Over on the main page…

They’re having a, um, heated discussion about whether academics, particularly Mark Lemley, is qualified to talk about patent law and policy.

My own view is that I think teaching doesn’t qualify you to do what your subject matter relates to.  I would never hire a professor to draft a patent simply because he’s taught patent law for years (even if he were registered).  I’d never hire a professor to represent me in a personal injury case simply because he’s taught torts.  I’d hire an experienced patent prosecutor and PI attorney, respectively, to do those things.

But the sniping over there on the main page seems to suggest that by teaching patent law or teaching torts, one does not gain knowledge and insight to the subject matter.  There, I have to disagree, and strongly.  I’ll give a personal example to explain why.  As a lawyer (litigated complex commercial litigation, etc., for 15 years before starting to teach 11 years ago) I knew about federal subject matter jurisdiction, and for example dealt with far too many efforts by plaintiffs to fraudulently join defendants, etc.  I was “good” at procedure.

But I have no doubt that, in the twelve years of teaching that subject (and writing a book on it; you should buy Mastering Civil Procedure or recommend it to law students everywhere so I can retire!), I’ve learned far more about procedure than I would have as a lawyer in that same time.  I get hired sometimes in cases to simply fix procedural problems, which confirms my belief.

I think I know more about civil procedure than the vast majority of lawyers with 25 years of experience, in other words.  To say that one only learns about procedure by doing it, in other words, is way wide of the mark.

It also in my view shows that the criticisms of Mark are also off the mark.  I honestly don’t read even half of what he writes (sorry, Mark), but to say that because he is not registered to file an application means he can’t write about and have a valued opinion about patent law is silly.

Finally, I think it is beyond absurd to suggest — as Mr. Wegner does — that clerking at the CAFC makes you qualified to teach patent law.  That in my opinion simply doesn’t jibe with my own actual experience there last year, clerking for Chief.

Anyhow, a Thursday afternoon rant over. I’m going to get a beer and some wings with a fellow Arizona Wildcat alum.  We’ll talk about “next year,” like UA fans always do.

About David

Professor of Law, Mercer University School of Law. Formerly Of Counsel, Taylor English Duma, LLP and in 2012-13, judicial clerk to Chief Judge Rader.

11 thoughts on “Over on the main page…

  1. 5

    I think it interesting (but not all that surprising) that no one wants to dig too deeply into the ethical considerations afoot.

    1. 5.1

      There’re not many ethical issues I see, honestly, at least in the legal ethical sense. The notion that blogging with an agenda (if true about anyone) somehow implicates a person’s fitness to practice law would, I think, be rejected as frivolous by a court or bar association.

      Now, the other kind of ethics/morality/etc. — not my area.

      1. 5.1.1

        Prof. Hricik, it is not merely “blogging with an agenda” that I am talking about.

        There is nothing frivolous with using a social media mechanism to advocate, and in that medium engaging in routine and persistent behavior that would be sanctioned if that behavior would be attempted in a courtroom.

        This is not merely a matter of civility, nor even one of accuracy. There are certain advocates that clearly cross the line, that clearly engage in what can only be called deceptive and malicious behavior.

        The use of social media tools – including blogs – should not be confused with any first amendment rights when it is clear that the judiciary is leaning on those tools for actual matters of law.

        I make it abundantly clear that I am speaking to those that have existing ethical bounds. Those bounds do not disappear because advocacy has moved to a different forum. Those bounds are still very much in place – including the rather delicate bound of reporting another person.

  2. 4

    David, the main thrust of the “opposition” to Lemley is the general view that he is anti-patent. His supporters point to the fact that he litigates. But David Boundy hit the nail on the head when he asked how many of these academic types have ever represented a patent owner in a dispute.

    If Mark is going to have any credibility for most of us, he is going to have to take cases on behalf of patent owners so that he can see the other side.

    1. 4.1

      I think he’s argued at least two for patentees at the CAFC, so… maybe your assumptions are wrong?

  3. 3

    “Finally, I think it is beyond absurd to suggest — as Mr. Wegner does — that clerking at the CAFC makes you qualified to teach patent law.”

    Especially when they’re so often wrong.

    1. 3.1

      Especially when they’re so often wrong.“:

      LOL – the irony being just how often you are wrong, Random Examiner…

    2. 3.2

      I disagree that they’re so often wrong. I think they’re right far more often than I’d be, to put it one way!

  4. 2

    A post “over on the main page” that I had been thinking about posting here (to focus on the ethical portions that I speak of):

    Prof. Sichelman,

    With all due respect, the criticism that you may seek to blunt is often well deserved.

    The title of “academic” is not a “I can say anything I want” card.

    If nothing else, the additional role that an academic and practitioner in parallel may assume should indeed raise the bar for items put forth under that (oft assumed) increased heft that the person wants to have by indicating their positional status.

    On a related but admittedly tangential view, these thoughts have been brewing for some time:

    For certain professions, ethics and (governing ethical rules) exist and exist regardless of the forum ( i.e. especially for attorneys given our proximity and influence on the law) in which any discussions that may sound in advocating take place. Now different actors can take a variety of roles in these discussions/advocating.

    – The individual (pure and simple)
    – The journalist
    – The academic
    – The attorney.
    – Some combination of these roles.
    – A blog operator – and one operating with repeated editorial control down to individual blog post editing.

    Perusing the Scotusblog, I happened up on a series of videotape discussion with Prof. Kerr. I posted on the main patently-o blog site a post reflecting some thoughts on that series.

    So while this is posted on this thread, I recognize the post perhaps may be better placed on the Hricik ethics side of the blog.

    What are the limits an attorney can take in his acts of advocacy when those acts are tied to the modern social media vehicle of blogging? Are relying on “anecdotes and feelings” adequate when a piece is written advocating legal change? Sure, everyone recognizes this is easily done and an opinion does not mean that the opinion must be an informed opinion, but is there a difference between opinion and advocacy when the advocacy takes on the mantle of an actor who identifies himself in different roles? Should such opinion pieces by posted without the person and role identifiers, if the weight of those identifiers are truly desired not to carry an impact with the audience? Is this not an ethical consideration of an appearance of impropriety, to use the station of one’s office to further or give extra weight to an opinion and then hide behind a false front of “it’s only an opinion”?

    It can be taken that such blogging by an attorney is advocacy that falls under the ethical rules binding attorneys. In this regards, what an attorney can post should be taken as more limited than what an individual (pure and simple) would be able to post under that individual’s first amendment rights.

    Leaving aside the other impacts of shared roles, the question of ethics that I am curious about is the ethics a blog operator may have. Not just any blog operator. What about a blog operator that is also an attorney, and is also an academic, and is also an editor of a blog that exercises editorial control of a blog that extends to control (and yes even editing within an individual) comment?

    Now the ethical rule that I specifically have in mind is the duty to report (i.e. ABA Rule 8.3(a)). When a person in the course of advocacy (on a blog) behaves with such a large degree of consistent malfeasance that a reasonable view that a substantial question that that attorney’s honesty, trustworthiness or fitness as lawyer in other respects has arisen, does the blog operator – in the blog operator’s mixed roles (including ethical bindings under the ABA), and having knowledge of that person’s identity – have an ethical duty to report to the appropriate authority so that that authority may initiate a disciplinary investigation? We are talking of actions that extend far beyond any single isolated incident and clearly exhibit a pattern of deceit and duplicity in legal matters. Is there an obligation? Is failure to report a violation in itself? Is the professed intent of the violator to impact real law a factor to be considered? Is the type of violation sounding in fraud in the portrayal of legal issues (or the admitted or clearly fraudulent portrayal of others’ views) a factor to be considered?

    Does the combination of roles play a factor? It is clear that different roles carry with them different ethical standards. The standards of journalism are in reality quite low (many would consider excessively low). The standards of academics seem to be quite, shall we say elastic. The standards for attorneys tends to be (at least as written) to be more limiting. Blog operators exercising editorial control have an apparently different standard than those not exercising editorial control. I have in the past proffered my view that a combination role involved in the legal realm should have a heightened role, higher than either individual position. Would it be logical to expect a further multi-role position to carry an even more heightened role?

  5. 1

    I am not exactly sure “discussion” applies, as it appears to be more of a case of more than one such “discussion” underway – and those are on only slightly related topics…

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