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Friday, November 20, 2009

For Whom Do We Teach?

As the semester winds down and preparation for next semester gears up, I've had some thoughts about topic selection for my courses. For example, this year I cut "Defenses I" from the course - it was a survey of three really interesting defenses: reverse doctrine of equivalents, experimental use, and laches. They should all be really important defenses but for reasons I won't get into here, they just aren't. So, do I focus on what I wish the law would be, or do I focus on the topics that students are likely to encounter? In a perfect world, I would do both, but patent law is just too broad to do so in a 3 (or 4, or 5) credit course. This year, I decided to focus on the more likely defense: inequitable conduct.

I face the same issue as I plan for cyberlaw - many ask me if I teach any international aspects in class. Despite the growing importance of international e-commerce and social networking, I've made the judgment call that my students are far more likely to encounter the domestic "bread and butter" issues that I choose to cover. Unfortunately, this leaves little room in the course to address international issues, which are really interesting and potentially important. Indeed, cyberlaw is even more complex for me, as I often have several students from the engineering school's computer forensics program - the issues those students will face are different still from the typical lawyer's issues.

So, how do we decide these trade-offs?

I am increasingly siding on the student needs (rather than student interests or my interests) side of line. While I think many of the issues I could teach are really interesting, I can satisfy my curiosity through research. Indeed, the likelihood that I could cover any topic and its nuances in such detail the students will understand and retain is unlikely in any event.

The bigger question, I think, is whether to teach something that the students might find interesting, but that they are unlikely to encounter in practice. It seems to me that the answer depends on the type of class. In patent law, I take a relatively no-nonsense approach for a couple reasons. First, most of my students will not become patent prosecution lawyers. Those that will take patent drafting as well. Second, let's face it, patent law has few sexy issues. Thus, I try to make the basic stuff interesting and tie it to potentially interesting policy issues, like patenting of DNA or software.

Cyberlaw is a different story - there are all sorts of issues that students may find interesting, but that don't come up that often unless you specifically practice in the area. As a result, my cyberlaw course is mixed. I cover core topics like copyright, trademark, Communications Decency Act, and jurisdiction. I also spend some time on privacy and consumer protection, which I think they are less likely to see but have a lot of interest in.

I am certain that there are some classes that are all about the interesting policy issues rather than the practical nuts and bolts, and I also suspect that the mix differs by school personality, both because of teacher and student goals and interests. I also suspect that the Carnegie Report has something to say about this topic, though I reject the view that law school is merely a trade school and that all classes must be geared toward the practical use of information taught, even if I lean that way much of the time.

Posted by Michael Risch on November 20, 2009 at 10:29 AM in Life of Law Schools | Permalink


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I think we're in agreement about the importance of category 2. Subject matter was especially touchy, but also novelty even given a push for first-to-file reform, which we covered. I guess I don't put experimental use in that category. Other than a couple dissents, I'm not optimistic that the law will change in a couple years. Of course, that's a factual quibble rather than a big picture point.

Posted by: Michael Risch | Nov 20, 2009 8:15:40 PM


I think we can draw three categories:

1. The law as it is now.
2. The law as it may be in the future. E.g. If you were teaching subject-matter this year, you'd probably have included a statement "everything I say might change in the next six months."
3. The law as the professor thinks it should be, which may or may not have anything to do with (1) and (2).

I think everyone teaches a combination of the three, and it is a question of relative weights. Your post, I take it, is advocating lowering the weight of (3) (except to the extent it overlaps with (1) or (2)), because students in real-life practice aren't going to be getting much mileage out of saying "my patent professor thought your ruling was wrong for policy reasons" to the Federal Circuit. I can understand the point, though of course there are counter-arguments. My point, however, is that even accepting real-life pragmatism as the lodestar, (2) has an important place because the law changes, and especially patent law where the students starting practice in 2 years are likely to find a somewhat different world of doctrine that today.

Posted by: TJ | Nov 20, 2009 7:51:50 PM

You make a good point, and it is the reason why I included it in the past. I include in your qualifier teaching the law now and the way the law should be. Based on limited time, however, that something had to give.

On a substantive note, I hold out hope that Reverse DOE will apply in biotech cases where a protein is expressed by CDNA rather than through traditional methods.

Posted by: Michael Risch | Nov 20, 2009 6:18:57 PM

One qualifier I'd put (though it can easily be abused in the process of self-rationalization) is that we need to teach students the law as it might evolve as well as the law right now. The reverse DOE is completely dead and, I think, has no chance of being revived. But experimental use and laches might catch on, especially with Justice Breyer's concern about patents impeding subsequent research.

Posted by: TJ | Nov 20, 2009 6:05:01 PM

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