Copyright Law
My goal is to inspire students to learn, and to have the confidence to learn, long after they have left my classroom. I try to do that by demonstrating first-hand a passionate approach to the subject matter—as a lawyer, not just as a teacher—and by inviting students to explore their own passions, in roles that I help them create. I want students to feel not just the responsibility but the unease that comes with forming and expressing a professional judgment and having a client rely on that. Good judgment or poor, the client's perspective comes first. If students can use those feelings to start to build confidence in themselves, then they are on their way to professional success.
They Think More Clearly if They Write More Clearly
Clients Don't Need Case Analysis
They Need JudgmentCopyright Law is an upper-level elective focusing on the American copyright system. I have taught the course since 2001. Beginning in the Spring of 2005, I have based student assessment on a series of three short written “open” memoranda, each of which is framed as a request for advice from a senior lawyer, or a client, to a junior lawyer. Legal analysis is required but is subordinated to the lawyer’s solving a client’s problem, which may have legal, business, practical, and ethical dimensions. (The course was designed prior to the release of the Carnegie Report, however.) The assignments consist of open-textured, often ambiguous problems. Students are limited to submitting short (4-page) papers. Class time is given to encourage students to ask questions about each assignment, so that they can expand their understanding of the facts. Papers are graded based on the content of the legal analysis and also for responsiveness relative to the request for legal judgment. I provide multi-page written feedback on each memo that covers composition, organization, syntax, and grammar. Classroom teaching supplements the assessment method by regularly shifting from lecture-plus-discussion into complex hypotheticals that cast as many as six or seven students into different roles during exploration of a single problem. I practiced law for close to ten years, and in my early years of teaching I was frustrated by my inability to connect my teaching and my experience as a lawyer. Teaching law through teaching writing helps me close that gap. The law as practiced begins with legal analysis but requires much more: factual investigation and analysis, the exercise of judgment that distinguishes more meaningful and more important issues from less significant ones, the confidence to express an opinion regarding what a client should do (or should not), and the ability to express all of those things in writing, clearly and succinctly. I believe that any subject is learned more effectively if it is learned as it is practiced. I am consciously adopting a “writing to learn” pedagogy.
Upper Level / Non-Required / Legal Writing
In Copyright Law, students will:
- Learn some nuts and bolts of American copyright doctrine, including how copyright fits into related schemes in international law and in patent, trademark, and free speech law. Much of the reading is oriented to nuts and bolts questions. Students are expected to master much of the basics of this material on their own.
- Learn quite a bit of the theories and policies that underlie copyright law, and many of the practical consequences and questions that face copyright lawyers and their clients. Much of the classroom discussion is oriented to theory and policy and to consequences and questions. The nuts and bolts cover a landscape that is broader than a single semester can cover, and they change all the time. The theory and policy, and the consequences and questions, are more conceptually complex, help integrate the different areas of the law, and are (paradoxically) more durable, and for all of those reasons are more important. Students are expected to come to class prepared to engage in discussions that relate nuts and bolts to theory and policy and consequences and questions. It is expected that students will recall and be able to apply the fundamental doctrines and policies of contract law, property law, and tort law.
- Understand law and policy in the context of being a lawyer, that is, in the context of representing clients. Simply knowing law and policy for oneself is not enough. Lawyers (and therefore law students) must be able to situate their knowledge in the context of others’ problems. Among other things, that means that I will rarely ask students to give me the correct answer to a legal question. I will frequently ask students to exercise their judgment in counseling others and advocating on their behalf.
- Write. This is a course in advanced legal writing. Students should expect to have their writing scrutinized and critiqued at the level of the word and the sentence, at the level of the concept and the structure of the argument, and at the level of substantive legal analysis. The essential architecture of the course has remained unchanged since its inception. Regarding modifications and lessons, see next under "Recommendations."
Lectures / Collaborative / Cooperative / Team Learning / Group Discussion / Legal Writing
The course description above includes notes regarding my key teaching methods: open writing assignments during the term (with instructions that provide that students may collaborate but are not required to do so); detailed written comments interlineated on each student's paper, supplemented by a multi-page handout summarizing all comments for the benefit of the entire class; and ungraded in-class role-playing exercises that typically engage five to six students in different roles in a single hypothetical.
A fuller account of the methods used and justifications for the course are found in Michael J. Madison, Writing to Learn Law and Writing in Law: An Intellectual Property Illustration, 52 St. Louis Univ. L.J. 823 (2008). That article also describes modifications to the course since its inception, and some lessons learned. I have also used the framework described in that article (and in this submission) in Trademark Law (since Fall 2007) and in Electronic Commerce (one semester, Spring 2002).
Construct writing assignments with “loose” patterns of facts and legal issues, giving students plenty of opportunity to discover problems, challenges and solutions that you as the teacher may not have anticipated yourself. I usually have one or two key legal issues in mind when I draft an assignment, but I avoid crafting a careful “issue spotting” hypothetical. The world of law practice does not come to lawyers pre-packaged with specific issues to sort out.
Communicate your expectations to students early and often, orally and in writing, with respect to the content of the assignments and their work product. In my experience, students have an extremely difficult time suspending their student identities and initiating lawyer identities. In other words, they have a hard time producing assignments in role, for their clients or other audiences rather than for their teachers. Their impulse is to treat the writing assignments as mini-exams. Training students to break that habit involves combinations of classroom discussions, role-playing exercises, and extensive feedback on their work product. It also involves “showing” as well as “telling.” Take every opportunity to use real life examples – war stories, guest presentations, anecdotes from recent developments in the law – to illustrate the value and importance of this perspective on law practice and studying law.
Adapt your classroom teaching style wherever possible to put students into role-playing situations, even when discussing and analyzing “typical” law school casebook materials. This helps students see the relevance and value of the written assignments, and it helps to integrate both the written work with the classroom work and the substance of the law with the professional identity aspects of law practice. I try to do this in the classroom in two ways. One, I work with the principal cases in the casebook, putting the students in the positions of both parties and non-parties to the case, pre- and post-litigation. Two, I introduce additional hypotheticals not linked to the principal cases, and sometimes not closely linked to legal rules and legal analysis. In both contexts I try to include as many as six or seven students in a single role-playing exercise. That helps to commit the whole class to the project. I avoid leading the students to particular doctrinal or public policy outcomes. Instead, the point is to engage multiple students in multiple roles and to challenge them to see the central and difficult role of exercising professional judgment in contexts where there are few, if any, hard and fast principles to stand on.
I look to two sources of evidence in measuring my effectiveness. One is internal. Do the students' papers improve over the course of a single term? Generally, they do. The writing gets crisper, the analysis gets more focused, the responsiveness to my prompts is higher.
Two is external. I solicit feedback from my former students, once they begin practice, and I solicit input from practitioners who have not been my students. The latter group generally praises the model. The former group—my former students—generally reports that my model prepares them well for law practice, because my framework mirrors their real-world experience.
My teaching was recognized with a Chancellor's Distinguished Teaching Award in 2009. This is an honor awarded by the university and is peer-review based. The citation for the award focused primarily on the teaching model described in this submission.
Future modifications may include blending different subject matter disciplines in a single course (copyright law together with trademark law, for example), and moving away from a traditional casebook as the primary teaching text and toward complex cases based on a business school model.