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Thursday, May 15, 2014

But I Did Stay at a Holiday Inn Express Last Night

In the late 90s and through the 2000s (and again in 2013), Holiday Inn Express ran a set of clever ads that found an average person endowed with special skills because, well, because he or she stayed at a Holiday Inn Express last night.  Sometimes I wonder if that line should be invoked for legal scholarship.  Just a couple of anecdotes...

First story: I like to write about language and the law, but I'm not a linguist.  In addition to my JD, I have an advanced degree in Electrical Engineering, but the closest thing I have to linguistics is...well, nothing.  When I first started presenting my academic work in this area, I would occasionally acknowledge that "hey, I'm no linguist, but..."; however, various mentors and friends told me to cut that out and stand on the research I had done without apology.  

A few years later, I was doing some ego-surfing on the internet and I found a comment on a blog run by actual linguists that basically called me uninformed - and you know what, I probably am...but I did stay at a Holiday Inn Express last night.  I mean, hey - the credentials that make me useful for patent law (see below) are not based on my expertise in the field of linguistics.  I do think, though, that there are some important synergies between the fields of patent law and linguistics that should be explored and the person to do that exploration is unlikely to be an expert in both. 

After licking my wounds at being called uninformed, I did the grown-up thing and contacted the guy that wrote the comment.  I explained to him that I was an engineer, not a linguist - but that I truly wanted to get it right.  His beef wasn't my main thesis, necessarily - but that I approached the explanation from an overly simplistic viewpoint.  So I asked him to tell me what I should learn to do it right.  He graciously sent me a list of books and articles that he considered canonical in his field and said he'd be happy to answer any questions I had going forward.  

Second story:  Over the last few weeks, there has been a raging debate -- well, not really debate, more of a brouhaha about who is qualified to talk about patent law.  For years now, when an academic has written a blog post about patent law, someone would chime in with a comment that patent academics didn't really know anything about patent law and should keep their mouths shut.  The recent discussion has been a survey of which current patent professors have a registration number with the US Patent and Trademark Office (required to interact with the Patent Office to obtain patents) and/or clerked at the US Court of Appeals for the Federal Circuit (the court that hears appeals in patent cases).  FWIW, I worked in patent law, have a PTO registration number, and clerked at the Federal Circuit - so I guess I'm cool and don't need to stay at a Holiday Inn Express.  But there are a number of well-respected and prolific patent professors that do not meet these qualifications - does that mean they shouldn't write and speak about patent law?  Are they uninformed?

How, as professors, do we get the special skills we may need to write in an area?  Are we really limited to only what we know stone cold or should we stretch the edges?  If we see areas of synergy between areas we know and areas we don't know as well (or at all), how should we proceed to write knowledgeably about the overlap?  Is it enough to stand on our research or do we need to seek out the help of an expert in that field (that knows little to nothing about our area of law)?  I'm pondering this question as I am dabbling a bit in cognitive science and intellectual property law.  So far, I haven't run afoul of any cognitive scientists, but when I do - should I tell them I stayed at a Holiday Inn Express last night?

Posted by Kristen Osenga on May 15, 2014 at 02:54 PM | Permalink

Comments

Of course, the in-crowd idea that commentators need to have a PTO registration number and clerk at the Federal Circuit before they can speak on patent law is what non-specialists see as wrong with the current state of patent law.

That is, non-specialists see the Federal Circuit as so lost in its own world of self-made patent law that they have lost sight of general legal principles that apply to patent and non-patent law. And that is perhaps why nine non-specialists at One First Street have been reversing the Federal Circuit so often lately.

Posted by: SM | May 15, 2014 3:10:17 PM

Kristen,

This is a great and thoughtful question.

Until relatively recently in legal education, law professors were content to be expert in doctrine, tinctured by the kind of informed view of social policy that comes from seeing events (cases) unfold hundreds or thousands of times. For better or worse, ours has not been a legal system dominated by experts, but by lay judgment and the guide of the ongoing conversation that is law.

Times have changed, and few legal academics today "condescend" merely to illuminate doctrinal murkiness, but rather aim situate their views in much broader debates about what society does, and should look like. It is of course impossible to describe these two concepts of scholarship without a measure of shorthand, verging on caricature, but work with me here.

I often find it humbling to ask people in the cognate disciplines what they think of interdisciplinary legal scholarship. I have generally found bewilderment at some of the claims specialists on our side of the university make about economics, history, psychology, political science, and almost anything else. Our ability to perceive correctly the claims made by, for example, legal economists or legal historians, is limited because most of us do not even pretend to be economists or historians (except perhaps in a casual way). And those of us who are - with noble intentions, of course! -"pretending" to be more than casual participants in a discussion across disciplines similarly lack the training and feedback of those disciplines. Our work is generally not peer-reviewed - if it were, our claims about what we "know" to be true about the world would be a lot more modest.

And modesty, as your post illustrates, is exactly what we law professors need. It takes genuine self-confidence and openness to venture deep into another discipline, not just for the Malcolm Gladwell version, but to inculcate oneself in a mass of often turgid and technical prose written by people who somehow managed to get Ph.Ds without having gone to law school. When I read your description, and think about some of the things I've had to learn to write some of my articles, I doubt I obtained even a graduate student-level education in the non-law aspects of these things. More like a couple of good grad school courses, if one is really patient and open.

On another thread at the Faculty Lounge, there's a post about legal academics becoming more integrated within the broader university; re-orienting themselves even further from "practice" towards "theory". There are a lot of things one might say about that, but one of them is that it's going to be much harder than many (smart, thoughtful, creative, yet essentially self-taught) legal scholars realize.


It is in our nature - first as academics, and secondly as scholars of a legal system by which everything in its turn must pass - to push boundaries and peer beyond the edges. And we should do so. But we must also recognize that ours is but one part of a much broader and richer conversation that many equally smart, creative, and formally-trained researchers have somehow managed to hold without us.

Adam

Posted by: adam | May 15, 2014 3:27:46 PM

What Adam said. Plus this is apropos; see the comments. http://prawfsblawg.blogs.com/prawfsblawg/2013/04/the-securitization-of-patents.html

Posted by: Michael Risch | May 15, 2014 5:54:48 PM

Three books you might want to take a look at:

1. Stephen Kellert, Borrowed Knowledge and the Challenge of Learning Across Disciplines
2. Louis Menand, The Marketplace of Ideas.
3. Michele Lamont, How Professors Think

Also Peter Goodrich's article, "Intellection and Indiscipline" in the Journal of Law and Society.

All of these deal with the rather artificial construct of academic disciplines. For how academic disciplines, particularly in the social sciences, arose: the historian Thomas Haskell's The Emergence of Professional Social Science. Also his essay on his critique of the infamous "Time on the Cross" in his collection of essays "Objectivity is Not Neutrality" is about being brave and taking on "experts" when you know enough to know that the thesis proffered doesn't make sense.

It's always a tension between creative insight and possible dilettantism, on one hand, and disciplinary rigor and possible co-optation into the club, on the other. But if you are going to work in the interdisciplinary spaces, you will be "undisciplined", at least until that space becomes its own discipline capable of coopting its adherents (see, e.g., "neuroeconomics").

And the issue has a significant practical consequence: how do you make a decision when it necessarily invokes two disciplines that don't really have a common denominator? How do you weigh the potential synergies of an acquisition against the disruption that may be caused by a possible challenge from the FTC on antitrust grounds? Who processes that calculus? I wrote about this in "The Venn Diagram of Business Lawyering Judgments," a piece that I now wish I had subtitled "The Very Deep Art of Being Constructively Shallow."

Posted by: Jeff Lipshaw | May 15, 2014 9:41:44 PM

Sorry. Kellert's book is "Borrowed Knowledge: Chaos Theory and the Challenge of Learning Across Disciplines."

Posted by: Jeff Lipshaw | May 15, 2014 9:45:19 PM

Being actually willing to do the work (in advance) is a big part of it. I say this as someone who learned Attic Greek (at a basic level) essentially for one article plus a couple of book chapters. Doing the work helped, a) because it does make an actual substantive difference---the claims I made are smarter than they would have been otherwise, b) because it is a good cure to hubris (you learn to truly understand the unique strengths of the other discipline and hence the limited scope of the claims you can make), and c) because it just shows respect, and is likely to earn respect in return, this respect in turn will be paid with things like collaboration and assistance which will help your research further.

Posted by: Paul Gowder | May 15, 2014 10:49:05 PM

Is some particular reason co-authorship is rare to the point of non-existence in law reviews and in many of the social sciences more generally? Coming from a natural science discipline it strikes me as odd.

Posted by: anonymoose | May 16, 2014 12:02:29 AM

I agree with Paul by the way. It's likely that one's venture into another discipline isn't going to change anything there, but it's important to get what you do take from it right, or at least not wrong. I did a what I wanted to be a playful piece on using a metaphor of psychoanalyst for lawyer-counseling, and I showed it to a well-respected psychoanalyst with the question: "did I screw anything up in here?"

Posted by: Jeff Lipshaw | May 16, 2014 7:51:28 AM

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