December 04, 2007

Prof. Prescott on Academia, Community, and the Path to Professorhood

By Eric Reed

Professor James Jondall (J.J.) Prescott wants to change the way you think about academia, and in his second year teaching at the University of Michigan Law School he’s off to a good start.

Professor Prescott is the driving force behind the newly instituted Research Lunches, a series of brown bag lunches at which students showcase work they’ve done and receive feedback from other students and professors in a community environment. The brown bag lunches are a part of Michigan Law’s newly created initiative to help students interested in entering legal academia, particularly those with an eye to becoming professors down the road. According to Prescott, Professor Joan Larsen heads the yet un-named program, which already has several components -- either in place or planned -- that help students and alumni adapt to the demands of the academic marketplace. The brown bag lunches, though, try to accomplish something special.

“We already do a few things for people who are interested in legal academia,” Professor Prescott said. “I am not trying to reproduce those… instead, I want to create a forum in which students with similar research interests can find each other as peers, as potential co-authors and as future colleagues.”

At Professor Prescott’s Research Lunches, students can showcase any form of legal scholarship that they are or have been working on according to Prescott. The sessions will focus on a give and take, he explained, with students spending the first portion of the hour presenting their work, and the latter portion of the lunch dedicated to questions and answers, as well as direct feedback from both students and professors in the audience. Prescott described the format as “a safe place for students to try out ideas,” and hear thoughts or criticisms before they have to risk consequences in the open marketplace or with publication.

“It’s not intended to be a seminar. They’re not going to be graded,” Professor Prescott said, explaining that one of the goals of these lunches is to give students a risk-free working space to try out ideas in the same way that academics do. “We spend a lot of our lunches doing this kind of thing,” Prescott said, referring to faculty members. “We have two or three lunches per week.”

Professor Prescott explained that the format of the brown bag series was chosen very deliberately to mirror the professional lifestyle of a professor. This is, he said, a part of the larger program’s effort to help students both develop the skills and background they will need to enter professional academia, as well as to help students see that life as a professor is not just about giving lectures and “knowing the case better than anyone else,” but about research, ideas and collaboration.

“Because this is a lunch specifically about research, it’s targeted at people who want to be research faculty, as opposed to legal practice or clinical faculty,” Prescott said. “But, of course, everyone is welcome.”

This idea of professional collaboration is another major goal of the lunch series, and an aspect of professional life that Professor Prescott is particularly hoping to communicate. “With any luck we’ll have two to four of these lunches per semester where I will not be doing much besides hosting and introductions…. This is really about a community of students with similar career or intellectual interests getting together to work on ideas. The short term goal is just to get the community started, and I hope it will be a community for students not just over one semester but over the course of their three years at Michigan,” he said.

The idea behind this goal of community is to help people connect with others who share similar interests in order to spread ideas and perhaps encourage collaboration. “Maybe the paper that ultimately gets written will not be the paper that was presented but a co-authored paper that develops out of a subsequent discussion,” he said, expressing one of his hopes for the Research Lunches’ results.

Helping students develop work, whether as pure research or directly for publication, is an important part of helping those students prepare to look for work as professors and academics after school, according to Professor Prescott.

“It used to be that you basically got good grades in law school, you clerked for a year or two, and then you went off to teach somewhere…. It’s no longer sufficient to get good grades and a good clerkship, but it’s also no longer necessary,” Professor Prescott said. “As more people with different experiences and backgrounds seek teaching jobs, candidates are expected not just to show that they have good ideas, but also to demonstrate that they can produce quality results.”

This new competition in legal academia can often look for applicants who boast multiple publications by the time they seek a job, and Professor Prescott explained that he had that in mind when he started the Research Lunches at Michigan. That said, Prescott emphasized that the research lunches aren’t exclusively for people who want to contribute or present.

“The goal is for everybody who attends the lunch regularly, at some time, to present something, although that’s not required,” Prescott said. “1L’s and everybody who’s interested should try to come…. The worst case scenario is that a few of the people who come to the lunches sit, they eat their lunch, and they get to see something different.”

Speaking as someone recently out of the academic job market, Professor Prescott said that he hopes people do come even if they just want to see that something different for an afternoon. Hopefully they’ll leave with a new perspective on what being a professor is all about, and maybe a little more excitement about the idea of creating a work of their own.

October 30, 2007

Copyright Conundrum: An Interview with Professor Litman

By Sarah Rizzo

Perusing the CD aisles of Borders or Barnes & Noble, it is impossible not to notice the baroness of what used to be a sea of music browsers. In the mid- to late 1990s, newly emerging technologies like Napster brought on a short-lived heyday of free music. Indeed, few took advantage of these technologies more than college students before industries, lawyers, and law professors started paying attention.

Today, the legacy of Napster remains with iTunes and YouTube occupying much of our time on computers, iPods, and iPhones. Whatever one’s position, everyone can agree that copyright law has been changing as rapidly as technology.

The RG sat down with Michigan Law’s copyright guru, Professor Jessica Litman, in search of guidance for aspiring law professors and to hear about her contributions to an area that is close to many of our desktops.

Res Gestae: When did you know you wanted to be a law professor and why?

Professor Jessica Litman: Some time in my first year of law school, because I hated it. I thought law school was just the most awful experience and it seemed to me that it didn’t have to be as bad as what I was going through. So, that’s why.

RG: Did things change?

JL: In the long term, yes. In the short term, no. I started teaching in 1984 and what I discovered was that, for the most part, my students weren’t interested in a law school that was kinder, or gentler, or more open to different kinds of ideas. What I had hated about law school the most: I went to Columbia, and I got there with a class of a whole bunch of really interesting, unusual people; and, then over the three years I was there, I watched them all turn into gingerbread cookies. I saw all of these interesting people become less and less interesting and it made me sick in my soul to see that. So, I thought if I were a law professor, I could give people the tools to be whatever kind of lawyer they wanted to be without changing their essential personality. But, when I started teaching, I discovered that most of my students couldn’t be less interested in that. They had a vision of what a lawyer was like and they wanted to turn into that person. So, in that sense, I was, I expect, a complete failure at trying to do something different.

Over the years, no thanks to me, law students have changed. They no longer want to turn into gingerbread cookies. And so I discovered that I enjoy teaching them much more than I did 20 years ago. At the same time, legal education would have done that without me. I didn’t need to be here for that to happen. People needed to get interested in the law who were more interesting and more interested in other things than perhaps was the case in the early 1980s.

RG: Do you find that Michigan is different from the other law schools you’ve taught at?

JL: Every law school is different. All law schools have their own pathologies and you get used to the ones where you are. One of the nice things about Michigan is that the students are nicer to each other than at many other law schools. That was also true at Wayne [State]. The Wayne students are just really nice and really hard working. Michigan students are not interested in competitiveness to the point of being complete assholes. At some schools that I’ve taught at that’s not true.

RG: What inspired you to write your book?
JL: It was suggested to me when I was a Visiting [Professor] at American [University] by Jamie Boyle, who was a professor there…. He is now a professor at Duke [University]. He’s just spectacular.… This was ’97-98 and I was down at American and in Washington and watching the Digital Millennium Copyright Act get enacted by Congress. We were talking to journalists about some of the things that were disturbing us about what was happening. The reporters were saying “I get it, but I can’t get my editor to get it. I can’t figure out how to get my editor to understand that this column should run, that it should get lots of column inches and run on the first page.” Jamie suggested to me that in some of my own writing was the germ of a way to explain this story to a much wider audience than just the folks who read law review articles. So, he really encouraged me to mine the last ten years of my work, and also the current stuff I was doing watching the statute get passed, to try and write a book that was accessible to an audience of smart people who aren’t necessarily lawyers.

RG: Have you talked to non-lawyers who’ve read your book and really liked it?

JL: Oh yeah. It’s quite wonderful. I get fan e-mail from complete strangers who say, “I just read your book and I have to tell you: thank you for writing it.”

RG: You began teaching at the beginning of the digital and internet revolutions. How have changes in your field affected you?

JL: Oh, it’s just fun! I learn new things every year because the law changes and the world changes. It’s seriously cool.

RG: In your book, you mention that Washington was behind the times with the internet and digital technology. Why do you think that was?
JL: Lawyers thought of computers as those things that sat on their secretaries’ desks. So, without experiencing what networked digital communication can do, it’s hard to think it up. If you look at all of the science fiction books from the 50s, the 60s, the 70s, the 80s, they missed the internet! They were talking about robotics, they were talking about a lot of things, but all of the visionary science fiction writers, at least in English, it never occurred to them to imagine the internet. It was, I think, just a failure of imagination; a sense that the world is always going to be pretty much the way it had been. As a result, as a whole generation of college students were getting free access to the internet, … the folks who ran things just thought: “oh anything on the internet is free, it’s all garbage, it doesn’t have any value, no one would want to read that.” They would still be saying that about what’s up on YouTube, except that folks are watching that, and Apple thinks enough of it to put a YouTube button on its iPhone, and so forth. But, the idea that, if costs were driven down low enough so that you didn’t need a printing press to communicate with people and that people would be generating content to interact with each other and would enjoy reading that – that was just a revolutionary idea in 1990 and it didn’t occur to people.

RG: What do you think of the recording industry’s choice to sue students for sharing music?

JL: That never should have happened. In the best of all possible worlds, peer-to-peer file sharing, in my view, should not be illegal. Canada, indeed, interprets its law so that at least downloading is not illegal. Really, until the Napster case, whether peer-to-peer file sharing was legal was an open question. There is a provision of the copyright statute that allows consumers to make non-commercial copies of recorded music and whether it applied to peer-to-peer file sharing was up in the air. Congress had intended it to give consumers a free pass for all copying of recorded music. But, congress hadn’t imagined how devastating it could be if 60 million people could make a non-commercial copy. The 9th circuit decided that, no, that’s not legal, and since then every court has pretty much agreed.

The recording industry is suing individuals partly for the deterrence value and partly because it’s actually generating some amount of money. What is being reported as the average settlement is between three and five thousand dollars. The cases bring in more than they cost to bring, so long as they settle. If you’re not going to court, if you’re just going through the settlement center, it ends up generating a small amount of money. Thinking up and starting this whole campaign cost a lot of money but, to the extent there are figures now, it indicates that it may be generating some small income. They need to do that because what they really want is to get the intermediaries. What the recording industry wants is for universities to stop peer-to-peer file sharing, computers to block peer-to-peer file sharing, sites that enable peer-to-peer file sharing to stop doing it, bit-torrent to incorporate some kind of filter, and so forth. Because copyright is set up as exclusive, enumerated rights, they can’t actually get the intermediaries unless they are facilitating actual illegal action by end users.

RG: So they’re not really after us …

JL: Initially they sued the intermediaries and when that didn’t work they started coming after you guys. Now, I’m not sure they are willing to break the habit. There are any number of advantages to being able to announce that they’ve gone after another 2000 college students: it scares you; it’s not fun for the general counsel’s office here which, however it feels, has got to counsel you that the cheapest thing is to settle the case and stop doing it; and it allows them to demand structural changes or changes to the design of consumer electronics and of networks to say, “look, there is all this yucky illegal use happening, we have to sue these consumers, nobody likes it; why don’t you just design your networks to block all this traffic?” It gives them leverage that is useful politically.

RG: What are the biggest copyright-related lobbies?

JL: There are giant lobbies. … You’ve got the music industry, and that includes separately the performers, the composers, the record companies, and music publishers – the folks who own the copyright on music, and their interests aren’t always aligned. The record companies want to make sure that the record companies get paid a lot and composers and performers don’t. Performers want to make sure they get a cut. There are the broadcasters, who have to pay royalties to people. There are the webcasters (who are not broadcasters -- they don’t use spectrum; they use the internet; they use glass). The broadcasters would like the rules for the webcasters to be harder than the rules for the broadcasters because that would give the broadcasters a comparative advantage. And there is cable-TV and satellite. So, there is all that. We have the software publishers. We have the hardware manufacturers. We have the consumer electronics industry. We have the telephone companies, who are incidentally the internet service providers, and the cable companies who are also internet service providers, and the WiFi telephone stuff.

All of these folks are trying to lobby. They are trying to preserve the advantages they have, get rid of advantages they don’t have, and incidentally protect themselves against whatever new medium is out there in the future. They don’t know what it is yet, but they know it’s going to cut into their market share. So, they want to write these rules so that they don’t have general application.….

RG: I can imagine. What do you think about the continual expansion of the length of the copyright duration?

JL: I think it’s bad. I wrote a brief in the Eldred case, signed by 54 law professors, which is posted on my website if you should want to take a look, saying that not only was it bad but it was unconstitutional. But, the Supreme Court said I’m wrong.

RG: What is your personal view on what the limit of fair use should be?

JL: In today’s world, I think we’re asking fair use to do too much. If you look at copyright historically… do you know what fair use is?

RG: That I’m allowed to use this without incurring…

JL: Precisely. If you make a photocopy of a law review article to study, you’ve made a copy. A court would say that’s fair use -- you’re making it for the purpose of scholarship and research, you’re not undercutting the market, and so forth. We’re asking fair use to protect people who do stuff like that – copying for themselves. We’re also asking for it to protect what you might call transformative uses, parodies; some of them the kinds of things that the authors of the underlying works wouldn’t like to license. We’re asking it to cover criticism. The thing about fair use is that the amount of territory it’s covered historically has been pretty constant. So, if you stretch it in one direction here, you tend to lose it over there. It’s not that elastic.

What has happened in the past 30 years is that the scope of copyright rights have expanded, so that more pressure is being put on fair use. No, this isn’t something congress did. Congress enacted the statute in 1976. What’s happened is that courts have read it somewhat more expansively. So, you have a non-statutory expansion of what rights mean. And, in addition, copyright owners have claimed laRGe rights without contradiction. For example, when the recording industry sends you a letter and says: “you have engaged in peer-to-peer file sharing. You can either pay us $5,000 and admit your wrong or we can go to court. If we go to court, we’ll be able to collect $150,000 for every song on your hard disk and you’ll have to pay $50,000 to a lawyer. Or, you can give us $5,000 and we’ll go away and you won’t hear from us again.” Unsurprisingly, most people decide to take the settlement route, but what that means is that we don’t give courts the opportunity to say: “Well, does this make sense? What did congress have in mind?” So that rights are, as a practical matter, getting laRGer as a result of grandiose claims rather than adjudication. And so that has put more pressure on fair use.

I suppose, what I personally if I ruled the world would like to see, is a more constrained definition of each of the exclusive copyright rights. So that the right to reproduce, and adapt, and perform publicly, have clearly understood boundaries so that we’d be asking fair use to do less because it works best when it applies to exceptional cases. This is in part because, to the extent that you have to go through a trial on the merits to figure out whether a use is really fair or not, that’s hideously expensive and it’s not fair. So, what I’d rather see is judges cutting back on the expansive definitions of copyright owner rights. I think they will. If you follow this field long enough, everything’s a pendulum. Things expand and then they contract, and then they expand and then they contract.

RG: What is it like working in a profession that is so heavily male?

JL: It’s much better than it was. When I first was here, it was very difficult, for lots of reasons. There weren’t many women, and many of the older men on the faculty didn’t really have an image in their head of a law professor who was a woman. Becky EsengbeRG and I started at about the same time, and while we didn’t look much alike, our colleagues kept getting us mixed up. That was reasonably hard. Women students who needed professors to talk to had to come to the ones that were here and there weren’t very many of us, and so forth. There are many more women here now, and it is, I think, a much more interesting and more comfortable place because of it.

In addition, IP is a field in which women dominate. If you get anybody’s list of the top ten IP professors in the country, more than half of them are going to be women. It’s an historical accident. It’s because, in the 1980s when most of us were entering the field, copyright, patent, and trademark were fields that were represented on very few law schools’ permanent faculty. Instead, they had adjuncts teaching them and the adjuncts, for the most part, weren’t writing. And so, a whole lot of women who were interested in IP came into teaching, and it was a course that was available to be taught.
RG: Any surprising fact about yourself that students might not know?

JL: Because of my mother, my career in legal education aRGuably started while I was still a child. She began teaching trial practice at the University of PittsbuRGh Law School (her alma mater) in the 1960s, and enlisted me to be the injured plaintiff in a number of mock trials.


Whether she’s playing an injured child plaintiff or weighing in on copyright law, Professor Litman is sure to keep apace of a field that changes as quickly as our internet browser speed.

September 11, 2007

The Constitutional Politics of Turkey Sandwiches

By Nate Kurtis

Dreams are won and lost every year at the Student Funded Fellowship auction. … Or so the popular wisdom would have us believe. But how can we know? So many of those fabulous prizes are collected in locales both exotic and remote (what is this San Francisco of which you speak?), and even more in private (after all, what happens in Prof. Soper’s hot tub stays in Prof. Soper’s hot tub!). The result: We mere mortals who can’t purchase such fantasies-made-real are denied even the vicarious joys that spring forth from this annual auction of amazement.

Until today. To help share the ecstasy, the RG sat down with Prof. Richard A. Primus, Michigan Law’s resident Sandwich Connoisseur and Constitutional Law Sage, to learn about his recent SFF-ignited adventure. For those who don’t know, Prof. Primus traded $800 for a chance at immortality -- he won the right to create and name a Zingerman’s sandwich!

Res Gestae: When was the first time you ate at Zingerman’s?

Professor Richard A. Primus: I guess the first time I ever ate at Zingerman’s would have been in 2001, the same year I came to teach at Michigan, and I remember liking it a lot. And, I remember that, by the spring of 2002, I realized that I needed a systematic approach to eating at Zingerman’s because there are so many options and so many of them are good. But, I thought that if I just went in each time without a plan I would wind up spending a lot of time trying to decide on each visit what sandwich to eat. I would inevitably converge on three or four things on the menu that I liked and find myself going back to them and that would mean that there would probably be lots of good sandwiches that I would never try. So I thought that I should have a system, and the system should be that I would eat every sandwich on the menu in numerical order. That way, I would never waste time figuring out what to eat next. Over the course of time, I would eat every sandwich on the menu. I would discover things that I didn’t know I liked that might be good. And, I would then accumulate a store of experience that I could use for better sandwich ordering in the future.

RG: Going numerically you’d hit a number of their retired sandwiches. Have you tried to order any of those?

RAP: Yes, I have, and they have been very cooperative about it. When I would ask them about a retired sandwich, they would look it up and they would tell me what was on it and they would make it for me. I discovered, for the most part, that there’s a reason that the retired sandwiches are retired. They’re not bad, but systematically the ones on the menu, I’ve thought, were better than the retired ones.

RG: [handing over a copy of the Zingerman’s Deli menu] Where is your sandwich on the menu?

RAP: On the present menu, I don’t think you’ll find mine. The way that the auction works is that they put up your sandwich for thirty days. In the unlikely event that your sandwich sells particularly well – and how well that is is never defined in advance – they will incorporate your sandwich into the permanent menu. My understanding is that no sandwich has ever been incorporated on the basis of the Law School auction in this way. Mine wasn’t either. I didn’t really expect that it would be because they’ve covered the ground of good sandwiches really pretty well. My sandwich was available for those thirty days – and it still would be now as a retired sandwich. I think you can still go in and ask for it. I had one maybe in July and they still remembered what it was and how to make it.

RG: What sandwich did you make?

RAP: It was called the Primus Inter Pares, meaning first among equals. I asked a lot of people, including students and colleagues, for input and suggestions about names, and this was the winner in the end. The idea being: the menu is filled with great sandwiches; I didn’t want to pretend that my sandwich was better than all of the other sandwiches. I just wanted to say that, even as among all of these great sandwiches, this is the one that I go for. So, ‘first among equals’ seemed like a good way to go.

RG: What is a Primus Inter Pares?

RAP: It’s a turkey – I think that Zingerman’s best sandwich meat is their turkey – with coleslaw, Russian dressing, and yellow mustard.

RG: You’re a toppings person I see.

RAP: Yes. It’s a lot about texture. I learned a lot about this actually from the Zingerman’s sandwich people in the course of designing the sandwich because they have an elaborate process. They don’t just ask you what ingredients you want and then put that up there – they take their office very seriously. They want to do good work, and so they counsel you. So, I sat with two different people who are from their sandwich making team and they asked me a bunch of questions about what I liked and what I didn’t like. They made me familiar with all kinds of considerations in sandwich making that I had not previously known about, like: the importance of texture; the importance of ingredients that don’t oxidize waiting on the sandwich line; the tradeoffs between the expensive ingredients and the salability of the sandwich. We tried lots of different combinations of things before we arrived at this one. Oh, I forgot to mention, it’s on grilled rye bread.

RG: Just how many sandwiches did you end up eating trying to figure that out?

RAP: I think that I probably tried seven or eight variations. I knew going in that I wanted turkey. I knew that I wanted Russian dressing. There was one moment at the 11th hour when I veered off into corn beef, but other than that I held to those initial two ideas but then played with a bunch of different variations, different kinds of mustard. At one point there was the possibility of apples. The apple idea was a good one but apples oxidize on the sandwich line; they’re tough.

RG: What about applesauce instead?

RAP: I’m not a huge applesauce fan. And, once I had the coleslaw and the Russian dressing, applesauce on top of that would give me, I think, a pretty soggy sandwich.

RG: The Primus Soup?

RAP: I think it would be.

RG: That could be the next thing you win at the SFF auction.
RAP: It could be. I suppose it could be.

RG: Were you charged for all those sandwiches you ate while making it?

RAP: No. I suppose that, from a particular law and economics standpoint, you could say that the donation that I made to SFF included the eight sandwiches that I tried. They did not charge me for the sandwiches that I sampled to figure it out. Once the sandwich was set, if I wanted one I had to pay for it.

RG: You designed the sandwich at the end of last spring, right? What with grading finals and getting married, when did you find time to make a sandwich?!

RAP: It was tough. It really was tough. I look back on March and April and I find it difficult to understand how everything that needed to get done got done. But, priorities are priorities, and designing a sandwich is serious business.

RG: Where did it rank in there with the other two?
RAP: Let’s say in second place.

RG: Alright, we don’t need to be any more specific. Now, the cost of a Zingerman’s sandwich does raise an interesting question. As a constitutional law expert, at $10.99 a sandwich – steep for a sandwich – is there the possibility that it is a due process violation?

RAP: I think I’ve waived any such objections. Is there a due process problem to the public at large? I guess what I would say about this is: Are you a communist? WHO TAUGHT YOU CONSTITUTIONAL LAW? [laughs]

RG: Well, since your sandwich didn’t make it onto the permanent menu, do you still feel that it was money well spent?

RAP: Oh, absolutely. It was money well spent, I think, on two fronts. The first is: Student Funded Fellowship is a worthy cause to support and I’m glad to give them my money. I’m glad to give them my money, sandwich or no sandwich. And then secondly, you know, you take your shots at glory and they don’t always pan out. But it is far better to dare mighty things, even though checkered by failure, than to dwell in the perpetual twilight that knows neither victory nor defeat.

RG: But, can we still call it a student funded fellowship if it is the professors, like yourself, who are picking up some of the larger ticket items?

RAP: That’s an interesting question. I think what it means is that students need to step up and open their pocketbooks a little bit more. I can be beaten in this auction. Most students at this law school are going to make more money over, let’s say the next ten years, than I am. There is very little reason why students, with an appropriate understanding of their consumption possibilities, shouldn’t be able to beat out the faculty in these auctions.

RG: What about at the next auction? What are you going to bid on; what is a dream win for you in the upcoming SFF auction?

RAP: That’s tough. You see, the problem is that this was the dream and I don’t know if something comes after it. It’s not the only thing I’ve ever bought at SFF auctions -- I also bought a week on a cattle ranch in Nebraska at a previous auction. But, worthy as that was, it wasn’t a Zingerman’s sandwich. I’m not sure that there is anything for sale in Ann Arbor that is more exciting than that.

RG: Maybe then it won’t be so hard to beat you next year. Well, other than your sandwich, which sandwich or two would you recommend to people from your experience?

RAP: Well I have notes on the subject.

RG: Really?

RAP: Well certainly, because the theory was: try all the sandwiches so that, for the rest of my sandwich purchasing life, I will know what to do. I don’t have a perfect memory so I take notes on lots of things, including this. [Opens a file on his computer containing detailed information on each Zingerman’s sandwich.] So, my notes say that my favorite sandwiches off of their menu are the 1, the 18, the 20, the 34, the 62, and the 67, and maybe the 73. Now, I’d need to look through the menu and see what those are to narrow it down further. The number 1 I remember. The number 1 is called the “Who’s Greenberg Anyway?,” it’s corn beef, chopped liver, and Russian dressing on rye. If I eat it every day I’ll be dead by the time I’m 45, but I’ll die happy. And, what else? Let’s see. [Consults a Zingerman’s menu.] 18, 20…. Like I said, I think their turkeys are very good. So, ah, so the 18 and the 20 are essentially the same version of a turkey Reuben, just one is grilled and one is not grilled. They are excellent. They are also relatively close to mine, except they have cheese – mine’s a no cheese version. And mine has yellow mustard which they don’t have. And then, let’s see, 34, 62, and 67; what are those?

RG: Wait, 67, 73, does that mean you’ve eaten seventy sandwiches from there?

RAP: Oh, I’ve eaten them all, and the numbers stretch up to nearly a hundred – or rather, I’ve eaten all of them except the ones containing ingredients forbidden by the God of my Ancestors, which basically means that I didn’t eat any of the sandwiches with pork. And, I finished the menu right about the time I bought the sandwich at SFF. I figured that’s what made me ready to do it. I think I couldn’t have bought the sandwich in an earlier year because I would still have been operating without full information. So let’s see: 34, 62, and 67. Oh yeah, the 34, which is “Diana’s Different Drummer,” is ranch beef brisket with coleslaw and horseradish. I think, let’s not count the 18 and the 20 because they are too similar to my own. Once you knock those out I might say the number 1 and the number 34.

RG: Do you have any advice for the sandwich consuming public?

RAP: I would say: “Life is short, use the right mustard.”

RG: Thank you.

RAP: You’re welcome.

Darin Latimer, the Front of House Manager for Zingerman’s Deli, recalls the Primus Inter Pares. “Although it didn’t sell enough to make it onto the menu,” says Latimer, “it did develop a bit of a following while it was on the special menu.” Rick Strutz, the Managing Partner of Zingerman’s Deli, adds that “[n]ot only was [the Primus Inter Pares] one of the best tasting, but also one of the most requested sandwiches we have co- created in the 10 or so years we’ve been involved in the auction.” Even if it isn’t listed on the menu, customers can still order the Primus Inter Pares. As an added incentive, Latimer noted that “it’s always possible [for a sandwich] to make it on the menu” if enough people ask for it.

That means that all hope is not lost for those of us who weren’t able to purchase happiness at last year’s SFF auction. We can each carve a slice of immortality for ourselves if we do our part to buy the Primus Inter Pares onto the permanent menu. And, at $10.99, we could do it for much less that what that sandwich cost Prof. Primus!

Nate Kurtis is a 3L and the Editor-in-Chief of the Res Gestae (why else would a newspaper devote so much space to a sandwich?). Questions or comments about this article may be sent to

April 03, 2007

From Cannibals to Coase: An Interview with Brian Simpson

By Malak Hamwi

Professor A. W. Brian Simpson’s primary interest is in the historical development of law and legal institutions. He is also an expert on the European Convention and on human rights, and frequently speaks on these subjects in Europe and the United States. He does some pro bono consulting in connection with cases before the European Court of Human Rights. Simpson is the Charles F. and Edith J. Clyne Professor of Law at the Law School, and has held professorships at the University of Kent, the University of Cambridge, the University of Chicago, and the University of Ghana. Professor Simpson earned an M.A. and a Doctorate of Civil Law from Oxford University. He is a fellow (honorary) of Lincoln College, Oxford, and a fellow of the American Academy of Arts and Sciences and the British Academy. In June 2001, he became Honorary Queen’s Counsel.

Res Gestae: What does the A.W. in your name stand for?

Professor Brian Simpson: Alfred William. I was always intended to be called Brian, but my parents for some peculiar reason put Alfred William first. Those are family names. They wanted to give me some family names, and for some reason they put them in that order and I don’t know why. They never explained it. It’s crazy.

RG: Tell us about your road to Michigan.

PBS: I started teaching at the University of Chicago Law School in 1979. Then I became a tenured member of the faculty. Then I was invited to Michigan to teach contracts and I decided I liked it better than Chicago. So after a lot of doubt I moved. I didn’t dislike Chicago, but I thought that this place was more varied and more diverse basically, in terms of the academics. And also Chicago, at that time, had a poor reputation for minority students. There were hardly any minority students when I taught at Chicago. It’s become different, but this place has always had a policy of having a diverse student body, which I like better.

RG: Have you always known you wanted to be a law professor?

PBS: I was uncertain when I finished at Oxford whether to go for a career at the English bar or become an academic. I got married very young, and there was an attraction to getting a steady income. It was always a possibility. I wasn’t absolutely settled I would become an academic, but I became one and I stayed one.

RG: When you first came over from the UK to teach in America, was the adjustment difficult?

PBS: American law schools are very, very different. To start with, all the students here are graduate students, and in the UK, most law students are undergraduates. And the system of big class teaching doesn’t exist in English universities. In Oxford you taught students in groups of two. And all my formal lectures at Kent were classes of about twelve students. But these big-case classes just don’t exist. English students just won’t participate in them.

RG: Do you think big classes are effective?

PBS: I think they’re quite enjoyable. They work best in the first year because the students are more enthusiastic. I’m not sure that doing big-case classes is sensible for the whole 3 years. But I would much prefer it here if we taught in smaller classes. At one time, we used to have a program for teaching in smaller classes, but it’s collapsed because there aren’t enough people to run it.

I think the trouble with the big classes is you have very little real contact with students. I mean, if you’ve got 95 students, how on earth are you supposed to get to know them? You tend to get to know a few of them, but it’s not like seminars. You get to know them. I have them over to my apartment, but I can’t have 95 students to my apartment. There’s no room for them.

RG: How do Michigan students compare to others you’ve taught at different institutions?

PBS: The Chicago students tended to be rather right-wing. They’re very hard-working, and they worked just as hard for a class in the third year as in the first year. Michigan students seem to me to be more sensible, more relaxed, and so on. And the student atmosphere I think is less competitive and more friendly and I prefer that. The Chicago students were intensely competitive. Students here are competitive, but it doesn’t sort of break up personal relationships. But I mean Chicago had the problem of students hiding books and so on.

The students here seem very good. I think the admission policy here has worked extremely well in getting a mixed crowd of interesting students. I hope we’ll be able to continue to do that, but we can’t break the law, you see. We can’t deliberately flout the law, so we have to adapt.

RG: Are you worried the character of Michigan will change after Prop 2?

PBS: I think it may change. I think we will tend to get less minority students for a year or two. It will probably come back to much the same, but it’s difficult to tell. It’s a policy that’s worked well. We have lively classes and the students that come here all do well. We have studies about what happens to them, and they all do great out there in the real world.

RG: How do you determine what cases are worthy of scholarly inquiry?

PBS: Sometimes for pure chance reasons. The cannibalism book was because I obtained access to the government files on the case (Dudley and Stephens) and immediately saw that there was a really good story in it. Otherwise you pick them because you think there will be material that will throw light on them. That’s to some extent guess work because sometimes you can’t find out anything apart from what’s in the law reports. I have tried to do studies of some cases and so far got nowhere with them because I can’t find out anything about them.

RG: Like what?

PBS: Armory v. Delamirie. I’ve tried to find out more information about that case, but so far I’ve got nowhere. I’m still trying. But the trouble is that if the people in the case are poor, they tend to leave no trace in historical records. So if you do a case involving fairly wealthy people, you often find information. It’s easier to find information in the nineteenth century, because there are extensive newspaper reports. They often give very detailed accounts of litigation, so you get a lot of information from them, but the further back you go, the more difficult it gets.

RG: What’s your interest in that case?

PBS: It’s such a strange case. I mean, here’s this chimney sweep boy, they were the lowest of the low, somehow suing – who paid for his lawyer? He’s suing the most distinguished silversmith of the early eighteenth century. The defendant’s work now sells for a million dollars an item. And yet we don’t know anything about how the case happened.

RG: For how long have you tried to get information on that case?

PBS: I’ve done it intermittently for years, but I haven’t gotten anywhere. History is sometimes just hopeless. Sometimes you just have to give up.

RG: What are you working on now?

PBS: I’m the sort of person who doesn’t stick to any particular thing for very long. I’m like a butterfly. Now, I’m supposed to be writing a book this year on the common law tradition. A general account of the legal tradition in which you and I are working, which is the common law. There is no such book. There’s a book on the Roman law tradition, the civil law tradition. But no one has ever written a book on the common law tradition. It’s weird. So when students ask, “What is the common law?” there is no 200-page book you can give them.

It’s going to be an account which can be read by law students in their first year who wanted to have some idea what this common law system was. It’s thought there will be interest in it, if it’s any good, from lawyers in other traditions, like French lawyers or German lawyers, who want an account of the common law system. But it’s got to be written – that’s the problem. You’ve heard of writer’s block? That is a real phenomena where you just can’t spool yourself up to start. You spend time tidying out drawers, or washing your socks, or rearranging your books. Anything rather than trying to write the thing. I’m going to have to be very determined to get started on it.

Writing short books is harder work than writing long books because you have to really get your thoughts organized. That's not the case in writing great big long books like my book on human rights, known in the family as “The Beetle Crusher.”

RG: Your expertise is in common law history and also human rights law. Do you consider these two distinct areas of expertise or are they somehow linked?

PBS: I started life doing late medieval legal history. In recent years, I’ve gotten more and more interested in what you might call modern legal history. I edited a series for the Oxford Press called “Oxford Studies in Modern Legal History.” I wrote a book about detention without trial in Britain in the Second World War, mostly based on archival material, but also on a lot of interviews with people. We locked up about 1700 citizens, and quite a number of them belonged to the British Fascist Party. I interviewed a lot of these people. I also interviewed some of the security people who were chasing them. So that was history of the Second World War. Some of my international law writings have been historical. This book here is about how Britain came to sign up to the European Convention on Human Rights, and what difference it made to life. It’s the history of the 1940s/1950s. I published two pieces on international law, both based on post-Second World War legal history. One is on the genocide convention. Another one was on whether the British government during the Second World War paid any attention to international law in conducting naval operations. A lot of this is legal history but very modern legal history because there’s a huge volume of archival material nobody’s ever looked at.

Basically I’m interested in how law develops and how it interrelates with government organizations, with parliaments, with public opinion. Looking at law in a broader context.

RG: Having studied the development of medieval law and more modern law, is there anything about the development of modern law that worries you?

PBS: I’m quite concerned currently at overreaction to the threat of terrorism. I really think it’s a great mistake to throw away our civil liberties just because we have a panic about a bomb or two, however serious the bombs are. That’s one interest of mine in human rights work. Human rights protection, in Europe anyway, is a considerable control over governments. I think, like many Americans think, that America has overreacted. And I hope a lot of the Patriot Act gets repealed. It’s not necessary. It’s understandable, but it’s a great pity to ditch your civil liberties. They’re important.

Even in the Second World War, the repressive laws in Britain were not as bad they are now. And that was a BIG war. So I think there is an overreaction. But that’s a view shared by lots of people in America. And there is a sign that currently there is a sort of reaction against it -- it is sort of encouraging. You see more and more people saying we shouldn’t do this. We should restrain ourselves a bit.

RG: Have you thought about doing research on the topic?

PBS: I’ve written extensively on emergency powers, but only on their historical basis. But I don’t like get into political controversies in America. I’m not an American. I don’t direct writing to what happens over here. I think that’s better left to American scholars. Especially since they understand American constitutional law.

RG: Have you been involved in any political controversies in the UK?

PBS: Not really. The sort of activist side of me is confined to doing pro bono work on human rights cases. I’ve been involved in quite a number of those. But that’s all -- writing memos and documents and opinions for use in litigation. I’ve never been a politically active sort of person. I have political views but I don’t join political parties or go on marches or anything like that.
RG: You’ve maintained strong ties to the UK. Do you go back often?

PBS: I spend about half the year there.

RG: Why haven’t you become an American in all your years here?

PBS: Mainly family roots. I’ve got five children in England and heaven knows how many grandchildren. I’m English and an Irish citizen, too, and I think that’s enough. I like America but I wouldn’t want to spend my retirement in America.

RG: You mentioned retirement. Do you already have plans about that?

PBS: I’m getting very old. I’m coming up to 76. I can’t go on forever, so at some point I obviously will retire here, but I haven’t taken any decision about that. It’s a great mistake to go on working too long because then you become an embarrassment to the Dean. You don’t want to do that. At some point I’ll retire, but I’d like to maintain a connection with Michigan.

RG: What will you do in retirement?

PBS: Much the same sort of writing I do now. I have hobbies. I like gardening, bird watching – though I can never tell most birds apart – and I run a boat. I still have a sailing boat, but I’m getting a bit old for sailing it on my own so the family is pressuring me to confining my activities to a motorboat.

I was thinking of writing a book on markets. And I might do that. About how markets work, the different sorts of markets, the regulation of markets, the weird markets for selling bizarre things. There’s a market in Russian brides. Markets in saints' relics. All sorts of strange markets out there and there isn’t a little book on markets that gives an account of how strange these markets are. I give a seminar on this.

RG: You have such an extensive body of work. What project are you most proud of?

PBS: I’m quite pleased with this book on human rights because it does relate the history of international law to the political and diplomatic history of Western Europe. I think other historians have really paid very little attention to the development of the human rights convention, which is the first effective human rights protection ever invented anywhere in the world. It’s an amazing make. I’m also fascinated because its ratification coincided with the dissolution of the British Empire and there’s the whole question to what extent did human rights protection affect that and lead to consequences in decolonization and so on.

But I think most writers are never happy with their books. The minute they’ve published it, they immediately see some fault in it. It’s a common phenomenon that once you’ve published a book you think, “oh God, that could have been so much better if I spent another year on it.” You’re always dissatisfied.

I think it’s sort of like being an athlete. Unless you think “I could be better,” you’re not being a good athlete. Those guys who run a hundred meters in 9.8 seconds are always dissatisfied because they think they could run it a bit faster. I think in any sort of creative activity, you have to be endlessly dissatisfied with what you’re doing, and think it’s dreadful and could be better.

RG: Do you have a preference for publishing books or writing law review articles?

PBS: I don’t like law review articles. People sort of belong either to the book writing culture or the article writing culture. I have published articles but I never regard that as my aim in life. The aim in life is a book. You find those people particularly connected with the humanities end of law tend to be happier publishing books. I also don’t like the endless wrangles with law reviews about the footnotes and so on. It’s just dreadful.

With books, you have more creative freedom. It’s also partly vanity. I feel better if I have a newly published book than if I have the off prints of an article. I don’t know why. It can’t be rational.

RG: Can you talk a little bit about your exchange with Professor Ronald Coase over his article “Law and Economics and A.W. Brian Simpson?”

PBS: Oh yes, he got furiously angry with me. I wrote a criticism of some of what Coase said, which was not meant to make him angry. I thought it was perfectly polite. He’s a great scholar. It was just a disagreement on academic things. But Coase got rather cross with me, instead of replying to the arguments, so I got slightly cross in reply. He said how dare somebody who’s not an economist write about this, and I said you don’t have to be a horse to write about horses. Most of what I was writing about was law anyway, not theoretical economics.

A large part of the article simply argued that he hadn’t quite understood the law. The law and economics movement, well if you’re critical of it, they tend to either get cross, or just ignore the criticism, and carry on as before. I don’t know why they do that. They’re sort of defensive about it. The arguments I put forth in the article, nobody’s replied to them.

RG: Let’s talk about some fun topics. You’re known for signing your books in blood every year for the SFF auction. Where do you get the blood from?

PBS: It’s a joke. It was to raise money. I get the blood when they draw blood for blood samples. I sometimes can persuade them to spare a little bit. But the medics are reluctant to do that, you see. Otherwise I just stick a thing in my ear lobe and squeeze the blood out. You just get a razor blade and cut it. You clean it and sterilize it, of course. It doesn’t hurt much. You don’t need much blood, just a little bit. Then I use a little brush.

It’s become an institutional joke. It’s been going on for 7 or 8 years. We had to give things to SFF. I don’t remember whether I suggested it or a student did, but we agreed to sign my book in blood and it’s been done every year since.

RG: I’ve also heard you remove articles of clothing at the SFF auction….

PBS: The stories about this are exaggerated. On one occasion I removed my shirt and that’s all. The stories are that I removed lots of clothes, but it’s not true. You see, to get the students to bid you have to be silly and clown about. I didn’t do it this year. I’ve bitten balloons and things like that in the past. You just have to be ridiculous to get them to bid. But it’s all for a good cause.

RG: You’ve also been rumored to have an exotic palate and to be a bit of a wine connoisseur.

PBS: I do cooking quite a bit for my family. I do some of it here, but when my children and their significant others come down, I always cook. I like cooking. And I drink too much wine. I like French white wines, but I drink lots of wine. I’m not a wine buff. I can’t tell you names and dates of dozens of different wines. I just like the stuff.