Writing to Learn Law and Writing in Law: An Intellectual Property Illustration

This essay, prepared as part of a Symposium on teaching intellectual property law, describes a method of combining substantive law teaching with a species of what is commonly called "skills" training. The method involves assessing students not via traditional final exams but instead via research memos patterned after assignments that junior lawyers might encounter in actual legal practice. The essay grounds the method in the theoretical disposition known generally as "writing to learn." It argues that students are likely to learn intellectual property law effectively if they learn to practice as intellectual property lawyers, and specifically to write as intellectual property lawyers

Beyond Invention: Patent as Knowledge Law

The decision of the Supreme Court of the United States in Bilski v. Kappos, concerning the legal standard for determining patentable subject matter under the American Patent Act, is used as a starting point for a brief review of historical, philosophical, and cultural influences on subject matter questions in both patent and copyright law. The article suggests that patent and copyright law jurisprudence was constructed initially by the Court with explicit attention to the relationship between these forms of intellectual property law and the roles of knowledge in society. Over time, explicit attention to that relationship has largely disappeared from the Court’s opinions. The article suggests that renewing consideration of the idea of a law of knowledge would bring some clarity not only to patentable subject matter questions in particular but also to much of intellectual property law in general

The Idea of the Law Review: Scholarship, Prestige, and Open Access

This essay was written as part of a Symposium on open access publishing for legal scholarship. It makes the claim that open access publishing models will succeed, or not, to the extent that they account for the existing economy of prestige that drives law reviews and legal scholarship. What may seem like a lot of uncharitable commentary is intended instead as an expression of guarded optimism: Imaginative reuse of some existing tools of scholarly publishing (even by some marginalized members of the prestige economy - or perhaps especially by them) may facilitate the emergence of a viable open access norm

The Lawyer as Legal Scholar

I review Eugene Volokh's recent book, Academic Legal Writing. The book is nominally directed to law students and those who teach them (and for those audiences, it is outstanding), but it also contains a number of valuable lessons for published scholars. The book is more than a writing manual, however. I argue that Professor Volokh suggests implicitly that scholarship is underappreciated as a dimension of the legal profession. A well-trained lawyer, in other words, should have experience as a scholar. The argument sheds new light on ongoing discussions about the character of law schools

Social Software, Groups, and Governance

Formal groups play an important role in the law. Informal groups largely lie outside it. Should the law be more attentive to informal groups? The paper argues that this and related questions are appearing more frequently as a number of computer technologies, which I collect under the heading social software, increase the salience of groups. In turn, that salience raises important questions about both the significance and the benefits of informal groups. The paper suggests that there may be important social benefits associated with informal groups, and that the law should move towards a framework for encouraging and recognizing them. Such a framework may be organized along three dimensions by which groups arise and sustain themselves: regulating places, things, and stories

Rewriting Fair Use and the Future of Copyright Reform

This essay describes a social practices approach to the production of creative expression, as a construct to guide reform of copyright law. Specifically, it reimagines copyright's fair use doctrine by basing its statutory text explicitly on social practices. It argues that the social practices approach is consistent with the historical development of the fair use doctrine and with the policy goals of copyright law, and that the approach should be recognized in the text of the statute as well as in judicial applications of fair use

On the Possibility of Knowledge through Unsafe Testimony

If knowledge requires safety, then one might think that when the epistemic source of knowledge is testimony, that testimony must itself be safe. Otherwise, will not the lack of safety transfer from testimony to hearer, such that hearer will lack knowledge? Resisting this natural line of reasoning, Goldberg (2005; 2007) argues that testimonial knowledge through unsafe testimony is possible on the basis of two cases. Lackey (2008) and Pelling (2013) criticize Goldberg’s examples. But Pelling goes on to provide his own example that attempts to show that Goldberg’s thesis is true: one can gain safe testimonial belief from unsafe testimony. If any of these counterexamples were correct, they would undermine the main reason to think that knowledge based on unsafe testimony is impossible. My aim in this paper is to critically assess these arguments, and to consider the possibility of knowledge through unsafe testimony. Drawing a general moral from the analysis of these cases, I shall contend that it is impossible to acquire safe belief solely on the basis of unsafe testimony. If so, then testimonial knowledge based solely on unsafe testimony is impossible

Disqualifying ‘Disqualifiers’

In addition to the notion of defeat, do we need to expand the epistemological repertoire used in accounting for the context dependence of justification? It has recently been argued that we ought to admit a hitherto unrecognized fundamental epistemic kind called ‘disqualifiers’. Disqualifiers are taken to be not reducible to any other epistemic notion. Rather, they are meant to be primitive. If this is correct, it is a surprising and novel discovery, and so it is worthy of further epistemological investigation. In this paper I shall first argue that the cases given do not motivate positing the notion of a disqualifier. Conclusions drawn about the existence of disqualifiers do not follow from the considerations advanced. Second, I shall directly argue that an essential core claim of those who would posit disqualifiers, that so-called disqualifiers actually do prevent epistemic bases from conferring justification, is false. In sum, I shall argue that there are no disqualifiers

On justifications and excuses

The New Evil Demon problem has been hotly debated since the case was introduced in the early 1980’s (e.g. Lehrer and Cohen 1983; Cohen 1984), and there seems to be recent increased interest in the topic. In a forthcoming collection of papers on the New Evil Demon problem (Dutant and Dorsch, forthcoming), at least two of the papers, both by prominent epistemologists, attempt to resist the problem by appealing to the distinction between justification and excuses. My primary aim here is to critically evaluate this new excuse maneuver as a response to the New Evil Demon problem. Their response attempts to give us reason to reject the idea that victims of the New Evil Demon have justification for believing as they do. I shall argue that this approach is ultimately unsuccessful, however much of value can be learned from these attempts. In particular, progress in the debate can be made by following those who advance the excuse maneuver and make explicit the connection between epistemic justification and epistemic norms. By doing so, the questions being debated are clarified, as is the methodology being used to attempt to answer them