Legal Commentary

Why Studying Law is So Hard:

By David Post

Now that it?s exam season, and I?m facing the prospect of reading 100 Intro to IP exam answers, I confront again the great puzzle: What is it about the Law that is so difficult for people to ?get?? I think I have the answer to that. The Law is hard ? uniquely hard, I?m tempted to say ? because you demonstrate your expertise not so much by displaying what you know, but by displaying what you don?t know.

Let me explain ? and to you law students out there, if you get this, you?re in good shape, so pay attention. We call it ?issue-spotting? ? finding the questions that you can?t answer. Here?s a simple example, one that might appear on an IP exam (but which has precise analogues throughout the entire law school curriculum).

?John writes some poems. He sets those poems to music, using the music that Johnny Greenwood wrote for the film ?There Wll be Blood? (without authorization from Greenwood, or whomever owns the copyright). Jane hears the songs and reproduces them (on a CD, say) without John?s permission. Question: Does John have a cause of action for copyright infringement against Jane??

Now, here?s the (relatively) easy part. If you know any copyright law at all, I?d expect a paragraph like the following:

To have a copyright infringement claim, John must show that the songs he composed are protected by copyright. Sec 103 of the Copyright Act says that ?protection for a work employing preexisting material in which copyright subsists does not extend to any part of the work in which such material has been used unlawfully.? John?s songs clearly ?employ[ed] preexisting material in which copyright subsists? ? Greenwood?s music. Therefore, it follows that protection for John?s songs ?does not extend to any part of the work in which such material has been used unlawfully.?

So far so good ? that?s a good start, the sort of thing I would expect from pretty much anyone who has studied any copyright law. All I?ve done is to find and quote the statutory provision relevant to the problem.

Now comes the part that separates the OK answers from the really good answers:

Because John used pre-existing material (Greenwood?s music) unlawfully (by reproducing the music in his work without permission of the copyright holder), he has no copyright in ?any part of the work? in which Greenwood?s music was used. What does that mean? In what ?part(s)? of John?s work did he use Greenwood?s music? The ?correct? answer is: I?m not sure. One could argue that Greenwood?s music was used unlawfully throughout John?s songs, and that he has no copyright protection at all for his work (and therefore no cause of action against Jane). On the other hand, one could argue that he only used Greenwood?s copyrighted work in the ?music part? of his songs, and not in the ?lyrics part,? and that he therefore has copyright protection for the lyrics (and a cause of action against Jane for reproducing the lyrics).

So the right answer is: ?I don?t know? ? not just ?I don?t know,? but ?I don?t know because I have reached this point in the application of the law to these facts where I can see an argument on both sides.? As it always is, on lawschool exams. Spotting the issue. This is what distinguishes good lawyers from not-so-good lawyers ? not the ability to give the right answer (Yes or No), but the ability to identify very precisely what it is he/she doesn?t know. In the real world, the good lawyer will now go out and research the law under section 103 to see if this scenario has come up before and been interpreted by the courts, and what they?ve held. Chances are, when she?s done this, there will be additional questions/issues that are generated ? as one issue gets resolved, another one emerges. That?s the nature of legal questions ? law, as I?ve explained elsewhere, is a fractal system, meaning that an infinite number of such sub-questions can be contained within the finite space of a single question.

I?m convinced that this is what many students find inscrutable about the law ? on an anthropology exam, or a history exam, or a biophysics exam, you?re trying to show how much you know about the subject matter (and therefore to hide the questions the answer to which you don?t know). In law, it?s the opposite ? instead of running away from the things you don?t understand, you actually have to highlight them, because that?s where the action is, and that?s how you demonstrate that you really understand the subject matter at hand. It?s very strange, and very counter-intuitive, but it is something that all good lawyers have to know how to do.

Full post as published by The Volokh Conspiracy on December 17, 2009 (boomark / email).