Legal Skills Prof Blog

Chapman business law prof sues his own students for posting final exams on the web

The New York Times recently reported that a professor who teaches business law at Chapman University's George L. Argyros School of Business and Economics has sued his own students for copyright infringement after discovering that they had posted his midterm and final exam from last spring on a website called "Course Hero."   The website is used by students to share lecture notes, quizzes, syllabi and similar course related materials. Or as Course Hero itself describes it:  "a peer to peer study platform through which students and faculty can upload documents to share with one another - almost like a library."  Like the Chapman professor, I'd never heard of Course Hero before either but he stumbled across it in January where he discovered that his final exam from the previous spring had been uploaded to the site. Course Hero allows students who upload documents to get free access to some documents while the site also sells monthly subscriptions for $9.99 for full access (sounds a bit like the old Napster/Grokster peer sharing model).  

The professor told the NYT that his copyright infringement suit is not aimed at recovering damages from his students but instead he wants to identify them so that he can refer the matter to his university's honor court. Before filing the lawsuit, he registered his final exams with the U.S. Copyright Office so he could then sue in federal court and then seek to serve a subpoena on Court Hero turn over the names of the offending students. 

Hoping to Identify Cheaters, a Professor Sues His Own Students

The professor, David Berkovitz, who teaches business law at Chapman University in Orange, Calif., filed a lawsuit against an unnamed group of his students — identified only as “Does” — after he discovered in January that the midterm and final exams he had given in the spring of 2021 had been uploaded to a popular website that students use to share lecture notes, sample quizzes, syllabuses and other documents.

 

In filing the suit, which accuses the students of copyright infringement, Professor Berkovitz hopes to force the website, Course Hero, to identify those who uploaded the exams along with sample answers that were also on the website, his lawyer, Marc E. Hankin, said on Thursday.

 

If successful, Professor Berkovitz plans to turn over the names to Chapman’s honor board, Mr. Hankin said. Because Chapman’s business school requires grading on a curve, Professor Berkovitz is worried that students who cheated may have unfairly caused their classmates who played by the rules to receive grades lower down on the curve.

. . . . 

“The moral and ethical failing notwithstanding, the real concern is these students are hurting their fellow classmates,” Mr. Hankin said.

Students whose scholarships are tied to a minimum grade point average could lose those scholarships through no fault of their own and could even have to leave school, he said. “That’s the real harm he’s trying to prevent,” Mr. Hankin said.

. . . . 

More from the New York Times here.

(jbl).

Precedent and Similarity by Frederick Schauer & Barbara A. Spellman

Here is an excellent article that uses cognitive science to show how judges apply precedent:

Precedent and Similarity by Frederick Schauer & Barbara A. Spellman.

Abstract

Given that no two acts, events, situations, and legal cases are identical, precedential constraint necessarily involves determining which two different cases and situations are relevantly similar. One traditional view posits that these determinations are made on the basis of the rationale in the earlier case, another traditional view sees similarity in the facts of the earlier case plus the outcome, and the Legal Realist view insists that determinations of similarity are ex post attributions based on a judge’s outcome or policy preferences. In contrast to all of these positions, however, is a view informed by research in cognitive psychology. This research supports the conclusion that outcome-independent perceptions of similarity, perceptions based on the experiences and background of the perceiver, not only play a role in the determination of similarity, but often lead precedential reasoners to reason from particular to particular without the conscious mediation of any rule or principle.

(Scott Fruehwald)

Megan Bess, Transitions Unexplored: A Proposal for Professional Identity Formation Following the First Year

Megan Bess, Transitions Unexplored: A Proposal for Professional Identity Formation Following the First Year

Abstract

Like students in other professional fields, law students experience significant transitions during their education. These transitions consist of intense learning periods associated with major change as students develop their professional identities. These challenges and experiences allow students to develop and internalize the skills needed to be a successful lawyer. Law schools are in a unique position to create and reinforce structures to help students navigate these transitions and maximize professional identity formation. This paper will detail some of these transitional challenges and provide suggestions for law schools to further support students during transitions—most notably during the summer following their 1L year.

Summer employment is a key transition point and a crucial opportunity for professional development and growth. The challenge for law schools is that summer employment falls outside their curriculum and oversight. But even when such transformational experiences occur outside of the traditional curriculum, law schools can still prepare students to maximize their development and internalization of professional values by utilizing effective pedagogy for professional identity formation. Externship pedagogy uniquely aligns with professional identity formation. By implementing common externship pedagogical tools, such as goal setting, reflection, and skills assessment, law schools can help students maximize development of professional identity in real world practice settings, particularly over the summer after 1L year. This article proposes that law schools implement professional identity formation programs comprised of key externship pedagogical tools and provides suggestions for creating stakeholder buy-in for such programs.

(Scott Fruehwald)

Congratulations . . . to me!

At the recent 20th Anniversary meeting of the Rocky Mountain Legal Writing Conference, I received the "Envisioning Award" for my role in founding the conference a little more than 20 years ago when I was a legal writing professor at the University of Colorado School of Law (Boulder!). I very much appreciated having my contributions recognized in this way. Thank you.

And an interesting bit of trivia about the founding of the conference . . . . As we batted around ideas about what to call it (my first suggestion was to call it the "Southwest Legal Writing Conference" but we quickly realized that wasn't going to work as there was already a Southwest School of Law in Los Angeles), I then thought the most geographically appropriate name was the "Mountain Region Legal Writing Conference" since that would take into account the variety of mountain ranges in the general vicinity that includes Utah, Wyoming, Montana, New Mexico, Arizona, and Colorado (with which I was familiar due to my fanatical devotion to skiing at the time). But the others liked the sound of "Rocky Mountain Conference" better even though it doesn't accurately describe the area that we had hoped to draw participants from. But since I was employed by CU at the time, I had no objection to calling it the "Rocky Mountain Conference" and so it became. Yet another example of a "happy accident" that worked out for the better since I now agree that "Rocky Mountain Conference" rolls off the tongue a wee bit better than "Mountain Region Conference."

View this photo

Finally, to our loyal readers, I confess my embarrassment at how much I've been slacking in my blogging duties over the past year. I don't have a really good excuse except to say that I've been feeling pretty burned out (no doubt exacerbated by the pandemic). However, the Legal Skills Prof Blog is still very much alive and kicking (though concededly languishing a bit) so please keep those tips, stories, and other news items rolling in . . . . . We will report them in due course. 

(jbl).