Changing Legal Education Needs to Mirror the Changes in the Legal Profession

Many advocates have been calling for change in legal education this past year, focusing on the debt of students, the effect of Big Law on the practice, the declining legal job market, the value proposition for law school, the need for better experiential learning and a variety of other topics. Among the leaders worth following are Bill Henderson, Nancy Rapoport, Brian Tamanaha, and Richard Suskind.

As part of the Chase College of Law strategic planning process, I recently entered the fray, focusing on one aspect of the changes to the legal practice that I had not seen fully addressed in the academic literature – namely the increasing automation of legal services provided by solo and small to medium sized law firms.

The article is: Legal Education in Disruption: The Headwinds and Tailwinds of Technology.

It is available at SSRN: http://ssrn.com/abstract=2040560. You can download the entire article directly here.

Abstract:
By harnessing improvements on communications and computational systems, law firms are producing a revolution in the practice of law. Self-help legal manuals have transformed into sophisticated interactive software; predictive coding can empower clients to receive sophisticated legal advice from a machine; socially mediated portals select among potential lawyers and assess the quality of the advice given; and virtual law firms threaten to distintermediate the grand edifices of twentieth century Big Law. These changes may profoundly restructure the legal practice, undermining the business model for many solo and small firm practices.

This paper focuses on the implications of these profound disruptive changes. It looks at the expectations the market may place on future lawyers and by extension the training necessary for lawyers entering the practice of law. The final section reflects a suggested curriculum and programmatic redesign, highlighting one possible future legal educational model, complete with acquiescence to existing constraints found in American Bar Association and other accreditation regimes.

Part one of the article tracks the changes that automation is bringing to the legal profession from self-help online tools to predictive document drafting and other innovations. It analyzes the potential of the virtual law firm, unbundled (or specialized) legal services and the development of virtual law firm networks that will grow into the standard for small firm practice.

Part two translates these changes for legal education. While much of the core subjects taught in law school today will remain the same (i.e. Contracts, Torts, Property, Civil Procedure, Constitutional Law, Evidence, Corporation, Tax, etc.) much else needs to change.

  • Like the other advocates for skills training, the article emphasizes clinical and field placement education for students.
  • Like advocates for better instructional design, it calls for law school to each subject like logic and communication skills explicitly rather than hoping that students will glean these skills from the first year classroom discourse.
  • It changes the focus on professionalism by recognizing that law is also a business, requiring law schools to prepare graduates with courses and training on the business of lawyering (including accounting, human resources, business development, legal business ethics, marketing, leadership and management training).
  • It also emphasizes that 64% of law practice is done for business entities and an additional 10% of attorneys work in-house. So the emphasis of law schools should better reflect the kinds of lawyering that are actual taking place. While this does not suggest abandoning litigation or the teaching of how to serve individuals, it requires a more accurate balance so graduates are less surprised by the environment in which they practice law.
  • Finally, it highlights that the nature of business has become global and technical so courses on international business, intellectual property and other fields relevant to the success of one’s clients should comprise the electives. Moreover, the proposal recognizes that many of these courses are better learned from the disciplines where the clients are trained, so interdisciplinary programs with certificates and even joint degrees should be encouraged.
  • The trade-off means that fewer credits and course hours are expended on the core subject matter law school teaches. This will not be a problem since the measure of seat time is a poor approximation of a student’s learning or competency. Instead, competency testing for both skills and knowledge should be integrated throughout the curriculum, allowing students to move at their own pace and demonstrate readiness to leave law school using something more precise than a six-semester schedule.

The paper is a draft, and I truly look forward to the conversation it generates. I would appreciate feedback and hope to post additional blogs on the dialogue as advocates and critics law school incorporate the changes into small firm practice into the debate.

Georgia State Electronic Reserves and Copyright Ruling

Guest Blog by John Schlipp,[*] Intellectual Property Librarian, W. Frank Steely Library; schlippj1@nku.edu 

Not too long ago, headlines in the news reported of college students and homemakers taken to court by the recording industry for noncommercial file sharing of a small number of MP3 music files. Although officially illegal, some of these cases could be considered small change compared to piracy and copyright infringement issues of greater magnitude. Please understand that I am not condoning piracy. However, from a business point of view, one might question the return on investment by the Recording Industry Association of America for pursuing minor infringements. Indeed, discussions from intellectual property scholarly communities have debated whether these and other types of alleged infringements constitute piracy or fair use. One need only read the headlines to see that academia is not immune from the copyright piracy debate: “Are College Professors and Librarians Digital Pirates?;” “Professors get ‘F’ in copyright protection knowledge;”  and most recently a triumph for educators as, “Judge sides with GSU on copyright fight.”

As an intellectual property librarian directing the new IPAC (Intellectual Property Awareness Center) at Northern Kentucky University’s Steely Library, I have been following Cambridge University Press et al. v. Patton et al, the GSU (Georgia State University) case, since its inception in 2008.[i] For those unfamiliar, this case deals with the practice of librarians posting class readings for instructors as electronic reserves on password restricted content management sites such as Blackboard and determining at what point such postings are fair use rather than infringement. On May 11 2012, Judge Orinda Evans of the U.S. District Court for the Northern District of Georgia ruled that virtually the entire alleged infringements in this case were fair use. This is a victory largely for librarians, educators, and fair use, but a defeat for publishers.  Since librarians and educators must still work with publishers for the content they need, it is almost certain that the publishers will appeal this case.

I coach instructors about fair use and copyright in the classroom, as well as copyright from a creator point of view. Usually their preconceived beliefs about fair use and instruction range from excessively cautious (as they are intimidated by some misleading copyright notices posted by publishers and other media producers) to overly oblivious (believing that everything copied is fair use for education). Moderation is the exception. This tells us that, on the one hand a larger group of educators relinquish much of their lawful fair use opportunities for instruction, while others defy the fair use doctrine which could result in copyright infringement.[ii]

Kenneth Crews (legal copyright expert) and author of Copyright Law for Librarians and Educators, suggests that we can only benefit from fair use by taking control and understanding our legal rights as copyright owners and copyright users. With this awareness, we can be familiar with alternatives that the law allows and make choices about copyright that best advances our objectives as teachers, learners, and information professionals.[iii]

The doctrine of fair use within Section 107 U.S. Copyright Law, allows an unspecified limited reproduction of copyrighted materials related to classroom use. Those of us in education often refer to fair use guides from authorities such as Kenneth Crews at the Copyright Advisory Office of Columbia University Libraries http://copyright.columbia.edu/copyright/ which provides a defacto checklist to determine whether or not our educational use is fair use.

How does all of this apply to librarians?  As more college students receive their class supplemental readings from library electronic reserves on online content management systems, such as Blackboard, librarians and faculty are under scrutiny from publishers. A growing number of educators have gone so far as to create and promote Open Access journals (often with Creative Commons notices) to share their works for classroom instruction or other noncommercial applications. Textbooks may not be too far behind this new distribution model as discussed in an opinion piece targeted to Academic Publishers about Open Access in the Chronicle of Higher Education in April 2012 @ http://chronicle.com/article/Hot-Type-An-Open-Letter-to/131397/ .

Guidelines have existed to support librarians and educators since 1976 when the Agreement of Guidelines for Classroom Copying in Not-for-Profit Educational Instructions with Respect to Books and Periodicals were published in House Report 94-1476. Since then other guidelines, such as the American Library Association’s Model Policy Concerning College and University Photocopying for Classroom, Research and Library Reserve Use in 1982 and the 1991 federal court decision in Basic Books, Inc. v. Kino’s Graphic Corp., 758 F. Supp. 1522, 1526 (S.D.N.Y. 1991), have codified conservative safe harbors which most educators follow. Other guidelines for the digital world have also been introduced, such as CONFU (Conference on Fair Use associated with a 1995 report on the National Information Infrastructure), which never garnered the same support from publishers as the former guidelines.
A new Code of Best Practices in Fair Use for Academic and Research Libraries from the Association of Research Libraries (ARL) was introduced earlier this year. It crafts a new guide to address digital needs unthought-of when the earlier guidelines were created. Many fair use scholars have criticized the previous guidelines as too restrictive for educational use, whereas others argue that the newer Code is too laissez-faire. Hopefully the recent GSU case decision and the Code will offer educators a basis to make an informed decision and risk analysis that considers the law’s fair use flexibility for librarian and educators.

Why should educators be concerned about copyright and other intellectual property issues?

  • Virtual presence on the Web places small-to-midsized colleges at risk with larger institutions of higher education.
  • Educators must set an example for our students to respect intellectual property.
  • To protect our colleges and faculty/staff from lawsuits and other legal inconveniences.
  • The awareness of copyright compliancy with fair use (and the TEACH Act for online courses) are good preventive measures for all of us, including our students.
  • Respecting copyright ensures resource innovation and protection for both creators and consumers of copyrighted works.

To foster these points, more colleges are offering their faculty and students support with institutes such as the NKU Chase Law & Informatics Institute and Steely Library’s new IPAC. The IPAC will educate creators and consumers of intellectual property about issues such as copyright & fair use, plagiarism, patents & trademarks, and other resources and support related to the legal and ethical aspects surrounding intellectual property. Diverse campus and community constituents served may include, but are not limited to, students, educational instructors and librarians, authors and researchers, entrepreneurs and small business owners, inventors and scientists, musicians, visual artists, and others.

The new IPAC plans to accomplish its mission by providing associated information resources, workshops, conferences, an online intellectual property discussion support group, social networking access, and basic updates on legal intellectual property developments to support educators and the community. Why not help us with a survey as we build our new IPAC at Steely Library? Your input and specific needs count.  Tell us what programs and resources would support your intellectual property awareness needs. See http://creativethinking.nku.edu/ to complete our brief survey. As educators, we continue to inform our campuses and regional communities about the dual aspects of intellectual property (as creators and as consumers). In doing so, we build awareness and respect for the intellectual works of everyone.


[i]  Howard, Jennifer, “Publishers Sue Georgia State U. for Copyright Infringement,” Chronicle of Higher Education, April 16, 2008, http://chronicle.com/article/Publishers-Sue-Georgia-State/40816, accessed May 17 2012. There are two other federal copyright cases which librarians and educators are also watching very closely: Association For Information Mediat and Equipment et al v. The Regents of The University of California et al; and Authors Guild et al. v. HathiTrust et al. These cases deal with similar instructional issues which involve video content streaming for classroom support and a public accessible virtual collection of over nine million digitized works from college libraries. Including GSU, these cases will ultimately affect how educators utilize fair use and follow related copyright laws in the classroom.

[ii] John Schlipp, “Coaching Teaching Faculty: Copyright Awareness Programs in Academic Libraries,” Kentucky Libraries 72 (Summer 2008): 18-22.

[iii] Kenneth D. Crews, Copyright Law for Librarians and Educators: Creative Strategies and Practical Solutions,(Chicago: American Library Association, 2012), page xii.

[*] John Schlipp is an Associate Professor of Library Services and manager of the new IPAC (Intellectual Property Awareness Center) at Steely Library, Northern Kentucky University (Highland Heights). Formerly he served as Patent & Trademark Librarian at the Public Library of Cincinnati. Prior to receiving his MSLS from the University of Kentucky in 2000, he worked in the communications industry for 15 years. Schlipp’s contributions include: articles and book reviews; an intellectual property awareness program for teens and young adults entitled Creative Thinking; associate editor of the Encyclopedia of Northern Kentucky (University Press of Kentucky, 2009), and a chapter in the textbook Distributed Learning Librarianship (Sharon Almquist, ed., Libraries Unlimited, 2011).

Kentucky remains special as Sixth Circuit affirms bourbon’s dominant appeal.

Just as “all bourbon is whiskey, but not all whiskey is bourbon,” it is equally true that all trade dress constitutes trademarks but not all trademarks are trade dress. The U.S. Court of Appeals for Sixth Circuit made a series of fine distinctions recently in upholding an injunction against Jose Cuervo tequila from adopting a confusingly similar form of trade dress. The Sixth Circuit has found that the red wax seal on the Maker’s Mark bourbon whiskey is protected trade dress. The opinion by Judge Boyce Martin Jr. celebrated the uniqueness of bourbon and by extension easily afforded trade dress protection to a leading manufacturing.

Maker’s Mark had been using the red dripping wax seal since at least 1958 and had federally registered the trade dress. In 1995, Jose Cuervo began producint a premium tequila, “Reserva de la Familia.” In 2001 Cuervo modified the seal on the premium tequila to include the red dripping style of seal.

Two years later Maker’s Mark brought a lawsuit to stop the competition, suing Casa Cuervo S.A. de C.V., Jose Cuervo International, Inc., Tequila Cuervo La Rojeña S.A. de C.V., and Diageo North America, Inc. During the litigation, Cuervo reverted to its original red straight-edged wax seal but continued to seek cancellation of the Maker’s Mark trademark.

The litigation first established that the Maker’s Mark wax seal was not functional. It does not, in fact, seal the bottle. Other bourbon distilleries such as Buffalo Trace still use wax as a functional sealant, but the red dripping seal has no function. Secondly, the litigation established that for the market of distilled spirits, the red dripping seal served to distinguish Marker’s Mark from other brands.

The district court found and the Court of Appeals affirmed “that the Maker’s Mark red dripping wax seal is an extremely strong mark due to its unique design and the company’s singular marketing efforts.”

The Wall Street Journal enjoyed the flavor of the opinion.

Judge Martin’s opinion includes some interesting points:

Justice Hugo Black once wrote, “I was brought up to believe that Scotch whisky would need a tax preference to survive in competition with Kentucky bourbon.” While there may be some truth to Justice Black’s statement that paints Kentucky bourbon as such an economic force that its competitors need government protection or preference to compete with it, it does not mean a Kentucky bourbon distiller may not also avail itself of our laws to protect its assets. This brings us to the question before us today: whether the bourbon producer Maker’s Mark Distillery, Inc.’s registered trademark consisting of its signature trade dress element—a red dripping wax seal—is due protection, in the form of an injunction, from a similar trade dress element on Casa Cuervo, S.A. de C.V.’s Reserva de la Familiatequila bottles.  We hold that it is.  The judgments of the district court in this trademark infringement case are AFFIRMED.

The name “bourbon” at that time meant whiskey made from mostly corn in Kentucky or points west. But it was likely not until “sometime between 1823 and . . . 1845” that Dr. James Crow “perfect[ed] the sour-mash method of whiskey-making”—the dominant process in use today that, when coupled with aging in charred new oak barrels, produces modern bourbon’s familiar caramel color and distinctive taste.

Congress in 1964 designated bourbon as a “distinctive product[] of the United States,” 27 C.F.R. § 5.22(l)(1), and prescribed restrictions on which distilled spirits may bear the label “bourbon.” Federal regulations require that bourbon whiskey to, among other things, be aged in charred new oak barrels, contain certain proportions of mash ingredients, and be barreled and bottled at certain proofs. § 5.22(b). Importantly, whiskey made for consumption within the United States cannot be called bourbon unless it is made in the United States. § 5.22(l)(1).

The Court notes that ninety-five percent of bourbon is made in Kentucky. While the Court provides a footnote regarding the other five percent, as a member of a Kentucky law school, I’ll refrain from reproducing that here.

Since the injunction does not prohibit Cuervo from using a red wax seal located on the same areas of the neck of its bottle. The injunction applies merely to the red wax seal that includes the stylized drips of the Maker’s Mark trademark. For companies hoping to imbue support from the decision, trade dress remains a useful, but extremely limited, marketing strategy.

The decision was consistent with recent Supreme Court decisions such as Walmart Stores, Inc. v. Samara Bros., Inc. in which the Court upheld but restricted the role of trade dress under trademark law. Earlier decisions by the Court in Qualitex and Two Pesos, Inc. v. Taco Cabana, Inc. had been much more expansive, so the narrowing has been a better balance between competitors which better serves the public.

Ethics in Informatics – Assessing ABA’s Ethics 20/20 Commission

May 4, 2012 the NKU Chase Law & Informatics Institute presents an ethics program focusing on the proposed changes to the ABA Model Rules of Professional Responsibility and similar changes to SEC Guidance for disclosure of cybersecurity risk. Dean Dennis Honabach and Professor Jon Garon will lead the conversation.

In 2009, The American Bar Association created the Ethics 20/20 Commission (“Commission”) to “perform a thorough review of the ABA Model Rules of Professional Conduct [(“MRPC”)] and the U.S. system of lawyer regulation in the context of advances in technology and global legal practice developments.”[1] The Commission held hearings and developed draft statements regarding a number of topics, including the effect of technology on a lawyer’s duty of confidentiality and client development.[2]  Having completed its review on several key proposals, they will be brought to the ABA for approval in August 2012:

The ABA Commission on Ethics 20/20 is pleased to release for comment by April 2, 2012, along with a Cover Memo from Co-Chairs Jamie S. Gorelick and Michael Traynor, final revised drafts of Commission Proposals scheduled to go to the ABA House of Delegates in August 2012.  These six revised draft proposals cover the subjects of Technology (Confidentiality), Technology (Client Development), Outsourcing, and Uniformity/Mobility (including Model Rule 5.5 and Practice Pending Admission), Admission by Motion, and Model Rule 1.6 (Duty of Confidentiality).

In addition to the materials provided by the ABA, we have created a Summary Analysis as well as a CLE Powerpoint presentation.

To summarize the program:

The practice of law has largely gone digital in the past decade. Remote access to one’s office, reliance on smart phones to share data, email and social media to communicate with clients, and other emerging technologies to conduct overseas cloud-based outsourcing or operate virtual law offices have transformed the mechanics of practicing law.

The American Bar Association’s Commission on Ethics 20/20 is examining technology’s impact on the legal profession. In proposals recommended for adoption this year, the Commission proposes adoption of a new Rule 1.6(c) which would require that a “lawyer shall make reasonable efforts to prevent the unintended disclosure of, or unauthorized access to, information relating to the representation of a client.” While this duty has existed under the prior rules, the modifications make clear that this affirmative duty extends to data privacy, security and reliability.

These proposals also address issues of screening electronic information accessible to a law firm assure that confidential information known by a personally disqualified lawyer remains protected from inappropriate access by other attorneys; an affirmative duty to “keep abreast of changes in the law and its practice, including the benefits and risks associated with technology;” and many others.

Not to be outdone, the Corporate Finance Division of the Securities and Exchange Commission has taken steps of its own to require greater awareness, disclosure and reporting of issues relating to technological knowledge held by a company – including its lawyers. The guidance identifies that “a number of disclosure requirements may impose an obligation on registrants to disclose such risks and incidents. In addition, material information regarding cybersecurity risks and cyber incidents is required to be disclosed when necessary in order to make other required disclosures, in light of the circumstances under which they are made, not misleading.” Lawyers drafting these disclosures – and lawyers dealing with the risk assessment for their clients – as well as regarding their own practices – have an increasingly external standard of care and responsibility to meet the cyber-risks inherent in the modern digital practice of law.

While it is likely that many of the revised Rules of Professional will be adopted, the changes primarily codify the existing duty to maintain a lawyer’s ongoing duty to remain competent. These materials are intended to assist with that effort by providing an update to the ethical rules and the technologies at the heart of these changes.

The Commission has distributed its recommendations and solicited final comments through April 2, 2012. Final hearings were held April 13-14, 2012 and the Commission will be releasing the final versions of these proposals for approval at the August 2012 ABA Annual Meeting.