Intellectual Property Theory

Fall 2023

Professor Brian L. Frye

Room 271 (office)

(917) 273-2382 (cell)

brianlfrye@gmail.com

Tuesday 3:00 pm - 4:50 pm

Room 222

SYLLABUS

This seminar class has two primary goals: to introduce you to concepts in intellectual property theory and to help you learn how to produce legal scholarship. Over the course of the semester, we will read and discuss a wide range of different articles. Many of those articles will focus on particular concepts in intellectual property theory. Others will focus on how we learn and understand concepts in intellectual property theory. And still others will focus on how and why we produce legal scholarship in general.

Among other things, we will explore current issues in intellectual property law by reading and discussing law review articles addressing different topics related to intellectual property history, theory, and practice. Guest speakers will present their scholarship and discuss it with the class.

However, the primary purpose of the class is to help you produce a work of legal scholarship that reflects on a problem in intellectual property theory. The class will take you through all of the steps in producing a work of legal scholarship, from identifying a thesis through researching and revising your thesis, and from producing an initial draft of a law review article through presenting your work to your peers to revising your article and getting it ready for publication.

During the course of the semester, I will also assign additional projects that will help you learn how to develop and research a thesis.

Class Meetings

This class will meet on Tuesdays from 3:00 p.m. to 4:50 p.m. in Room 222.  You should complete the assigned readings and any additional assigned material before class meets.

Under the American Bar Association Standards for the Approval of Law Schools Interpretation 306-3, “Courses in which two-thirds or more of the course instruction consists of regular classroom instruction shall not be treated as ‘distance education.’” Accordingly, two-thirds of the class sessions will meet in person and two-thirds will meet remotely via Zoom. I will provide a list of which class sessions will meet remotely, so you can plan accordingly. Please identify an appropriate location you can use for our remote class sessions.

Attendance is mandatory under the University of Kentucky College of Law Faculty Rules and Policies, the Rules of The Supreme Court of Kentucky on the Admission of Persons to Practice Law SCR 2.014, and the American Bar Association Standards for the Approval of Law Schools 304(d). If you cannot attend a class session, please let me know via email. No documentation of the reason for your absence is necessary. Unexcused absences may affect your grade or require withdrawal from the class.

The assignments for this class are listed below. There is no casebook. All of the readings and other materials are available on the internet and on Canvas.

You must sign up for this class on Canvas using your preferred email address. I will announce any changes to the class schedule via Canvas. I am always available via email, which is my preferred method of communication. However, you should feel free to call or text my cell, as necessary. You are welcome to ask questions via email. I may choose to respond to emailed questions collectively or in class, if the answers will benefit your classmates.

I am available to meet with you on Zoom by appointment. I will also schedule Zoom meetings to discuss your research and writing over the course of the semester. I look forward to discussing your work and progress with you, and I want to help you succeed.

Office Hours

I will usually be in my office on Monday, Tuesday, and Wednesday, on weeks when the class meets in person. If I am in my office, I am generally available to meet with you at any time.

I am also happy to schedule virtual office hours at your convenience. You can schedule an appointment via email. I strongly encourage you to schedule virtual office hours during the semester. I look forward to discussing your work and progress with you, and I want to help you succeed in any way that I can.

I am always available via email, which is my preferred method of communication. You are welcome to ask questions via email. I may choose to respond to emailed questions in class, if the answers will benefit your classmates.

You can also find me on social media. I am on Twitter at @brianlfrye and Facebook at Brian L. Frye, among many other places. You may also enjoy Ipse Dixit, my podcast on legal scholarship, which features legal scholars talking about their work, among other things. Many of the episodes address issues related to intellectual property. I may suggest episodes that are relevant to the material we discuss in particular classes.

Assignments

Each week, you must read all of the assigned readings. You should be prepared to explain the thesis of each article, offer a critical perspective on the ideas expressed in the article, and discuss what makes the article interesting, if anything. In particular, you should reflect on and be prepared to discuss the questions associated with the class reading.

You will have three assignments in this class: a research project, an essay on an intellectual property object and a research paper.

First, you will complete a research project that will consist of editing a Wikipedia entry relating to an intellectual property subject. In the course of researching your paper for this class, you will learn a great deal about a particular area of intellectual property. This will be an opportunity to share your knowledge with the general public. We will learn how to use and edit Wikipedia, and you will expand and improve one or more existing Wikipedia entries on the subjects you are studying. We will then discuss collectively what you found and what you learned in this project.

Second, you will write an essay on an “intellectual property object,” with a 2000 word limit. This assignment is based on the book A History of Intellectual Property in 50 Objects (2019), which was edited by Claudy Op den Kamp and Dan Hunter. In the book, legal scholars use particular objects to reflect on the social history of intellectual property law. We will read and discuss several essays from the book. Then, you will choose your own “intellectual property object” and write an essay about it.

Third, you will write a research paper on an issue related to intellectual property in some way. I define “intellectual property” very broadly, so you may write about almost anything you like. I encourage you to consider writing about the subject of your restatement entry or your “intellectual property object” essay, or at least to reflect on how writing them informed your understanding of intellectual property.

The preparation of your research paper will take place in several steps.

First, you must email me a short abstract of your proposed paper, identifying your thesis and how you plan to substantiate it. You must submit a draft of your paper to me before Class 12, and schedule an appointment to discuss your draft with me. You must also share your draft paper with one of your classmates for comments.

Class 13 and 14 are reserved for student presentations. Each student must make a brief oral presentation of their paper. The student who read their draft must lead the discussion of the paper, and provide written feedback on the paper to me and to the author.

Your research paper must satisfy the College of Law requirements for an upper division writing course. Specifically, it must “comprise, in total . . . at least 40 double-spaced pages, inclusive of footnotes and endnotes” and “must demonstrate substantial independent research and original thought.” I encourage you to submit a single-spaced document, as I dislike reading double-spaced documents.

Your final paper is due at midnight on the last day of the finals period. Please submit it on Canvas as a PDF.

Grading

Your grade for this class will be based on all of your assignments. Class participation may also affect your grade. The University of Kentucky College of Law has adopted a required average grade policy. Under that policy, the average grade in this class must be between 3.0 and 3.2. The registrar will not accept submitted grades if they fall outside that range. Accordingly, I am obligated to impose a curve on your grades.

Academic Policy Statements

The University of Kentucky academic policy statements are available here. I include this link because it is required by the university.

Policy on Diversity, Equity & Inclusion

The University of Kentucky policy on diversity, equity, and inclusion is available here. I include this link because it is required by the university.

Academic Offenses Rules

The University of Kentucky academic offenses rules are available here. I include this link because it is required by the university. I cannot vouch for the coherence of these rules.

Class Schedule

Class 1: What is Legal Scholarship?

Required Readings:

Questions:

  • Do you agree with Kozinski about what makes legal scholarship interesting and useful? Are those the same thing?
  • How does Murray’s essay affect your assessment of Kozinski’s opinions on legal scholarship, if at all?
  • How does Rubino’s article affect your assessment of Volokh’ judgment, if at all?
  • What is Crawford’s objection to how SSRN determines whether something qualifies as a work of legal scholarship? Is it ok if SSRN occasionally makes mistakes?
  • Should the “article” I wrote qualify as a work of legal scholarship?

Class 2: Intellectual Property Objects

Assignment:

  • Select an object for the subject of your “intellectual property object” essay

Required Readings:

  • Claudy Op Den Kamp & Dan Hunter, A History of Intellectual Property in 50 Objects: Author Guidelines
  • Dan Hunter & Greg Lastowka, Barbie Doll, in A History of Intellectual Property in 50 Objects (Dan Hunter & Claudy Op den Camp eds. 2019).
  • Kara W. Swanson, The Corset, in A History of Intellectual Property in 50 Objects (Dan Hunter & Claudy Op den Camp eds. 2019), at https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3089810

Suggested Readings:

Optional Listening:

Questions:

  • What is an “intellectual property object”? How is an intellectual property object different from any other object? What makes it different?
  • Should an essay about an intellectual property object qualify as a work of legal scholarship?

Class 3: What is the Purpose of Legal Scholarship?

Assignment:

  • Write a draft abstract for your proposed paper.

Required Readings:

Suggested Readings:

Questions:

  • According to Volokh, what kinds of claims should legal scholarship make? Why should it make those kinds of claims? Is he making a claim about what makes legal scholarship good, or about what people expect legal scholarship to do?
  • What does Chief Justice Roberts think legal scholarship should do? Does Kerr agree with him?
  • Why does Rodell object to law reviews? Are his criticisms intrinsic to legal scholarship, or a function of a particular genre of legal scholarship? Why did the qualities he criticizes emerge? Can they be changed? Is he right to criticize them?

Class 4: Legal Scholarship as a Literary Genre

Required Readings:

Suggested readings:

Questions:

  • What do Volokh and Samuelson think makes academic legal writing good? Are there places in which they disagree?
  • Are Orwell’s recommendations universal to good writing? Are there ways in which some of his recommendations might be unwise for students producing legal scholarship to follow? If so, is that a problem?

Class 5: What is Academic Legal Research?

Assignment:

  • Intellectual property object essay due

Required Readings:

Questions:

  • How did you decide on your claim? What kind of research have you done so far? What kinds of research do you plan? How has your thesis changed during your research, if at all?
  • What are Yaphe’s critiques of the advice provided to law students about writing legal scholarship? Do you find them compelling? What does his study suggest about the kinds of legal scholarship students tend to produce?

Class 6: What is the Purpose of Academic Legal Research?

Assignment:

Required Reading:

Required Listening:

Questions:

  • Is Wikipedia a useful tool for legal scholars? Is it an appropriate tool for legal scholars to use?
  • Is Wikipedia an appropriate way for lawyers and legal scholars to provide accurate information about the law to the public? Should the legal profession have a professional duty to ensure that Wikipedia is accurate?
  • Is Murray’s essay an appropriate Wikipedia edit? Is it legal scholarship?

Class 7: Getting it Written

Assignment:

  • Revised abstract for research paper due

Required Readings:

Suggested Readings:

Suggested Listening:

Questions:

  • How does Volokh think legal scholarship should be structured and why?
  • What is the claim of Schlag’s article? How is it structured? How does the structure of the article inform its claim? Does Schlag’s article help you understand the generic form of a law review article? What is Schlag’s article intended to accomplish?

Class 8: Student Legal Scholarship Revisited 

Required Reading:

Requited Listening:

Suggested Readings:

Recommended Listening:

Questions:

  • Why is Stevens’s article one of the best-known and most admired law student notes ever written? Is it consistent with the recommendations for student legal scholarship we have discussed? What is the thesis of Stevens’s article?
  • The Rubin and Heller article is widely admired among legal scholars. Is it legal scholarship? What is the thesis of their article?

Class 9: How to Do Things With Statistics

Required Readings:

Suggested Listening:

Questions:

  • What does Volokh think are appropriate and inappropriate ways of using evidence in legal scholarship?
  • Do these articles represent appropriate ways of using evidence? Why or why not?

Class 10: Academic Plagiarism Norms & Their Discontents

Required Readings:

Suggested Readings:

Suggested Listening:

Questions:

  • Why do academic plagiarism norms prohibit plagiarism of expressions and ideas? Are those justifications realized in the enforcement of those norms?
  • Is plagiarism wrong? Why or why not? If plagiarism is wrong, is it always wrong? Are all of the things prohibited by academic plagiarism norms wrong?
  • If plagiarism is essential to the practice of law, should we teach effective plagiarism in law schools? Is it a problem that law schools prohibit plagiarism, knowing that students will be expected to plagiarize in practice?

Class 11: Lawyers & Legal Scholarship

Assignment:

  • Rough draft of research paper due.

Required Readings:

Suggested Listening:

Questions:

  • Do you agree with Madison’s assessment of Volokh’s claim? Do you agree with the underlying claim itself?
  • If lawyers should do legal scholarship, as well as practice law, what kind of legal scholarship should lawyers do? Should it be different from the kind of legal scholarship that professors do? Is it ok if there are many different kinds of legal scholarship?

Class 12: The Market for Legal Scholarship

Required Readings:

  • Eugene Volokh, Academic Legal Writing: Law Review Articles, Student Notes, and Seminar Papers (2003), VII Publishing and Publicizing
  • Anthony Michael Kreis, Picking Spinach, 50 Loy. U. Chi. L.J. 395 (2018)
  • D. H. Kaye, Dear Editor, 39 J. Legal Educ. 427 (1989)
  • Richard A. Posner, The Future of the Student-Edited Law Review, 47 Stan. L. Rev. 1131 (1995)
  • Eric J. Segall, The Law Review Follies, 50 Loy. U. Chi. L.J. 385 (2018)
  • Ann Bartow, Some Musings About Possible Ways To Improve Law Reviews And Law Schools Simultaneously, April 8, 2008, at http://madisonian.net/2008/04/08/some-musings-about-possible-ways-to-improve-law-reviews-and-law-schools-simultaneously/

Suggested Readings:

  • Bart Sloan, What Are We Writing For - Student Works as Authority and Their Citation by the Federal Bench, 1986-1990, 61 Geo. Wash. L. Rev. 221 (1992)
  • Robert Luther III, Practical Tips for Placing and Publishing Your First Law Review Article, 50 Univ. Richmond L. Rev. 63 (2016)
  • Mary Whisner, Writing For & Publishing In Law Reviews, at https://lib.law.washington.edu/content/guides/lawrevs-top#section-0

Questions:

  • What is the purpose of law journals? What is the purpose of the article selection system? Do law journals reliably select for the quality of legal scholarship? Should we expect them to do so?
  • If there are problems with the market for legal scholarship, what are they? Why can’t the legal academy solve the problems with legal scholarship?

Class 13: Presentations

Class 14: Presentations

Class 15: Presentations