v. Gore. The notion that the Court’s decisions could be explained in purely partisan terms would plainly be misguided, but that is beside the point. The impression itself poses serious dangers. Moreover, the constitutionality of the ACA is only one of several high-profile, highly ideological disputes heading the Court’s way. In the next few years, the justices will also be confronting Arizona’s

controversial immigration law (S.B. 1070), the University of Texas’s race-based undergraduate admissions program, a sequel to Citizens United, and the constitutionality of the Voting Rights Act, the Defense of Marriage Act, and California’s Proposition 8. A steady stream of five-tofour decisions along predictable ideological lines—led by a decision to invalidate the ACA—could prove toxic. This is not just sour grapes from those who substantively disagree with an increasingly conservative Court. Chief Justice Roberts has eloquently voiced the same concern. In his numerous paeans to Chief Justice John Marshall, Roberts has recognized that the Court must attend to its institutional stature with great care. If the justices are careless with the Court’s political capital, Roberts has warned, the Court will “lose its credibility and legitimacy as an institution.” Indeed, as the Court itself has recognized, its power lies “in its legitimacy, a product of substance and perception that shows itself in the people’s acceptance of the Judiciary as fit to determine what the Nation’s law means and to declare what it demands.” The justices must not just be principled and nonpartisan. They must appear so as well. Ultimately, the public’s faith in the justices as neutral arbiters of law is essential to the Court’s stature, the independence of the federal judiciary, and even the rule of law. When that faith is diminished, something incredibly precious is lost—something far more important than the outcome of any one case. I fear that the justices are playing with fire. For the sake of the Court, I sure hope they are careful. Note: This essay appeared on CNN.com. spring/summer 2012 | santa clara law 33


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2012 Katharine & George Alexander Law Prize Awarded to Almudena Bernabeu “Almudena Bernabeu is a lawyer who has distinguished herself by her selfless service to others through her prosecution of human rights abusers. She leads by example in her steadfast commitment to the rule of law and puts the vindication of her clients’ rights before her personal needs. At Santa Clara, our strong ties with the Jesuits in El Salvador make us especially grateful for Ms. Bernabeu’s work in bringing justice in the massacre of six Jesuit priests, their cook, and her daughter at the Universidad Centroamericana in 1989. With dedication and determination in a court of law, Ms. Bernabeu brings to light the truth of injustices around the world.” —Santa Clara University President Michael E. Engh, S.J. Above, Bernabeu stands with survivors of the Genocide in Guatemala. For more information, see law.scu.edu/alexanderprize.


Santa Clara Law Magazine Spring 2012