Academic journal article Washington and Lee Law Review

The Bulls and Bears of Law Teaching

Academic journal article Washington and Lee Law Review

The Bulls and Bears of Law Teaching

Article excerpt

I. Introduction

[Y]ou eat a bull, and a bear eats you.1

As a rule, the terms "bull market" and "bear market" refer to conditions on Wall Street. Bulls are good, bears are bad. But things other than stocks can be in a bull market or a bear market, too; there has been a bull market in absurdity, for example, for as long as anybody can remember.2 If something-call it χ^sup 3^-were in a bull market, we might say that χ is rallying; that χ is hot; that the smart money is liquidating everything and plowing its assets4 into χ. If, by contrast, χ were in a bear market, then it might be time to avoid investing in ? and perhaps to invest in its opposite, "not χ." The trick, of course, is knowing whether one is running with the bulls or the bears. Still, because life is cyclical, almost everything may be observed to have bull markets and bear markets. This Essay seeks to demonstrate that law teaching is no exception.

To generate the data that lies at the heart of this Essay, I catalogued (by subject) almost every Article, Book Review, Book Note, Comment, Essay, Note, Recent case, Recent Publication, and Recent Statute published in the Harvard Law Review between and including the years 1946 and 2003. I performed this Herculean labor in search of a relationship between the subjects on which faculty chose to write and the subjects on which students chose to write. I suspected that such a relationship existed, and what is more, I suspected that the relationship would be an interesting one-even a predictive one. But I wanted proof.

I found it.

II. Methodology

There are three kinds of lies: lies, damned lies and statistics.5

A. Developing the Thesis

As a junior scholar of intellectual property law (and in particular, copyright and trademark law), I long have imagined that while senior scholars were busy churning out articles on such rarified subjects as constitutional jurisprudence, their students were exploring education law, election law, health law, and yes, intellectual property law-what I imagined to be the waves of the future. If the laws of economics applied to law schools,6 one would expect that if students were increasingly interested in, say, intellectual property law, then faculties would "wise up" and seek to hire professors qualified to teach intellectual property law.8 That is, if student demand for intellectual property law exceeded faculty supply of intellectual property law, faculties would hire in the area until the gap between supply and demand had narrowed or disappeared.9 In Wall Street terms, there would be a bull market in intellectual property law. This would be useful information for people who thought they might wish to become law professors in the foreseeable future. If, for example, one knew that there were a bull market in intellectual property law, but a bear market in, say, admiralty law, she could direct her studies or her law practice accordingly, thus increasing her chances of being hired on the tenure track. She could, in Wall Street terminology, go "long" intellectual property while "shorting" admiralty.

When I began to think of how one might prove this thesis, so as to offer this public service, I reflected on the number of students who plead with me each year to advise them as they write their Notes on issues of copyright or trademark law. Add to this number the students who wish to engage in research, for credit, on issues of copyright or trademark law, and the sum is more than one untenured professor can reasonably absorb.10 A colleague of mine teaches and writes in the area of patent law; she too faces the pleading, the pressure to say "yes"-the only differences being that: (a) she has tenure; and (b) her supplicants have science and engineering degrees. When it comes to intellectual property law (at Emory, at least), student demand for faculty "attention" far exceeds the available supply.11 Anecdotal evidence (i.e., "I hear tell") suggests that Emory is not the only law school facing such a shortage. …

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