Innovating Legal Education

A year ago, in late August 2013, I posted a brief bit about my hopes for the coming year from the standpoint of innovation in legal education.  (Here is the link.)  By design, I was somewhat melodramatic and apocalyptic about what needed to be done substantively, and (perhaps) not forthcoming enough, and too procedural, about what I was expecting at my own law school, having been charged with chairing a local task force on what should be done there.

I did promise an update regarding what the task force did.  So here I am again.

There is, unfortunately, not a lot of news that I can report.  Our task force worked hard over the last academic year, harder than many faculty committees in my experience, talking not only with faculty colleagues but also with current students, alumni, the law school’s staff, members of the bench and bar, and folks in legal tech and legal services industries.  We did what I suspect is being done at many other law schools:  We researched what’s happening at other law schools, in other countries, and in other genres of professional and undergraduate education.  We studied opportunities at our university and elsewhere in our region.  We assembled a long and pretty comprehensive report — not a strategic plan by name, but a strategic plan in many other respects — and delivered it to the Dean and the faculty.  It’s not ambitious enough by some measures and too ambitious by many others.  I wish that I should share it here, but it’s not my report to share.  We will see, as the coming year(s) unfold, whether and how our recommendations are adopted.  The task force was aware of the work of the ABA in the accreditation area, and some of our recommendations anticipated the recently-announced changes regarding experiential education and student learning outcomes.  So, at minimum, there will be developments on those fronts.

The general question is still on the table, only very incompletely answered:  Amid changes in the legal profession, changes in what’s now called the legal services industry, emergence and evolution of a multi-faceted legal tech industry, and concern among law school faculty, graduates, students, and prospective students regarding the adequacy, appropriateness, and affordability of legal education — what can and should any particular law school do?  What can and should any particular faculty member do?

If there are lessons here, they are reminders that change is hard, at a collective or institutional level, and change in academic institutions is especially hard.  It’s hard even if a group of committed faculty members want to see change, see an urgent need for change, and lay on the table a broad range of specific things to change.  Change in legal education can’t really be understood or approached without thinking carefully (and at the same time, creatively) about change in undergraduate education, and other professional education — domains that taught our task force a lot of good things — as well as change in the worlds of professional services.

My experience last year did motivate me  to move more aggressively in my own courses to make some changes that I had been thinking about for some time.  Small changes, to be sure, but first steps and all that.  This Fall, I’m teaching Contracts (resuming a course that I taught for years but gave up back in 2007) and Trademark Law.  I will not require that students purchase a casebook; the primary readings will be free for downloading (and printing, and editing, annotating, etc.).  There will be substantial amounts of graded writing during the semester (something that I’ve been doing for a while in my upper-level courses) and relatively little emphasis on end-of-semester final exams.  There will be an increased emphasis on mandatory group work.  I will continue my existing practice in upper-level courses of banning student electronics in the classroom, but I’ll extend that to my first-year class.  I’ve been talking with our career services staff about how to make explicit, for the benefit of current students, connections between how and what I teach and the skills and knowledge that our students need to have in order to succeed in the profession.  I’ve been spreading the word among my former students — our alumni — about these modest changes and about hopes for more, and where appropriate incorporating their feedback into my methods.  There is more on my plate than that, but for now, at least with respect to what goes on in my classrooms, that’s enough.

Perhaps in a year’s time, I’ll have more news.  Good luck to everyone on the start of the new academic year.

 

 

 

 

 

 

 

 

IPSC and the Future of Legal Scholarship

Last week I attended the 14th edition of the “Intellectual Property Scholars Conference,” or IPSC. I came back to Pittsburgh inspired, challenged, and a little … well, down. Did I see into the scholarly soul of the discipline(s) that we call intellectual property law? Into the future of legal scholarship in general? If so, I came away with mixed feelings. I’ve been away from this blog; now back to the blog I go.

To set the stage a bit, consider this. IPSC is a working papers conference. It was launched in 2001 by senior faculty at Cardozo, DePaul, and Berkeley (then Boalt Hall) law schools as a way for a small number of seniors to give thoughtful feedback to an equally small number of emerging juniors. That feedback constituted partly comments on papers; it also constituted broader mentorship built into the structure of the conference and the relationships that emerged from it.

IPSC changes. Each year, the conference host tweaks the format a bit. The conference rotation has expanded to include Stanford as well as the original three host schools. But the biggest change is that the conference has steadily expanded in size. The original two conferences were really workshops; all attendees fit into a single (large) conference room. The 2014 edition featured more than 200 attendees and more than 150 paper presentations. There were talks by senior scholars as well as by grad students, postdocs, and junior faculty members, and at times there were as many as six concurrent tracks. Rebecca Tushnet provided a nearly real-time account of many of the papers that she heard, but even her record of events, amazing as it is, portrays only a small portion of the IPSC landscape. I probably heard 20 papers, read abstracts for all 150+ and downloaded a fair number of them for later consumption, and interacted socially with several dozen people. Everyone and everything else was essentially invisible to me. On the printed program, I saw the names of many friends and colleagues who I never saw in the flesh.

What do we make of this?

First, the good news:

1/ Legal scholarship is going global in a big way.

For the first time in my memory, a not insignificant number of presenters at IPSC were scholars from outside the US, including Asia (China in particular) and South America as well as Canada and Europe. (Several of the presenters based at European and UK universities are natives of South American and Asian countries.) Much of the research on offer from our non-US colleagues was/is of a type and style – conceptual and/or empirical — that only a few years ago we might have stereotyped as “American” in contrast with a stereotypically duller, less ambitious European doctrinalism.

Question: Is there any conceivable sense in which this is a bad thing?

Next, the bad news:

2/ Plus ça change.

Several years ago I came back from an earlier edition of IPSC discouraged by what I felt was a lack of historical sensitivity among my IP colleagues, particularly (but not entirely) the junior ones. I wrote about that on the blog, here, and later tried to address the problem in part with a series of posts that I titled “Lost Classics of IP.” I’ve now combined and reshaped those posts into a paper that I posted to SSRN recently.

My views have not changed.

Question: Is there anything meaningful that can be done about this?

Finally, the so-so news:

3/ The purpose(s) of working papers conferences.

IP scholars joke that IPSC has become a cocktail party, or a form of intellectual speed dating (or both; choose your own metaphor). And they’re right about the metaphors, though the metaphors do more than punch up a a joke. In truth, the conference is modestly useful at introducing junior scholars to some senior scholars and to the norms of IP scholarship. It is very useful at enabling mid-level and senior scholars to meet and hang out with their friends. It is not useful at all with respect to its original purpose, which is feedback and mentorship. Mentorship is a high-bandwidth activity, which means that it doesn’t scale, least of all across six concurrent tracks and 20 minutes per presentation (including Q&A).

For years, IP cultivated a reputation as the welcoming discipline. The field suffered from little of the hierarchy and sense of exclusion that (I hear from friends) defines other fields. Junior people were (on the whole) welcomed, supported, mentored, and encouraged. They became (on the whole) welcoming, supportive, mentoring, encouraging senior people. And the scholarship that came out of the field was, in my view and on the whole, as ambitious, thoughtful, and challenging as the scholarship in any legal domain.

I look at the junior people in the field today, and I wonder: At 20 minutes a presentation, how welcoming and supportive can the field really be? Sure, virtually everyone who asks gets a presentation slot, which guarantees access to junior scholars. But that also means that effectively anyone who asks gets a presentation slot. If mentoring is happening, where and when is it happening? (In small, more private and less-IP-specific settings, if it’s happening at all.) How will today’s junior scholars behave when (if) they become senior scholars? And what kind of scholarship is this dynamic producing? On that last question, my tentative answer is this: IP is supporting a lot of “normal science” research that is asking, or re-asking, versions of questions that have been asked before.

Remember, this is the FIRST TIME that anyone has asked these important questions, although they are virtually indistinguishable from questions that people senior to me, who signal what’s important in the field and what’s safe to argue, have asked many times before.

Question: Is IP eating its seed corn? Put differently: Is IP, which is relatively young by scholarly standards, maturing into a typical academic discipline, with hierarchies and implicit norms and “right” and “wrong” sorts of scholarship?

4/ What about our students?

Last but by no means least, I came away as never before from IPSC wondering whether any of the scholarship on display has any bearing on how we teach our students. Lots of presentations had explicit or implicit “hooks” with respect to public policy and advocacy; on the whole, that’s a good thing. But very few presentations suggested to me, even implicitly, that the scholarship at hand either emerged from the challenges of teaching law students today or would affect how we teach law students today. This may be what troubled me most about my experience last week: the sense that I was wearing a “scholar’s hat” that was detached from my “ordinary” (but changing) role as a law teacher, and more detached than it has been for a long time, considering the “normal science” style of scholarship that I witnessed. The legal profession and law schools are confronting some extraordinary challenges. There was little sense at IPSC that those challenges are affecting scholarly practice.

Questions: Is this distinction, between modes of legal scholarship and modes of law teaching and the practices of the legal profession, sustainable? If it’s not, what synthesis (or more likely, syntheses) of scholarship and teaching are likely to take its place?

The Supreme Court Considers Google Street View

Google Street View carAll of the interest in the Supreme Court tomorrow is likely to be focused on Hobby Lobby and, to a lesser extent, Harris v. Quinn. But I’ll be watching something that happens before either of those decisions is announced. I’ll be looking to see if the Supreme Court granted cert in the StreetView case. I hope the answer is no.

The StreetView case — Google v. Joffe — is one that I’ve blogged extensively about over the past year. See Part I, Part II; see also my coverage of the Ninth Circuit opinion, Google’s petition for rehearing, and the filing of Google’s cert. petition.) Briefly, Google’s StreetView cars intercepted the contents of transmissions from residential wi-fi routers whose owners had not turned on encryption. A number of class actions have been filed claiming that the interceptions were violations of the federal Wiretap Act. Google moved to dismiss them, arguing that radio communications (like wi-fi) basically have to be encrypted to be protected by the Wiretap Act. The district court and the Ninth Circuit disagreed, holding that the exception Google points to applies only to traditional AM/FM radio broadcasts.

Although I disagree with the Ninth Circuit’s reasoning and would find it professionally advantageous if the Supreme Court decided to take the case, I hope it denies cert. Here’s why. Continue reading

Is Hachette Being Hoisted by Its Own DRM Petard?

oldbooks2.JPGRebecca Tushnet points to this column by Cory Doctorow arguing that Hachette is being held hostage in its fight with Amazon over e-book versions of its books because of its “single-minded insistence on DRM”: “It’s likely that every Hachette ebook ever sold has been locked with some company’s proprietary DRM, and therein lies the rub.” Doctorow argues that because of the DMCA Hachette can no longer get access, or authorize others to get access to, its own books:

Under US law (the 1998 Digital Millennium Copyright Act) and its global counterparts (such as the EUCD), only the company that put the DRM on a copyrighted work can remove it. Although you can learn how to remove Amazon’s DRM with literally a single, three-word search, it is nevertheless illegal to do so, unless you’re Amazon. So while it’s technical child’s play to release a Hachette app that converts your Kindle library to work with Apple’s Ibooks or Google’s Play Store, such a move is illegal.

It is an own-goal masterstroke.

Everyone loves irony, but I can’t figure out how to make Doctorow’s argument work. First, I can’t figure out what the anticircumvention problem would be. Second, I can’t figure out why Hachette wouldn’t be able to provide other distributors with e-book versions of its books. Continue reading

Oracle v. Google Reversed – Why Framing Matters

Two years to the day since my last blog post on this subject, the Federal Circuit has reversed Judge Alsup’s ruling that the Java API (the list of function and variable -a/k/a parameter- names) is uncopyrightable. The Federal Circuit held that the structure, sequence, and organization of the APIs renders them sufficiently original and non-functional to be copyrightable. As such, the case is remanded to determine whether there is fair use by Google in using them wholesale to make Android. For more background, see my prior post.

The problem with this ruling is twofold. First, it is surely correct. Second, it is surely wrong. Why is it correct? Because structure, sequence, and organization can be creative. This has long been true, and well should be. I won’t relitigate that here, but holding that these APIs were simply not copyrightable was a stretch in the 9th Circuit, and the Federal Circuit is correct to say so.

Why is it wrong? Because Google should surely be privileged to do what it did without having to resort to fair use. The court says: “We disagree with Google’s suggestion that Sony and Sega created an ‘interoperability exception’ to copyrightability.”

It is here that framing is important. The court’s statement is accurate; we don’t get rid of copyrightability just to allow interoperability. But Sega is crystal clear that we do allow interoperability reuse: “To the extent that a work is functional or factual, it may be copied,Baker v. Selden, as may those expressive elements of the work that ‘must necessarily be used as incident to’ expression of the underlying ideas, functional concepts, or facts….” This is not the merger doctrine that the court applied, but rather a defense to infringement.

In short, this should have been an abstraction-filtration-comparison case, and the Federal Circuit makes clear that Judge Alsup did not perform that analysis. The appeals court also makes clear that if the APIs are directly taken, you can jump directly to filtration, but this does not mean you need to hold the APIs uncopyrightable in order to filter them out in the infringement analysis. Instead, Oracle gets its copyright, and Google gets interoperability. It is here that the appellate decision misses the boat.

I hate to be critical after the fact, but this case should never have gone to the jury. It should have been decided as a non-infringement summary judgment case pre-trial where Oracle kept its copyright but infringement was denied as a matter of law due to functional reuse. Maybe that would have been reversed, too, but at least the framing would have been right to better support affirmance.

May 12, 2014 update: Two commenters have gone opposite ways on Sega, so I thought I would expand that discussion a bit:

Sega is about intermediate copying fair use, yes. But that intermediate copying was to get to the underlying interoperability. And I quote the key sentence from Sega above – even if that functionality is bound up with expression (as it is in this case), we still consider that a privileged use (and thus a worthy end to intermediate copying, which is not a privileged use).

Now, in this case, we don’t need to get to the intermediate copying part because the interoperability information was published. But the privileged use that allowed the intermediate copying didn’t suddenly go away simply because Google didn’t have to reverse engineer to expose it. So, so say Sega doesn’t apply because it is a fair use case completely misunderstands Sega. The fair use there was not about fair use of the APIs. That use was allowed with a simple hand wave. The fair use was about copying the whole program to get to those APIs, something that is not relevant here. So sending this case back for a fair use determination is odd.

That said, Sega pretty clearly makes the use a defense to infringement, rather than a 102(b) ruling that there can be no copyright.