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?

Are You Missing the Market, Aspen?

Professors are in an uproar over Aspen Publisher’s new rules for textbooks. In short, if you thought you could buy a book and do what you wanted after that (i.e. sell it used), Aspen wants to change that system. Instead of a true, unbundled digital option, it has a system where students buy both a physical textbook and a “lifetime” digital book. Too bad as there is a market opportunity that they might be missing. On the legal doctrine front, Josh Blackman called it out. James Grimmelmann jumped on the bashing. Rebecca Tushnet has poked at the offer too. But where is the market here? Is there a way Aspen could make this shift work well? If so, would authors (i.e., professors with deals with Aspen) like it? And why not use dollars to tell Aspen what to do? Assign a different casebook from a competitor (FYI there is a free one out there, see below). There are some specific issues that illustrate sme of the problems in this space.

First, what about time and artificial editions? Rebecca nails this point by calling out that some areas of law (e.g., IP) change so fast that new editions and coverage issues make staying up with casebooks a problem. In those areas, does first sale do much work? Maybe it does much work in the few years between editions. But after that, the text is somewhat obsolete. Dusting of an IP text in digital or hardcopy from the 1990s would be dangerous except for fundamentals (and maybe even for those). Still, there are now seven editions for the Dukeminier casebook. Are the updates every four or so years needed? Even in other areas, are authors updating to add value or to create a new text that undercuts the used market? Do publishers lean on authors to issue new editions when there is not much to say as a market window or version control? If so, the publisher is setting up the demand for secondary or alternate markets that cut out the publisher.

So is this system functioning? As I noted before, the OpenStax system offers high quality texts for free and in a modular way. That means sections are updated for free and folks can assemble material as they wish. Law does not have that yet. The folks at Semaphore Press are close however. That press happens to publish a property text by Steve Semeraro (disclosure I am friends with the folks at Semaphore and introduced them to Steve). It is not quite OpenStax, but it is an interesting model with a shareware feel.

Second, what about the cost to write and update a text? I know it takes tons of time. Whether RA’s do some work or it is all by the professors, the time to write a good casebook is real. I am grateful for the good books. A great teacher’s manual is also a huge help. For new teachers and even experienced, a rich manual provides insights about how the author(s) teach the material and where they see the comments to be headed. One can then choose to follow that lead or modify. But is the price point for texts (as many noted often close to $200) sustainable? Would the market collapse if the cost dropped to low or no charge? OpenStax indicates that the system could shift, and a small crowd of experts would be able to offer an excellent, up-to-date text. And as Pam Samuelson and many others have noted, scholarly works pay off in reputation. So having the most assigned text (or specific chapter on a subject) may stimulate just enough competition for reputation to get great texts (or chapters) but not a glut of roughly the same material from many high-priced publishers.

Third, what about that market opportunity? Would a publisher that offered A) a true digital copy for $40, $50, or even a $100 take share from others? B) What if the publisher said rent the hard copy for a reduced price (again it should be low)? Some might hate that idea as a matter of doctrine but that market is emerging on Amazon and at least lets the student know what is going on (though I think a rental model poses some issues for libraries in that no one should say that libraries should just be rental depots that is another debate for another time).

So Apsen, if you’d like to survive I am betting your authors would like that too. But I am also betting they want to work with you to offer much better solutions than the ones you have right now. The life time digital edition and the high price insult the authors and the marketplace. I think others will find ways to route around you. But you could take your current position and parlay it for the future. If not, I think you may have pushed the law text market to Semaphore or OpenStax. Hmm, maybe Aspen should stay with its model after all.

Does Apple Reject That Education Has To Train Skills?

Apple’s Your Verse ad campaign poses an odd and maybe cynical offer to us. Don’t pay attention to the call of law, business, or medicine. Be a poet. Be a creator. Contribute your verse. What are we on American Idol? Or as Monty Python put it maybe all we want to do is sing. Apple panders to the look at me right now world. The film is about free thinkers. Maybe that is the same as being a poet. And as Kevin J.H Dettmar argues at The Atlantic, the film is “a terrible defense of the humanities.” He points out that the film celebrates enthusiasm over any critical thought” “Keating doesn’t finally give his students anything in its place besides a kind of vague enthusiasm.”

Having gone to a prep school, I am less upset by the film than Dettmar. But then I may project my experience onto the film’s gaps. Even before prep school I went to a grade school where the boring “Latin—Agricolam, Agricola, Agricolae, Agricolarum, Agricolis, Agricolas, Agrilcolis” was part of the curriculum in eighth grade. That teacher happened to have done his own translation of Caesar’s Road to Gaul. He’d re-enact charges of legions and evoke swords. In high school we had many inspiring teachers. They kicked our butts for fake enthusiasm. Larry McMillin once asked me a question about Shaw’s Man and Superman. I came up with some ramble. He said “That’s not Shaw. That’s just Desai,” in his Southern gentlemen’s voice that somehow had scorn yet support. Support. For what? He called me out but made me see that I could do more. How?

Rigor. To the waste bin with brownie points for showing up. Be gone empty claims of it’s good, because I said it. Learn the fundamentals. Master the material. As Phillipe Nonet said to my class in college when someone started a sentence with “I think”, “That you think it, does not matter. It matters what it says.”

It turns out that free thinking is much more difficult than Keating realizes. The rigor of learning the fundamentals allows us to be liberated. Liberal arts are about freedom and how we are unmoored from habit. But knowing the foundations is how you might see where they may not operate anymore. So sure contribute your verse. But if you want it to be a good one, let alone a great one, let alone one that might allow you to eat, put in the work. Grab everything you can from college and post-graduate schools. Contrary to recent pushes from big law (note that with 30-505 margins the big firms can absorb training costs), law schools training people to think in sharp and critical ways are providing an education that connects to the law and much more. But that requires diligence, drudgery, and didactic moments. Those happen to turn into gifts of knowledge, skill, and the ability to learn on your own. At that point, your verse might be worth something.

Intellectual Property Scholars Conference (IPSC) 2014 Announced

The Berkeley Center for Law and Technology at the UC Berkeley School of Law will host the 14th Annual Intellectual Property Scholars Conference on August 7th and 8th, 2014.  The conference is co-sponsored by the Berkeley Center for Law and Technology, UC Berkeley School of Law; the Intellectual Property Program, Benjamin N. Cardozo School of Law at Yeshiva University; the Center for Intellectual Property Law and Information Technology, DePaul University College of Law; and the Stanford Program in Law, Science & Technology, Stanford Law School.

The IP Scholars Conference brings together intellectual property scholars to present their works-in-progress and to listen and discuss others’ works.  The format of the conference is designed to facilitate open discussion and to help scholars hone their ideas. Papers presented should be works-in-progress that can benefit from the input provided by IPSC attendees.

Requests to Present:
  Requests to present should be submitted electronically no later than May 5, 2014, by submitting an abstract of the work-in-progress at http://ipscholars.org.  Every effort will be made to accommodate full-time IP scholars who submit a request by the deadline.  Requests from research fellows, non-U.S. researchers, and practicing attorneys as well as late submissions will be considered to the extent that time and space permit.

Presentation Decisions: Final decisions on requests to present will be made by May 30, 2014, and requestors will be notified at that time.  A wait-list will be created in order to allow some speakers to be added in the event that selected presenters are unable to attend.

Final abstracts for inclusion in the conference binder and papers for posting on the conference website will be due July 25, 2014.

Requests to Attend: BCLT welcomes attendance by full-time academics who would like to participate in discussions but do not plan to present their own work. Requests to attend should be registered at http://ipscholars.org.

For further details, see the conference announcement posted to http://madisonian.net/conferences/2014/02/14/intellectual-property-scholars-conference-2014-at-berkeley/