Videos in conjunction with my advertising law class

 In this pandemic year, I'm experimenting with short videos as part of the pre-class materials. They generally elaborate on a point to set up class discussion. I'm sharing them because, as Tom Lehrer says, they might prove useful to some of you someday perhaps in a somewhat bizarre set of circumstances.

Reading list: Pam Samuelson on legal writing

Pamela Samuelson, Good Legal Writing: of Orwell and WindowPanes 

From the archives: Excellent short piece on legal writing, for students and other legal writers of all kinds.  In itself, interesting to see how a groundbreaking female academic framed things in 1984, including the advice not to use “she” as the generic third person singular pronoun; it was “too cute.”

For law students: Notre Dame summer IP program

Details on the Notre Dame “Get a Leg Up in IP” program this summer.

Announcing the Open Source Property Casebook

Straight from Jeremy Sheff:

On behalf of myself and my co-authors (Steve Clowney, James Grimmelmann, Mike Grynberg, and Rebecca Tushnet), I am pleased to announce the immediate availability of Open-Source Property, a completely free casebook for the 1L Property Law course. We would like to ask you to share this announcement with readers of the PropertyProf Blog, and spread the word among your colleagues who teach Property Law.

Open-Source Property is a comprehensive, high-quality teaching resource with substantial advantages over commercial casebooks:

- It’s Free. Open-Source Property is distributed completely free online, in multiple formats.

- It’s Easy to Use. Open-Source Property comes with teacher’s manuals and slides. We also encourage adopters to submit their own teaching materials to be shared on the instructors page of our website. (The instructors page is password protected; please email me  from your institutional email account to request a password).

- It’s Flexible. You can choose to download a complete casebook that has already been tested in the field by the authors. Or you can mix, match, and edit chapters, right in Microsoft Word, to achieve your preferred coverage profile. Our individual chapters cover all the basics, from Finders to Future Interests to Takings, as well as more specialized topics such as Intellectual Property and Property Rights in Human Beings.

- It’s Open-Source. Open-Source Property is licensed under a CC-BY-NC 4.0 license. You are free to copy it, use it, redistribute it, and edit it under the terms of the non-commercial license. In fact, we encourage adopters to submit their own contributions and their own builds of the casebook to be posted on the casebook website.

We hope you will visit us at www.opensourceproperty.org to check out Open-Source Property and consider adopting it as your casebook. If you do, please let us know! And if you have any questions or comments regarding the casebook, or if you just need some encouragement and support to make the switch, feel free to email us at feedback@opensourceproperty.org, or to find me at the AALS Annual Meeting in San Francisco next month. We are here to make it easy for you to do your students and yourself a favor by moving to a free, open-source course text.

In the meantime, you can watch for updates by following us on Twitter  or liking us on Facebook.

As a personal note, I enjoyed writing the zoning chapter a lot.  It's a bit unusual--it focuses on the history of St. Louis and its suburbs as a way of telling the story of zoning; it includes several actual zoning codes and plans of various types, to give students a sense of what they're like; and it is deeply concerned with explaining how, in America, property law is racially inflected.  Feedback is welcome, on this or any other part of the casebook.

Georgetown Law Launches New Institute for Technology Law and Policy

From our website:

Building on its growing expertise in the field, Georgetown Law today announced the launch of the Georgetown Institute for Technology Law and Policy. The Institute will be led by Alexandra Reeve Givens, who most recently served as chief counsel for IP and Antitrust on the Senate Judiciary Committee, working for senior Democrat Senator Patrick Leahy (D-Vt)(L’64).

"As technology transforms the law, the economy, government, and every aspect of daily life, Georgetown Law is uniquely positioned to advance the conversation on technology law and public policy,” said Georgetown Law Dean William M. Treanor. “Leveraging our presence in Washington, D.C., and the deep expertise of our full-time and adjunct faculty, the Institute will provide an important forum for the thought leaders and lawmakers shaping technology policy today.”

The Institute will convene conferences and workshops on new and emerging technology issues and create opportunities for law students to gain deep exposure in the field. The Institute will soon begin a Technology Law & Policy Scholars program for students to gain immersive experience in technology policy. The Institute will also launch the Georgetown Technology Review this fall.

“Now is an essential time for nuanced, thoughtful conversation about how policymakers should respond to the opportunities and challenges created by new technologies,” said Givens. “I am thrilled to help lead this effort at Georgetown Law.”

The Institute is the latest of a number of recent Georgetown Law initiatives focused on the impact of technology. Georgetown’s Center on Privacy and Technology, launched in 2014, recently released a groundbreaking report on the use of facial recognition by law enforcement nationwide. The Communications and Technology clinic, part of Georgetown’s long-standing Institute for Public Representation, recently filed a complaint with the Federal Communications Commission relating to police use of a “stingray” device to intercept cell phone calls. Georgetown Law is also home to a stellar Center on National Security and the Law, sponsoring events related to technology and cybersecurity.

The new Institute for Technology Law and Policy will bolster Georgetown Law’s curricular offerings, which include more than 50 courses such as Coding for Lawyers, classes on cybersecurity and intellectual property, and a privacy law and technology practicum that pairs Georgetown Law students with engineering students from the Massachusetts Institute of Technology. Georgetown’s Iron Tech Lawyer Competition trains students to use technology as a tool to help users navigate the justice system or apply for legal aid. 

“Training lawyers who are proficient in technology law and policy has become a top priority of Georgetown Law,” Treanor said.

“Our students come to D.C. to get a front-row seat witnessing the highest levels of policymaking,” Givens said. “I look forward to sharing that experience with students in the fast-evolving world of technology policy.” 

In her role with the Senate Judiciary Committee, Givens advised Senator Leahy and developed legislative strategy on matters including patent reform, federal trade secrets legislation, net neutrality, First Amendment issues surrounding online speech, access to medicines, and oversight of mergers and antitrust policy. She previously served as a litigator at Cravath, Swaine & Moore in New York City. 

The Institute can be found online at: www.law.georgetown.edu/go/tech-institute.

For more information, please contact mediarelations@law.georgetown.edu.

New article on self-publishing, with Eric Goldman

Eric Goldman and I have written Self-Publishing an Electronic Casebook Benefited Our Readers--And Us, in the Washington Journal of Law, Technology & Arts.

Sneak peek at the new edition of Advertising & Marketing Law: Cases and Materials

Eric Goldman has put the Right of Publicity chapter from the new edition of our casebook up at SSRN.  More to come soon!

Lifetime piling up: Aspen and new anti-first sale business models

When I teach property, I generally don’t teach much IP because I’ve found I get frustrated with the necessary quickness of any coverage.  But they’ve come for my casebook, and so I must respond.  Aspen is making the next edition of Dukeminier, Krier et al. into a tied deal, purporting to provide a physical copy that must be returned at the end of the semester (thus trying to defeat first sale, even though this type of servitude isn’t historically allowed for chattels and I disagree with the apparent idea that this is an enforceable condition) while providing “lifetime” access to an electronic version. 

Paul Levy suggests a boycott is in order.  I agree that I’m not about to require my students to pay this money for a book they won’t be able to resell plus non-credible “lifetime” access. The internet is littered with the corpses of websites that were supposed to give you access to your paid-for, DRMed content forever, including websites backed by some very big names.  I’m pretty lazy and don’t like to switch casebooks, but I guess I have to if this policy persists.  Law school is expensive; so is giving up the first sale doctrine.

James Grimmelmann has also started a Change.org petition against this policy.

Georgetown Law is hiring clinical faculty in IP/technology law

Clinical Faculty Position at Georgetown Law

Georgetown Law invites applicants for a full-time tenure-track or tenured clinical faculty appointment.  At least five years of practice experience and two years of clinical teaching experience are strongly preferred. Georgetown is especially interested in candidates who wish to teach a transactional or regulatory clinic with an intellectual property or other technology focus. We are also interested in clinicians who wish to teach human rights, public policy, federal legislation, or school-to-prison clinics. Notwithstanding these priorities, we welcome applicants in other substantive areas. 

Applicants should have a record of excellence in practice and a teaching and academic record that demonstrates the potential for superb clinical teaching and scholarly achievement. Georgetown Law is an equal opportunity employer committed to a diverse faculty, staff, and student body. We encourage applications from women, minorities, persons with disabilities, and others whose background, experience, and viewpoints contribute to the diversity of our institution.

Interested persons should send a resume, references, and subject area preferences to hennink at law.georgetown.edu.

AALS speed mentoring

I'll be participating in the AALS speed mentoring program for new law professors this coming Sunday, co-sponsored by the sections on Women in Legal Education & New Law Professors.  It's at  Grand Ballroom A, First Floor, Hilton New Orleans Riverside, starting at 8:30 am.  I'm looking forward to meeting new people!

Goldman & Tushnet on Advertising and Marketing Law

With Eric Goldman, I’m thrilled to announce the release of our casebook:  Advertising & Marketing Law: Cases and Materials.  We are publishing the book as a DRM-free PDF download at Scribd for only $10.  As Eric says, it’s “870 pages and nearly 400,000 words of advertising and marketing law nirvana—a massive 40MB file chock full of photos (especially depicting the ad copy at issue), edited cases, explanatory narrative, tables/charts, diagrams and more.  You’ll laugh, you’ll cry, and you may even want to do a jig.”  The detailed table of contents is available at Scribd.  You can buy it for $10, which we think is a bargain.

If you want to get a sense of the entire book, we’ve posted a free sample chapter (Chapter 12 about publicity rights and endorsements) to SSRN.  Full chapter list:

Chapter 0: Preface

Chapter 1: Overview

Chapter 2: What is an Advertisement?

Chapter 3: False Advertising Overview

Chapter 4: Deception

Chapter 5: Omissions and Disclosures

Chapter 6: Special Topics in Competitor Lawsuits

Chapter 7: Other Business Torts

Chapter 8: False Advertising Practice and Remedies

Chapter 9: Copyrights

Chapter 10: Brand Protection and Usage

Chapter 11: Competitive Restrictions

Chapter 12: Featuring People in Ads

Chapter 13: Privacy

Chapter 14: Promotions

Chapter 15: The Advertising Industry Ecosystem—Intermediaries and Their Regulation

Chapter 16: Case Studies

Eric has a number of things to say about the book and about teaching advertising and marketing law.  Short version: every law school should have this course; many lawyers—especially those representing small clients—need to know this material; it’s also a good “horizontal” course showing students how various areas of law overlap and fit together and helping them think about the big picture.  For professors (including adjuncts), it’s also just fun, and we will provide plenty of supporting materials, including notes/slides/rudimentary teaching manual/the IP Teaching Resources Database, chock full of examples for use in teaching.  Anyone interested in teaching the course should contact Eric or me.

There's a fair use angle, right?

McSweeney's: Lines from The Princess Bride that Double as Comments on Freshman Composition Papers.

Guest post on teaching the mortgage crisis

I have a guest post up at PropertyProf Blog, which kindly allowed me to vent a little about teaching the mortgage crisis with Dukeminier et al.

Addendum to entry-level advice

Many candidates these days send out emails/packets directly to schools of interest to them as well as using AALS. That's fine and can pay off, but if you do it electronically, please name your files appropriately. I like you better when I can just save the file lastname_resume.doc, or FIRSTNAME LASTNAME resume.pdf or any other choice that makes sense than when I have to remember to manually rename your resume.docx file to match your name, which I might even misspell! I think you can do the same thing with the AALS resume system too.

Music copyright: some empirics

Jamie Lund's paper for IPSC is about empirically testing ordinary listeners' reactions to allegedly infringing musical compositions and how it turns out that the listeners are actually reacting to performance similarities, not compositional similarities. In connection with this research, Lund has a blog with the excerpts used in the research--which I expect will be very useful for teaching students as well!

Advice for aspiring academics

Put your works up on SSRN or BePress! Make it easy on us on the hiring committees. It's easy goodwill. (I grumble now when I have to get beyond some password wall to read work, because I'm spoiled, and if I have to debate with myself whether to request your work from you to read it, I probably won't, which is not the result you want.) This goes for accepted drafts or even your job talk paper, at least; I don't usually post unpublished drafts--but I'm not seeking a tenure-track position.

Contrary opinions welcome.

Teaching Materials Network

Still grading, but I wanted to mention the Teaching Materials Network, a service of the AALS New Law Professors section hosted by Stetson. It's a database of professors willing to share their notes, syllabi, etc. for various law courses, and should be a great boon to new teachers (coupled in the case of IP and advertising law, of course, with the IP Teaching Resources Database maintained by your humble correspondent).

I get knocked down: Women publishing law review notes

I read an interesting article in the Journal of Legal Education (unfortunately not online) about the underrepresentation, relative to law school enrollment and law review participation, of women publishing notes on the main journals of the top law schools. The author theorizes that women are more alienated from law school than men. Writing a note may seem like one more awful hurdle in a system that has proved less meaningful than they hoped. I was particularly interested in statistics from a study of the Yale Law Journal revealing that one source of the disparity was that women were only one-third as likely as men to resubmit their proposed notes after an initial rejection; given that most notes are only published after resubmission, this was a big deal. That brought back some powerful memories of my experience, which I share in the hope of encouraging more students—especially women—to try the publication process.

True confession time: I submitted a proposed note every time I was eligible to do so. Eight times. Alert readers will infer, correctly, that I was rejected seven times. This was, to put it mildly, a bit painful, especially as at least one of my classmates did better each time. I tried three different pieces, the first of which was deeply flawed and will, fortunately for me, never see the light of day. The second was Legal Fictions, ultimately published elsewhere after several failures. The third was Rules of Engagement, which I submitted three times—meaning two resubmissions.

Why did I keep trying? Well, basically I was too stubborn to quit, especially the last time, when I was pretty convinced I’d just be rejected again, but couldn’t stomach the thought of letting that last opportunity pass without even trying. (On the way to the all-night copy shop to print out that last submission, I heard Chumbawamba’s Tubthumping for the first time; make of that what you will.) And also I was ambitious: a note has multiple benefits for things like clerkships and jobs both academic and non-, and even once I had a publication forthcoming in another journal, I knew publication in my home journal was optimal.

As difficult as going through the submission process eight times was, I think it’s fair to say that both published pieces were successful, and I’m glad I wrote them and revised them and revised them again. Legal Fictions became the starting point for my scholarship on fanworks and copyright, and Rules of Engagement won the faculty prize for best student note and convinced a state supreme court to reject the modern rule governing ownership of engagement rings after a broken engagement, both matters of great satisfaction to me. And I really did learn a lot about how to write in the process.

Publication isn’t for everyone, but at the same time it’s distressing to see women’s participation drop off so sharply, even women at top law schools who are already on law review. Given the internal and external benefits of writing a note, I’d like to see a more representative set of writers. I’m not sure about solutions, though—Notes Development editors might help encourage more people to submit; so could greater transparency about the benefits of writing a note. But I keep coming back to that three-times disparity in resubmission rates. How can we convince students, particularly women, that revision and resubmission is likely to be part of the process, rather than a final referendum on merit? Rejection is awful, and yet you improve your odds by trying multiple times (and in multiple fora). Gritting your teeth and trying again is a skill worth having, especially for a lawyer. Maybe all student notes should require a first draft, and be accepted only after at least one round of revisions.

Post-grading blues

Depressing rules of thumb:

(1) If you give first and last names to characters in your exam, some students will use only last names and some will use only first names. The students who mix will almost invariably use women's first names and men's last names. And honestly I'm not too sure about that "almost." I keep looking for a counterexample, but I don't recall one.

(2) If you give a woman a title--Dr., Professor--you substantially decrease, but don't eliminate, the use of her first name, but you also substantially increase the percentage of students who call her "he."

Star Trek and professional ethics

Warning: this post contains spoilers for the new Star Trek movie. This is an issue that came up in conversation; I seek feedback from fellow academics.

Here are the basics:

Spock is an instructor at Starfleet Academy. For the sake of argument, let’s call it a graduate institution, not an undergraduate institution. Uhura was, at one point, his top student in a particular class. Spock is still an instructor and Uhura is still a student; he observes an exercise in which she takes part but as far as it appears he does not have the power to grade the exercise. When crisis strikes, he has the authority to assign students to ships based on their qualifications. He initially assigns Uhura to the Farragut; when she protests, he explains that he has done this to avoid the appearance of favoritism. (Spock’s ship, the Enterprise, is more desirable.) She correctly points out that she’s the best at her job, and he reassigns her to the Enterprise. Later, on board, they kiss for what may or may not be the first time. After the crisis, they return briefly to the Academy, but quickly take up full-time posts on the Enterprise, with Uhura presumably now a graduate and Spock reassigned from his instructional duties.

Questions: Has Spock violated your institution’s rules on former student/teacher relationships? From an academic rather than a quasi-military perspective, should there be rules against this scenario? Does it matter whether their first romantic encounter comes before or after he assigns her to the Enterprise?

Disclaimers: I really like Spock and Uhura. I really like sf. I think the movie has a bunch of structural problems related to its disregard for institutions versus individuals, as elaborated here.