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?

6 thoughts on “IPSC and the Future of Legal Scholarship

  1. I would be reluctant to generalize from what is happening at a particular IP conference to what is happening in the field. The two have different life cycles. IPSC has become a major umbrella conference; much of the mentorship and workshopping takes place at smaller conferences like JSIP, the IP Scholars Roundtable, and the Tri-State Region IP Workshop. I would try to separate your critique of the field from the norms of what one does at IPSC.

  2. Perhaps, though if the mentoring at those “satellite” conferences is effective, then I’d expect to see at least some payoff at IPSC. I’ve been to JSIP, whose format I like a lot, and the Roundtable. I agree that those are scaled to better mentoring. But does it “take”?

  3. Nice summary. It was good to see you in person, in passing, for about 15 seconds… 🙂

    I don’t attend too many of the mentoring workshops. Maybe I should (should have)! But your comments reflect those I heard from many others, that many of the presentations were simply rehashes of the same theories that have been discussed in the last 20 years of writing in certain topics.

    The great irony is that as there are more people there is more volume, but less fertile fruit to cultivate. Sounds like a commons problem to me…

  4. I’ve said it before, but a lot of the issues raised here — mentoring, methods, and the lack of a sense of the history of the discipline — are due to the lack of a Ph.D. program in law, or anything like it. Particularly the lack of knowledge of the literature. It’s very hard to come up to speed — and harder every passing year — without something like the process of constructing a comprehensive exam reading list, and no one prepares for exams they don’t have to take.

  5. Thanks for a thoughtful and insightful post, Mike. You summarize many of my own mixed feelings about IPSC much more articulately and thoroughly than I possibly could have. I first went to IPSC in 2006, during my first year as a tenure-track IP prof in the US and continued to go pretty much every year till the last couple of years or so. I was one of the fortunate ones who found very good friends and mentors at/through IPSC – but you’re right that actual mentorship doesn’t happen there for various reasons. It takes regular contact with those few more senior people who have expressed an interest in your work – whether that be by emails, exchange of papers, in-person chats or at smaller conferences (and preferably all of the above).

    As IPSC has grown even bigger – and as more and more junior scholars see it as their “ticket” to getting noticed by more senior scholars – I wonder if that also means more pressure (possibly self-inflicted) to only present works that would garner interest from a bigger audience (or get one noticed), rather than perhaps deal with more “risky” themes or less appealing, narrower topics.

    Another consequence of IPSC’s prominence and success seems to me to be a greater social divide in the sense that there’s more of the “let me look at your badge to see which school you’re from and/or if you’re someone I’ve earmarked as wanting to talk to”. I suppose that was inevitable given the increasing competitiveness of the hiring market, but for me it was a pretty severe contrast to my own experiences, and makes it more difficult to make real connections with people who may not be famous or at prestigious schools, but who might be excellent mentors nonetheless.

    That’s one reason why when I was still at UNH Law, Susan Richey and I organized the IP Scholars Boot Camp. We asked senior IP professors to nominate junior/entry level people they knew, whether VAPs or tenure-track and we were very pleased that Mike, Mary Lafrance, Peter Yu and other senior colleagues who had been our own mentors took the time to come to spend two days with the junior folks. I’m no longer in a position to do the same again, but hopefully the Boot Camp idea – or something similar – will be taken up by other schools or senior professors so that it can offer an additional/alternative forum for the sort of mentorship Mike mentions.

    Finally, I was really happy to see more international and foreign scholars at IPSC this year as well … I hope it means more dialogue with and awareness from a hitherto-largely American-focused community.

  6. I second what Bruce said, and want to thank Mike for taking the time to put together the “Lost Classics” list to help people like me who want to fill in the gaps in our education.

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