universityofsan diego SCHOOL OF LAW advocate Kevin Cole Named Dean of the University of San Diego School of Law 23:1 SUMMER 2006 BOARD OF VISITORS Chair advocate James C. Krause ’75 Elaine Alexander EDITOR G. Edward Arledge ’73 Angie Jensen Richard A. Bayer ’83 Theodore Boutrous ’87 WRITERS Alan Brubaker ’76 Kristin Essner ’06 Cathryn Campbell George Decker Elizabeth Carson ALUMNI ASSOCIATION Vincent Lapietra ’07 John Carson ’88 BOARD OF DIRECTORS Anna A. Long ’06 (LL.M.) Henry Casden ’70 Professor David McGowan Kevin Cole* President Professor Michael Rappaport Steven Cologne ’84 Dennis J. Doucette ’86 Sarah Severson Dennis Doucette ’86* Brent Wakefield Sergio Feria ’82 President Elect Michael Ferrara Jr. ’72 Jeffrey T. Thomas ’82 CONTRIBUTORS Thompson Fetter ’67 Kabu Adodoadji ’06 John Forry Vice President Abigail Gurney David Geerdes The Honorable Robert J. Trentacosta ’79 Trevin Hartwell The Honorable David Gill JoEllen Kay Susan Gonick ’86 Immediate Past President Ruth Levor J. Ernesto Grijalva ’84 Denise M. Hickey ’94 Kay S. Manansala Daniel Grindle ’73 Mary Moreno John R. Henkel ’77 Angeline Anastasopoulos (SBA) Teresa O’Rourke Denise Hickey ’94* James R. Ballard ’95 Anne Tuite The Honorable Richard D. Huffman Laura M. Berend ’75 Ashley Wood Peter Hughes Craig P. Cherney ’96 Steven Hunsicker ’75 Kevin Cole (ex officio) PHOTOGRAPHERS Michael Kaplan ’72 Richard Doren ’86 Brigid Ann Bennett Jennifer Kearns Julie Dunne ’92 Leslie K. Bruce Martin Kruming Michel Duquella ’94 George Decker Alex Landon ’71 Chad Fuller ’97 Gates Photography The Honorable Melinda Lasater ’73 Stephen Halsey ’78 Angie Jensen Stanley Legro John (Jay) A. Jurata, Jr. ’00 Pablo Mason The Honorable Frederic Link ’68 Michael B. Kelly Brent Wakefield The Honorable Judith McConnell Lynne R. Lasry ’79 John McGrory ’81 Marty Lorenzo ’96 DESIGN Gerald McMahon ’64 Patrick W. Martin ’92 Patera Design LLC Edwin Meese Robert Y. Nagata ’70 James Mulvaney Hallen Rosner ’83 COVER PHOTO The Honorable Gilbert Nares ’67 Tom Sohn ’02 Pablo Mason Virginia C. Nelson ’79 The Honorable Timothy R. Walsh ’91 David A. Niddrie ’79 The Honorable Thomas J. Whelan ’65 The Advocate is published Peter K. Nunez ’70 semi-annually by the University The Honorable Christine V. Pate ’69 of San Diego School of Law Communications Department. Regina Petty Donald Rez Please address all The Honorable Lynn Schenk ’70 correspondence to: Gary W. Schons ’76 The Advocate University of San Diego Alan Schulman School of Law Thomas E. Sharkey ’59 5998 Alcalá Park Abby B. Silverman ’79 San Diego, CA 92110-2492 Robert L. Simmons Phone: (619) 260-4207 E-mail: [email protected] The Honorable Kenneth So Michael T. Thorsnes ’68 © 2006 USD School of Law John Wallner ’93 Michael J. Weaver ’73 Colin W. Wied The Honorable Howard Wiener *ex-officio member contents Features 9 Law Alumni Weekend A look back at 2005 and what’s in store for 2006. 13 USD Legal Clinics Celebrate Their 35th Anniversary Three decades of helping the San Diego 10 community one client at a time. No Stranger to USD— Kevin Cole is named the 11th Dean of the USD School of Law. Faculty Essays Departments 2 MESSAGE FROM THE DEAN 18 Looking Back, Moving Forward Judge Breyer’s Active Liberty 3 CAMPUS BRIEFS By Mike Rappaport, Professor of Law An update on the law school’s achievements and programs 24 F ACULTY FOOTNOTES News about faculty members’ 20 publications and presentations The Continuing 30 CLASS ACTION Convergence Catch up with the personal and of Patent Misuse and professional lives of alumni Antitrust Doctrine 43 ACADEMIC YEAR IN REVIEW By David McGowan, School events, workshops and Professor of Law faculty colloquia SPECIAL SECTION 46 ENDOWMENT CAMPAIGN REPORT Acknowledging gifts and pledge 47 commitments from Alumni and friends Honor Roll 65 ON THE DOCKET Thanking those who gave to the School of Law A calendar of law school events and activities in the 2004–2005 fiscal year. message from the dean Looking Back, Moving Forward ulty was ranked 22nd nationally in friends, and making the case for that overall scholarly quality in a survey of support will be an important focus dur- leading law academics and 23rd nation- ing the coming years. I need look no ally in a study measuring how often further back than the past year to feel faculty work is cited by others. In the confident about the future in this re- twelve-month period ending in July gard. The report on the capital cam- 2006, the faculty ranked 19th nation- paign for the law school, which ally in the number of times their papers appears later in this issue, shows the have been downloaded from the Social willingness of our alumni and friends to Science Research Network. support the school’s ambitions. While The rising recognition of the faculty we currently lag behind our competi- has occurred in conjunction with the tors in the size of our endowment, we his message reaches you at about rising credentials of our entering stu- can confidently look forward to the the time that I welcome the fall dents. When I joined the faculty, we day when the resources available to the 2006 incoming class to campus; received 2,450 applications for our school make our past a mere prologue the first class I welcome as dean entering class; in the last few years, to the even greater successes ahead. T of the law school. Times like this the number has consistently exceeded both summon memories and inspire 5,000 and once exceeded 6,000. The plans. Let me share some of each. increasing popularity of the school has, When I joined the faculty in the fall as one might expect, brought an in- 1987 semester, Sheldon Krantz was crease in the statistical profile of the dean. He was followed by Grant incoming class. KEVIN COLE Morris (as interim dean), Kristine Looking forward, my goal is to con- DEAN AND PROFESSOR OF LAW Strachan, Grant Morris (as interim tinue the upward trends from which dean again) and Daniel Rodriguez. I have benefited during my career at Under the leadership of these deans, USD. We should continue to remain USD evolved. Before I arrived on the attractive to gifted scholars who enjoy picturesque mesa on which USD sits, (and excel at) the process of educating the law school had a solid reputation new lawyers. And we should make for providing rigorous, high-quality USD even more attractive to prospec- preparation for new lawyers. tive students. We have recently aug- Since my arrival, however, I have mented the resources available to our had the great pleasure of watching Career Services Office to enable our the school grow in national reputation. new Assistant Dean of Career Services, Faculty members hired during my Cara Mitnick, to make the changes time here—as well as those who came needed to improve our services to stu- before—have done much to raise dents in this vital area, and we are like- the scholarly profile of the school. wise increasing other student services. Recently in the Leiter Law School USD’s future success will depend on Rankings, out of the 194 faculties at our ability to increase financial support ABA-accredited law schools, our fac- for the school from alumni and other 2 O 23:1 / USD LAW ADVOCATE campus briefs 2006 Paul A. McLennon, Sr. Honors Moot Court Competition Wood, Burns and Huffman Serve as Judges for USD’s Most Prestigious Intramural Moot Court Competition n March 3, Katherine Payerle District Court of Appeal for the State After deliberation, the panel ruled in and Kirsten Widner got the of California, who is also an adjunct favor of the petitioner and went on to O chance to hone their advo- faculty member of the University praise both finalists. “In the real world cacy skills in front of an imposing of San Diego School of Law. this is precisely the experience you panel of three judges in the final round The case, Chaker v. Crogan, addresses will have. The two of you are welcome of the 2006 Paul A. McLennon, Sr., whether or not California Penal anytime in our courts,” said Judge Honors Moot Court Competition. Code section 148.6 violates the First Wood. “I want to compliment you on Held at the Joan B. Kroc Institute for Amendment. Convicted for filing a how nimble you were. Both of you Peace & Justice on the USD campus, knowingly false complaint of peace listened very carefully and worked to this year’s competition drew more par- officer misconduct in violation of answer questions.” ticipants than ever. More than 200 section 148.6, Chaker filed a habeas Established through the generosity of members of the bar were needed to corpus petition in federal court chal- USD law Professor Michael Devitt and assist with the competition. lenging the constitutionality of section his family in honor of longtime family The Honorable Diane P. Wood 148.6. He argued that section 148.6 friend, attorney and naval aviator Paul of the U.S. Court of Appeals for the violates the First Amendment because A. McLennon, Sr., the McLennon Seventh Circuit presided over a panel it only punishes lies that are critical Honors Moot Court Competition pro- that included U.S. District Court of the government. vides an opportunity for students to de- Judge Larry Alan Burns of the In the final round, Widner repre- velop their brief writing and advocacy Southern District of California and sented the state of California and skills and to test these skills in an open, Justice Richard Huffman of the Fourth Payerle represented the petitioner. rigorous competition.