¶ The Laboratorium (3d ser.)

I am serving on Cornell’s Committee on Campus Expressive Activity. We have been charged with “making recommendations for the formulation of a Cornell policy that both protects free expression and the right to protest, while establishing content-neutral limits that ensure the ability of the university community to pursue its mission.” Our mission includes formulating a replacement for Cornell’s controversial Interim Expressive Activity Policy, making recommendations about how the university should respond to violations of the policy, and educating faculty, staff, and students about the policy and the values at stake.

I have resolved that while I am serving on the committee, I will not sign letters or other policy statements on these issues. This is a blanket abstention. It does not reflect any agreement or disagreement with the specifics of a statement within the scope of what the committee will consider.

This is not because I have no views on free speech, universities’ mission, protests, and student discipline. I do. Some of them are public because I have written about them at length; others are private because I have never shared them with anyone; most are somewhere in between. Some of these views are strongly held; others are so tentative they could shift in a light breeze.

Instead, I believe that a principled open-mindedness is one of the most important things I can bring to the committee. This has been a difficult year for Cornell, as for many other colleges and universities. Frustration is high, and trust is low.A good policy can help repair some of this damage. It should help students feel safe, respected, welcomed, and heard. It should help community members be able to trust the administration, and each other. Everyone should be able to feel that the policy was created and is being applied fairly, honestly, and justly. Whether or not we achieve that goal, we have to try.

I think that signing my name to something is a commitment. It means that I endorse what it says, and that I am prepared to defend those views in detail if challenged. If I sign a letter now, and then vote for a committee report that endorses something different, I think my co-signers would be entitled to ask me to explain why my thinking had changed. And if I sign a letter now, I think someone who disagrees with it would be entitled to ask whether I am as ready to listen to their views as I should be.

Other members of the committee may reach different conclusions about what and when to sign, and I respect their choices. My stance reflects my individual views on what signing a letter means, and about what I personally can bring to the committee. Others have different but entirely reasonable views.

I also have colleagues and students who have views on the issues the committee will discuss. They will share many of those views, in open letters, op-eds, and other fora. This is a good thing. They have things to say that the community, the administration, and the committee should hear. I don’t disapprove of their views by not signing; I don’t endorse those views, either. I’m just abstaining for now, because my most important job, while the committee’s work is ongoing, is to listen.

I have just posted a short essay, Scholars, Teachers, and Servants, which sets out my views on the essence of a professor’s job. The heart of an academic’s duty is research in the pursuit of truth; scholarship, teaching, and service are three different but mutually supporting uses of the fruits of research. I also say a bit about intellectual corruption, academic freedom, tenure, free speech, and some of the special characteristics of legal academia.

Most of the essay is not new. I wrote it for Jotwell’s fifth-anniversary conference in 2014, Legal Scholarship We Like and Why It Matters, then put it aside while I worked on other things. But recent events have convinced me of the topic’s urgency, so I’ve decided that rather than work on it or sit on it indefinitely, I should post it now with minimal revisions.

I expect higher education to come under a great deal of pressure in the coming years: some political, some financial, some moral, some intellectual. A lot of people will be shouting a lot of things about what universities and professors ought to be doing. Some of it will come from the academy’s enemies, who would like to destroy its institutions, either out of malign contempt or simple expedience. But some of it will come from the academy’s supposed friends, who will ask it to do things it cannot do well while forsaking the ones it can. I’m posting the essay now, in calmer times, as a reminder to myself of what I believe, to help me keep my own intellectual footing in the storms to come. If it is of any use to others, so much the better.

My casebook says things like, “This case involves allegations of online harassment and threats of violence.“ This raises two questions. If a case needs a warning, why include it at all? And if a case is is worth including, why warn students about it? To some people, the first question is more troubling; to others, the second.

My book and my courses feature a wide range of materials I have selected because I think they provide the best learning experience. Some of those materials are upsetting, not because I want to make my classes upsetting for its own sake, but because the world we live in is upsetting. (If you can read U.S. v Petrovic with no emotional reaction, check your empathy lobe.) Much of the anti-“trigger warning” discourse proceeds as though the classroom ideal is complete and detached emotional obliviousness. But that’s not right. It’s best to be able to encounter material – and the world – as complete human beings, both rational and emotional.

This is why the ideal of the university is an intellectual safe space – where ideas are safe to discuss, but we are also safe from them. A good classroom is one where everyone is genuinely comfortable taking on difficult material. My job is to help build that comfort. (I say help build rather than assume or impose.) That content warning is also a content assurance: we are in this together.

It’s ironic when professors give speeches about why they don’t give trigger warnings. What else are the speeches but trigger warnings given further in advance? I prefer ones closer in time, to flag the specific materials that call for more care. Maybe you want to leave yourself a few minutes before class to rest and compose yourself, maybe you don’t. I respect you enough to let you make that call. 99% of the time, there is no reason in the world to ambush students with challenging and troubling material. Present, yes; ambush, no.

As for opting out of those discussions, there are often good pedagogical reasons not to allow it. Class proceeds on a schedule; discussions are shared experiences; a course is a coherent program of study; some topics are important to pass by. Often – but not always. Sometimes a student can do an alternative assignment with no great loss of learning and without disrupting the rest of the class.

I pick the readings I think are best overall, but it’s not as though our syllabi come to us from the transcendent realm of Plato’s Forms. I make these decisions in the abstract, before the semester. But when it comes time to work with particular students, it’s often the case that there are readings and discussion topics I could replace with ones that are better for them. If a student has experience with patent law, it does little good to make them sit through Prometheus v. Mayo again. The same is true for the student who has experience with sexual assault.

Two stories. First, my recent draft on the CFAA makes a lot of comparisons with rape law in understanding “authorization” under the CFAA. A student who read the draft thought it was distracting. I thought long and hard about whether I could make the points differently. I kept most of the discussion, because the legal theory on consent has been developed most extensively and clearly in thinking about rape law. But some of the examples really were unnecessary, or could be replaced with ones drawn from elsewhere, e.g. theft law. I’ve changed them in the version that will be published. Is my paper worse because I deviated from my original ideal? No. It’s better now. A good paper is one that convinces actual readers.

Second story. I started law school in the fall of 2002. The one-year anniversary of September 11 fell on a day I had Constitutional Law. My professor decided to mark the occasion by giving a mini-speech extolling why September 11 showed the importance of the Constitution. I stood up quietly, left, and came back five minutes later, after he was done. Draw whatever conclusions you wish.

Thanks to Chris Peterson for Storifying the tweets on which this post is based.

Greg Lastowka died last night, much too young, after a long and difficult struggle with a rare and aggressive throat cancer. Greg was a law professor at Rutgers-Camden, the world’s leading legal academic authority on virtual worlds and online games, and a friend. He will be missed.

I discovered Greg’s work the way a great many people did: through his groundbreaking 2004 article with Dan Hunter, The Laws of the Virtual Worlds. It gave the first in-depth treatment of virtual worlds in the legal literature, and it posed fundamental questions about how property and governance ought to work online. When it hit SSRN, I had just competed a long and sprawling paper on law in virtual worlds, and my first reaction – after the sinking sense of being preempted – was to wonder just who it was who had beaten me to the punch.

The answer, it turned out, was a modest, generous, and thoughtful young law professor who was more interested in being part of a thriving academic community than in building a superstar’s reputation for himself. Greg, I came to learn, was a loving husband and father, a former Peace Corps volunteer who had served in Turkmenistan, and a dedicated public servant who took on the most unbelievably thankless tasks that university administrations can slough off onto their faculty. He was a booster of good scholarship wherever it could be found, a low-key and patient institution-builder, and a calming presence in contentious debates. Greg was a mensch.

He was a generation ahead of me in the academy, and he was one of my favorite people to see at conferences. We wrote on overlapping topics and he was helpful and encouraging to me on many occasions, something that matters a lot when you are just setting out in the academy. One of the great satisfactions of my first few years of teaching was to give a reader’s report enthusiastically advising Yale University Press to publish his book, Virtual Justice. Greg built a professional and personal identity for himself that struck me as very much worth emulating. At work, he studied amateur creativity in Minecraft; at home, he played Minecraft with his son the precocious programmer.

His illness was a bolt from the blue. It came on quickly and awfully, and gave him no good options. He tried experimental therapy, but he also – from what I could see – made his peace. He spent his final year with his family, whom I have never met but feel almost like I know through Greg’s wonderful stories. And he connected with his friends and colleagues, old and new. He was a gentleman to the last.

Good bye, Greg. Thank you for logging in and playing awhile with us.

Stanford’s Mark Lemley is arguably the preeminent scholar of intellectual property working today. He has 138 papers on SSRN; he is also a law firm partner and a Silicon Valley entrepreneur. But to list his resume items is to understate his impact, because he is also a respected statesman within the legal academy. He frequently collaborates with colleagues, offers extensive comments at conferences, and works tirelessly to build the community. The rest of us aspire to do one fifth as much one fifth as generously.

This is necessary background to my explanation of my concerns with Lemley’s latest essay, Faith-Based Intellectual Property.¹ The essay is an edited version of the Melville B. Nimmer Memorial Lecture, which he delivered at UCLA in the fall, and it will be published in the UCLA Law Review. The best summary of the argument is Lemley’s own:

The traditional justification for intellectual property (IP) rights has been utilitarian. We grant exclusive rights because we think the world will be a better place as a result. But what evidence we have doesn’t justify IP rights. Rather than following the evidence and questioning strong IP rights, more and more scholars have begun to retreat from evidence toward what I call faith-based IP, justifying IP as a moral end in itself rather than on the basis of how it affects the world. I argue that these moral claims are ultimately unpersuasive and a step backward in a rational society. (1)

The essay makes six notable claims, all of them on display in this summary. I would like to unpack the rhetoric going into them.

First, Lemley argues that “it is far from clear that IP is doing the world more good than harm.” (7) The essay devotes several extensively footnoted pages to backing up this statement. It runs through experimental, sociological, and econometric studies that consider the relationship between intellectual property law and how people actually behave. Lemley concludes that the evidence about intellectual property’s effects is “complicated” (6) and “decidedly ambiguous” (7). As he summarizes,

The relationship between patents and innovation seems to depend greatly on industry; some evidence suggests that the patent system is worth the cost in the biomedical industries but not elsewhere. Copyright industries seem to vary widely in how well they are responding to the challenge of the Internet, and their profitability doesn’t seem obviously related to the ease or frequency of piracy. The studies of the behavior of artists and inventors are similarly complicated. Money doesn’t seem to be the prime motivator for most creators, and sometimes it can even suppress creativity. And an amazing number of people seem perfectly happy to create and share their work for free now that the Internet has given them the means to do so. At the same time, the money provided by IP allows the existence of a professional creative class that may be desirable for distributional reasons or because we like the sorts of things they create more than we do the work of amateurs.

In presenting this overview of the evidence, Lemley straightforwardly lays out his own epistemological and normative commitments: he is an empiricist and a utilitarian.

Second, Lemley refers to two “sides of the IP debates.” (8) One of those sides supports “expanding IP rights” (7), or at least “like[s] the status quo” (8). The other side prefers “weaker IP rights” (15).

The third claim builds on the second: only one of these two “sides” really cares about empirical truth, and it is the side Lemley is on, the side of the intellectual property skeptics. His opponents “have instead sought ways to ignore the evidence and keep on doing what they have always been doing” (7), in part by “retreat[ing] to a belief system that doesn’t require evidence at all” (8). He writes, “If you like the status quo, the very last thing you want, it seems, is to take a good hard look at whether it is working” (8), and quotes critically Richard Spinello and Maria Bottis’s A Defense of Intellectual Property Rights, which in his view “avoids the need for empirical validation” (10).

Fourth, the essay rejects all normative frameworks other than Lemley’s own. He criticizes scholars who have “jettison[ed] utilitarianism for talk of morality.” (9). He argues that non-utilitarian theories are problematic because they are “impervious” (18) to evidence, because they cannot supply “limiting principle[s]” (15), because “it is awfully hard to come up with a moral theory of IP that can explain” why one person’s right to own information trumps someone else’s right to use it (15), and because they are “not really about maximizing value at all.” (14) Ultimately, he writes, “the move to moral justifications is designed to bias the analysis in favor of the IP owner.” (16)

The essay’s fifth claim turns the same normative and methodological critique against scholars on Lemley’s own “side.” He writes, “The ‘information wants to be free’ crowd is often guilty of the same sort of conduct, substituting a freedom-based or cultural vision of the way they think the world should be for reasoned analysis based on the evidence.” (16-17) The footnote that follows disapprovingly cites Hugh Breakey, Amy Kapczynski, Anupam Chander, and Madhavi Sunder for making non-utilitarian arguments. The Kapczynski article, for example, argues for considering distributive justice and not just overall social welfare in setting intellectual property policy. The implication is that Mark Lemley disagrees and that Kapczynski’s concern for equality is a “flight from evidence toward belief.” (16)

These first five claims, taken together, are a familiar political strategy. They assert that the world is divided into two parties (second claim), that the evidence favors the speaker’s party’s position (first claim), that the other party refuses to admit that it is wrong on the facts (third claim), that the the other party’s worldview is illegitimate (fourth claim), and and that ideological purity is a condition of membership in one’s own party (fifth claim). This is how pundits and politicians argue all the time. It is a little startling to see such rhetoric used in a debate among academics.

It is the sixth and final claim that really sets Faith-Based Intellectual Property apart. As the title suggests, the essay recasts academic debates about intellectual property as a conflict between science and religion. On the one hand, Lemley links skepticism about intellectual property to the Enlightenment project of rationality:

“We live in an age of reason. Or at least, we’re supposed to. Science has explained most of the things that in a prior era seemed like magic or the will of the gods, from the seasons to lightning and thunder to the diversity of the natural world. … The age of reason has extended to the economy.” (1)

“If we had evidence that any other kind of government regulation – or medical advice, for that matter – probably wasn’t helping much, or was only helping people in a few specialized areas, and might in fact be making things worse, the enlightened, reasonable thing to do would be to reassess that policy.” (7)

On the other hand, he describes support for intellectual property as a kind of religious superstition:

I call this retreat from evidence faith-based IP, both because adherents are taking the validity of the IP system on faith and because the rationale for doing so is a form of religious belief. The adherents of this new religion believe in IP. They don’t believe it is better for the world than other systems, or that it encourages more innovation. Rather, they believe in IP as an end in itself – that IP is some kind of prepolitical right to which inventors and creators are entitled. Because that is a belief, evidence cannot shake it any more than I can persuade someone who believes in the literal truth of the bible that their god didn’t create the world in seven days. Sure, there may be geological and archeological evidence that makes the seven-day story implausible. But faith is not just ambivalent about evidentiary support; it is remarkably resistant to evidentiary challenge. (10)

Citing Karl Popper, Lemley adds, “Faith-based IP is at its base a religion and not a science because it does not admit the prospect of being proven wrong.” (18) The comparison is inapt. Just as evidence proved one theory about the motion of the planets and disproved another, evidence might prove or disprove empirical claims relevant to a given theory. But empirical evidence cannot settle foundational moral questions of what is best. Lemley’s utilitarianism is no more falsifiable than Spinello and Bottis’s “natural law” (9) or Kapczynski’s distributive justice.

Instead, the metaphor that support for intellectual property is a kind of religious belief is doing a different type of rhetorical work. It links Lemley’s skepticism about intellectual property to modern secular liberalism, and brands his opponents as irrational, close-minded, and culturally conservative. Readers whose religious faith plays a significant role in their lives may find this equation unconvincing, or even baffling. But I suspect that such readers are a fraction of the essay’s intended audience of law professors. By and large, intellectual property scholars are heirs to the Enlightenment tradition. They share broadly humanist values and prize reasoned debate over appeals to revelation or authority. They work in basically secular institutions; their politics often tend toward solidly Democratic liberalism. “Faith” is a pejorative in the language of academic discourse.

Lemley’s essay is an attempt to turn a scholarly debate into a culture war. It takes questions about which reasonable minds can and do disagree and recasts them such that reasonable minds cannot disagree because one of the alternatives is by definition unreasoned. In so doing, it harnesses intellectual property law – not usually thought of as a fraught subject – to genuinely divisive controversies. The anti-religious frame of Faith-Based Intellectual Property is familiar from the fights over abortion, same-sex marriage, and Hobby Lobby. This kind of culturally charged polarization might or might not be an effective tactic in pushing back against strong intellectual property laws. But it is a disappointing development for intellectual property scholarship.

In his conclusion, Lemley writes:

But if you are one of the faithful, I probably haven’t persuaded you. The psychology literature suggests that while people are willing to be corrected about factual inaccuracies – things they think are true but are not – they are essentially impervious to correction once the thing that turns out to be untrue crosses the line into a belief. And that leads me to the last – and, to me, most worrisome – problem with faith-based IP. If you are a true believer, we have nothing to say to each other. I don’t mean by that that I am giving up on you, deciding that you’re not worth my time to persuade. Rather, I mean that we simply cannot speak the same language. There is no principled way to compare one person’s claim to lost freedom to another’s claim to a right to ownership. Nor is there a way to weigh your claim of moral entitlement against evidence that the exercise of that right actually reduces creativity by others. Faith-based IP is at its base a religion and not a science because it does not admit the prospect of being proven wrong. The inevitable result of a move toward faith-based IP is that we will make policy based on our instincts without being able to engage in a meaningful conversation about the wisdom of that policy.

This is the last and most unfortunate consequence of turning conversations into culture wars. The central claim of the Cultural Cognition Project is that once people perceive an issue as a cultural litmus test, they harden their positions because changing their minds would call into question affiliations they consider central to their identities. This is not unique to religious belief; it is a general characteristic of any issue that plays a role in defining competing group identities. Recasting an empirical issue in cultural terms, as Lemley has done, makes it harder, not easier to reach empirical consensus. I consider it a regrettable turn for a scholarly community that has largely been cordial, collegial, and supportive – as exemplified by Mark Lemley himself.

Other discussion of Faith-Based Intellectual Property includes posts by Amy Landers, Lisa Larrimore Oullette, Jeremy Sheff, and Lawrence Solum. ↩︎

Law review publishing is weird. Any system that runs on massive simultaneous submission is bound to be. Everyone who’s published a law review article knows the wistful feeling that comes after you accept an offer of publication and now need to tell the other journals that your article is taken. There is always that sense of what might have been, the temptation to hold off sending the email just a few more minutes. Prestigious Law Journal never got back to me. What if?

Then, if you are a normal person, you put the feeling aside and hit “send,” because you gave your word to the first journal when you accepted their offer, and it is time to move on and get back to prepping for tomorrow’s class. But every so often, someone gets that second email out of the blue, and the temptation to procrastinate turns into a different and much worse one. An offer from the Prestigious Law Review – how could I turn that down?

A few weeks ago, Dave Hoffman at PrawfsBlawg wrote about someone facing that second temptation, and giving in:

… And, though I’ve been teaching for over a decade, and heard literally dozens of stories like this, I’d never actually heard of anyone backing out of a law review acceptance until this cycle. Temple just had someone back out. Because that person is junior – and no doubt listening to a more senior mentor’s advice – I’m not going to provide more details. I will say that the acceptance/rejection cycle was very dispiriting to the students involved, and it rightly might make them quite cynical. And it did make me wonder whether publication decommitments are more widespread than I’d thought, and whether journals could (or should) do anything to stop them.

Dave’s post sparked a long and interesting discussion about the complicated ethics of the law review submission process. I found one aspect of the conversation troubling; it has been gnawing at me for a while. Several of the commenters brought contract theory into play, and argued that backing out of a law review publication agreement to take a “better” offer is a case of efficient breach. The gains to the author who runs off with Dustin Hoffman outweigh the losses to the journal left standing at the altar. Other commenters objected that the author doesn’t actually compensate the journal for its loss, as a breaching party in a contract case would be expected to. Orin Kerr playfully suggested that a “liquidated damages condition for withdrawal” might be the answer, because “law review editors get a lot of beer money if the author backs out, which they’re happy to have, and the author can pay the damages and accept the better offer, which the author prefers.”

I find the whole line of analysis problematic, because it misdescribes the relationship between authors and journals. They don’t interact in a market with prices and payments; if they did, the system of selection for scholarly quality would collapse in short order, and with it a large part of law reviews’ reason for being.

Law reviews ration article slots rather than auctioning them; the author-journal matching process doesn’t reflect willingness to pay. But that means there are significant externalities to the publication contract; authors and journals don’t fully internalize the effects on the other parties they deal with. The private costs to an author and a journal dealing with each other will almost always depart significantly from the overall social cost of their actions.

Suppose that Professor Cutpurse has already agreed to publish with the Podunk Law Review when he gets an offer from the Ivy Law Review. If Professor Cutpurse backs out, then Podunk will fill the slot by accepting an article from a second author: Professor Peppercorn. But if Professor Cutpurse doesn’t back out, then Ivy will fill its slot by accepting an article by a third author: Professor Scratchgrab. When you take into account Professors Peppercorn and Scratchgrab’s own offers and decisions, there are ripple effects for still more authors and journals.

Hence we can’t show that what is efficient between the author and the less prestigious journal is efficient taking into account the other affected parties. It might be. It might not. But we have no strong reason to think that it will be. The fact that the author values a placement with the more prestigious journal more than the less prestigious journal values publishing this particular author tells us almost nothing, because this will almost always be the case.

Some numbers will illustrate the point. Suppose that Professor Cutpurse would pay 100 quatloos to publish with the Ivy Law Review, and that the Podunk Law Review would be wiling to let Professor Cutpurse go for 10 quatloos. Obvious gains from trade, right? Not so fast. The problem is that Professor Scratchgrab would also value the Ivy placement more than her own current best offer from the Generic Law Review. If I had to guess how much Professor Scratchgrab valued an offer from the Ivy Law Review, my mean would be 100 quatloos.¹

Those 100 quatloos of utility for Professor Cutpurse don’t come out of nowhere. The value of an Ivy slot is being allocated to one professor or another, one way or another. Statistically, Cutpurse’s decision to cut and run will tend to be efficiency-improving only if there is some reason why Cutpurse’s situation is special, why Cutpurse really would value the placement more than Scratchgrab, who is next in line at Ivy. But there is no way to know that up front because, the way this market works, neither Cutpurse nor Podunk has any idea who Scratchgrab is. The system does not work in a way that elicits all of the willingness-to-pay information Cutpurse would need to make a good efficient breach argument at the time of breach.

The law review placement process doesn’t ignore price signals because of some kind of regulatory failure. It systematically suppresses them because the process is supposed to reflect something else: scholarly quality. Authors want “prestigious” law review placements because placement is a proxy for the quality of the author’s work rather than the size of the author’s bank account. Put money in the picture and the result is not that authors bid up the price of a slot in the Ivy Law Review but that publication becomes close to worthless for all authors.

There is also a deeper moral concern at work. Law reviews are able to ignore money in making publication offers because they are heavily subsidized with student time and law school dollars, both of which come ultimately from the pockets of law students and taxpayers. The only way in which that subsidy could be anything other than gravely immoral is if publishing scholarship yields social benefits and not just private benefits to Cutpurse.

So the efficient-breach claim (and with it the claim that this should be a matter for negotiation and side payments between Cutpurse and Podunk) is self-defeating. If we looked at law review placement only by asking what authors and law reviews want individually, the entire system would collapse, and would deserve to.

The law review system is broken. But it is not so broken that I would like to tear the whole thing down. And certainly not in this way.

And my best estimate of how much Ivy values publishing Cutpurse than Scratchgrab is 10 quatloos – the same amount Podunk values Cutpurse over Peppercorn. ↩︎