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Teaching Law School Seminars

By Rob Heverly

There seems to be a lot of talk today about law schools and law school teaching. Should we engage in new methods of assessment (as someone who dealt with a system replete with discussions of "assessment, objectives, aims and outcomes" I will write another post about the upcoming 2009  Legal Education at the Crossroads [pdf] conference in Denver in September)? Should law schools move to a two-year model, change their three year plan, or perhaps, go for four years? Do law schools do the job necessary in modern times to prepare students for what they will encounter, and for what law firms need in today's competitive market?

These are important questions, and they deserve a level of considered discourse. But even if we're not ready to try to handle what are partly intractable discussions about the form of legal education, we can still talk about what we are doing now, how we are doing it, and whether it's working for our purposes.

What I am interested in talking about here is how law professors teach seminar classes, and how students react to those methods (please read this as actively requesting student and former student comments). I'll start us off after the jump.

This past spring I taught a seminar inaptly named, "Advanced Copyright Law." While it was more advanced than a basic copyright survey course, it was not what I consider a typical "advanced" seminar as such. Many times an "advanced" course simply looks at a few issues from the topic in detail, allowing for greater depth of reading and discussion, but covering less overall "ground" than a survey or introductory course. I should have titled this class "Managing Risk in Copyright Law," because I taught the entire semester from the perspective of risk management. Risk management? Isn't that the province of insurance companies? Well, yes and no. Let me explain what we did (I say "we" because the students were an integral part of the structure and execution of the course).

I assigned cases, statutes, and articles for the students to read, but we didn't spend all of our time in class making sure the readings were understood or discussing them on their "merits" as it were. These were all upper-class students, and I assumed they could read and generally understand the materials. We would generally spend between ten and twenty minutes making sure the necessary level of comprehension was there (longer for more difficult topics like valuation of copyright works, less perhaps for fair use cases, where the language of the legal doctrine is rather static, even if its application is not), but then we would move on.

The next step in a "traditional" seminar might be to analyze the arguments the parties and authors made and come up with new ones, different ones, more persuasive one,s, or perhaps even to critique the policy or the theory of the materials. But instead of following this path, we asked how the litigants or parties involved in a particular kind of dispute could have avoided the dispute altogether. That is, we asked, "if you had the "losing" party as a client at the time that the decisions were being made that landed them in the dispute, what advice could you have given them that might have altered either the outcome of the litigation or, might have avoided the litigation altogether?"

We therefore looked to the point in time the relevant (critical?) decisions were being made, assessed the risks of deciding in certain ways and not others, and then discussed how we could have helped the client manage the risks of the decision she chose. For example, in the MGM v. Grokster litigation (EFF pages here), Grokster's liability flowed primarily out of its marketing decisions. It marketed Grokster as a replacement for Napster (which had been found to be contributorily liable for copyright infringement), and the courts found that it distributed and marketed its technology with an intent to foster infringement. What could a lawyer have told Grokster early on, before it started to distribute its technology? Don't market the software in a way that encourages users to infringe copyright.

This is, of course, an overly simplistic resolution, and we spent time in class discussing the client's likely reaction and the ethics of doing what could be seen as helping clients skirt the law. But the discussion was never about the Sony [pdf] standard, or about what poor litigation choices Grokster made or might have made. It was all about how to manage the risk that Grokster might be sued for distributing its technology (which seemed pretty high no matter what Grokster did) before Grokster took any of the relevant actions.

In another instance, we looked at Suntrust Bank v. Houghton Mifflin, "The Wind Done Gone" case. In those circumstances, we concluded that if the publisher wanted to publish -- which it clearly did -- and if Suntrust was unwilling to provide a license -- which it was not willing to do -- then risk management involved counseling the client on the vagaries and uncertainties of litigation and especially of the fair use doctrine, including the possibility that they might lose a copyright infringement suit. There was no reasonable way to manage the risk in this case that would have allowed Houghton Mifflin to avoid the strong likelihood of litigation (absent not undertaking the project).

The full slate of topics we looked at were (keeping in mind we did all of these from the risk management perspective, so each could be titled, "The risks of . . ."):

• Selling and purchasing rights (through the lens of the SCO litigation)
• Relying on fair use as a business model (considering orphan works and other questions relating to verifying ownership or owner status)
• The use and distribution of copyright works (MGM v. Grokster, google books, and others)
• Licensing (open source, creative commons and viral licensing)
• Digital rights management (implementing DRM, working "against" DRM)
• IP valuation (sales, damages, taxation)
• Enforcement (choosing to enforce or not, against whom to enforce)
• Global markets
• The Future, looking forward for new challenges (here we examined Jim Gibson's Yale Law Review piece, Risk Aversion and Rights Accretion in Intellectual Property Law, 116 Yale L.J. 882 (2007))

Some topics worked better than others, and some took two classes due to the understanding we needed to develop in relation to the topic -- these included selling and purchasing rights as well as DRM. Overall it was a fun class to teach, and according to the students a useful perspective from which to study the law.

So, with that for a start, what other perspectives do faculty members use, and what perspectives do law students find useful and interesting (especially in the context of a few years in practice)? Does anyone do "problem based learning" (where students are given a fact set and need to research the law themselves, often in groups)? I did this often in the UK and may reprise it in the future, but am keen to get insights from other people who have used it in the law school setting.

Full post as published by The Faculty Lounge on August 16, 2009 (boomark / email).