How long have you been a business law professor at Cal Poly?

I’ve been here at Cal Poly since 1983. So, it’s been 34 years now, a pretty long time.

What did you do before becoming a business law professor?

I practiced law at Patton Boggs.

What area of the law did you practice and what were your duties at Patton Boggs?

I only worked there for about a year and the summer before that. As I first year associate my duties were pretty general, but since I had an MBA I was more involved in the business law area. So, I was involved in a pretty big securities case, some antitrust cases . . . I represented Uncle Ben’s in a trademark case . . . I tried to get into the lobbying area. We were actually representing the State of Louisiana and they wanted direct flights to Washington International . . . so I was a little bit involved with that. It was just the sort of thing that first year associates do . . . you know partners grab them . . . there was a nonprofit I was working with at the time which was probably the most difficult for me because I didn’t really know much about tax or nonprofits. . . I was kind of just thrown into this case with Amway. That was the first time a partner yelled at me [laughter]. Yeah, because he wanted me to brief a topic for him and I just told him the issues . . . kind of like a law professor would. He had the client on the phone and he’s reading what I wrote and it didn’t give him the answer. So he was absolutely livid with me after he got off the phone because he wanted in this brief the answers to the questions so that he could actually provide them and not look like a fool over the phone so I learned a pretty good lesson on that one. . . So that’s kind of what I was doing at the time. But from very early on I really didn’t think that I wanted to be a lawyer in Washington, D.C. in a big law firm . . . so I explored some other options.

Is this when you knew for sure that you wanted to become a professor or were there other alternatives?

I actually did not know I was so confused because you know I had an MBA also so I wasn’t even sure if I wanted to be a lawyer. So I had started to talk to some law firm management consulting firms. There was an accounting firm I was talking to and I was sort of a perfect candidate for that kind of position. So even before I took my job with Patton Boggs . . . my decision was do I want to work at Patton Boggs or with a management consulting firm that I had a very good offer with, which was Bane & Company. So most of us in the joint program started in law on the theory that you could always go into business with your law experience, but if you go into business first its harder to transfer into being a lawyer.

So, do you mean studying business in school first or actually working in the field?

Actually going in and being a manager for a few years and then trying to go to a law firm. At least . . .We had a mythology and I think it’s true that law firms won’t hire as easily from a business and they won’t hire a business management type person who hasn’t been involved in law for three or four years. As opposed to somebody who’s been a lawyer for a couple of years looking to work for a business. If anything, they are more valuable to businesses that are looking for MBAs and . . . they like the law degree anyway and they like the logic of lawyers. So if anything we become more valuable on that track by practicing law first. If you go into business first, we at least had the conception that that we became less valuable to law firms the longer we were out of law school and doing other things. So I think all of us went into the law first. There were ten or eleven of us in this program and I think all of us went into law first, and then a number of them went into business.

Well that’s definitely good to know for career planning . . . could you tell me more about how you ended up as a business law professor?

I went into law first but I was really conflicted over what I wanted to do so I started to look at other options that just might appeal to me more. One of them was to be a manager in a regionally large hardware store in the Washington D.C. area. I considered the law firm management consulting position and then there is this hiring conference for law school professors in Chicago. It’s kind of an annual thing, at least back then it was. So I just through my resume into the pile. You know to be honest I was a very poor candidate for law schools because most of them want people who have taught somewhere before or who are really involved with publication which I was not I was JD MBA I was not on law review and I didn’t write anything when I was at Patton Boggs. So I didn’t realize it but I was not a good candidate for teaching in law schools. Nor at the time did I know if I wanted to do, but I went to the conference anyway. The interesting thing that was there for me was this major business school. I probably shouldn’t say the name . . . but anyway they were interested in me because of my background. At the time I didn’t even really know about the market for teaching business law type topics at a business school. Anyways, they were interested, but then I saw the job at Cal Poly . . . and my girlfriend at the time, soon to be my wife, was originally from Santa Barbara. She knew Cal Poly very well and I liked California since I had gone to Stanford. So I came here and I shocked a major business school, in choosing Cal Poly over them. I think it was a good decision because I’ve been here 34 years and I’ve loved it. Originally, I thought I would only be here for three years, it was supposed to be a kind of experiment. I figured I would learn a little bit more about myself and maybe more about what kinds of things I should be doing, but I liked it. You know the pay wasn’t great compared to what I made but you know the lifestyle here kind of makes up for that.

Although you have never been a professor at a law school, how would you compare being a professor at a business school to at a law school?

The teaching part would probably be much more time intensive. I would have to be significantly more expert on a particular topic and I would probably be teaching that almost exclusively. So I imagine if I had been able to go down that route I would have tried to develop immediate expertise in Intellectual Property and attempted to have those be the classes I teach. What I think would really be enormously different as a law school professor verses a business professor is publishing. As far as I know law professors have law students help them with their research which makes sense because law students are actually sort of skilled and interested in doing law research and can do an extraordinarily confident job. Student assistance like that could really be helpful. I mean I am not going to say it’s easier but one that’s teaching in a lawschool is number one more likely to be able to publish more product with a significantly more substantiation in terms of foot noting and things which have become increasingly more important to publish in first rate law reviews. So my job teaching in a business school is different in that I have to do all that research work myself. It just wouldn’t be reasonable for me to ask my MBA students to do serious legal research. They aren’t interested and it’s not reasonable for me even with our bright undergraduates. They aren’t law students, who are trained in doing the kind of research I would need them to do in terms of reading cases or law reviews and pulling things out for me. So that would be a major difference for me teaching at a business school verses at a law school. This may not be the way it is for all business schools. There are business schools, that also have law schools and so they can tap their law students. In fact they do tap their law students to help with their research. So University of Indiana or Georgia, or a school like that, the professors there in some ways have a different publication potential than I do.

So what has not having law students to assist in research meant for you?

It sets up for me sort of strategic considerations about what areas I wanted to research and publish in. I actually learned this from a colleague who’s actually an expert in employment law here at Cal Poly. You need to find your gold nugget and mine it as much as you can, preferably in an area where your major law professors at law schools are not spending the bulk of their time. So for me it was intellectual property. When I started doing it, it was still kind of an outlier and I think particularly copyrights. I started with art, music, and technology. You know law schools were maybe only offering one class in it and it was basically unheard of in business schools. There just weren’t a lot of law professors that were focusing a lot of attention on intellectual property in the 1980s. Now that’s all completely different today. So I wrote the first general technologies law textbook for business schools, which was first published in 1990. Now there’s been five editions. So for the first edition the internet basically didn’t exist and then for the fifth edition, which was 2011, it was like ninety percent of my text book. It’s getting very difficult to stay on top of everything that needs to be in it. So that was good for me here at Cal Poly since those sorts of things help you towards tenure. Now, I don’t think professors at law schools quite get that same credit for textbooks. Anyway, I definitely think it’s real important for professors teaching law at business schools to find that niche area or golden nugget, especially when their campus doesn’t have a law school.

So, it seems like intellectual property was a niche back then, but now it’s a hot topic. Has that made an impact on your ability to publish?

Now it’s very competitive, but the good thing for me is that I am sort of well-established now. Since I have a significant number of publications, when I send in an article with my name on it to a law journal, it’s not completely blind refereed. Journals get a significant number of submissions and it’s probably one out of hundred that they are going to take. Making it even more competitive today are the online methods where you just pay a couple of bucks and you can submit to something like 50 publications at once. So I think since I have some past publications it will help me get noticed. Now, I’m just guessing on my end, but I think that happens a little [laughter].

I see you recently wrote something for IPWatchdog.com regarding the Star Athletica v. Varsity Brands case before the Supreme Court?

Yeah, so they already had oral arguments on October 30th and I was thinking I might write an article about it. I had some interesting ideas on sort of what might happen and what was going to trouble them. But for me to try and publish on what the Supreme Court might do or should do, is sort of like cutting your own throat because the Supreme Court might only take a few months to come out with a decision. Having to go through all the hoops and hurdles of publication . . . the decision would already have been made and my submission would get thrown out. So I published on IPWatchdog.com in September. I have still been developing my ideas on Star Athletica since then and I going to a conference in Monterey on [March 18th] to give a sort of expanded talk on what’s likely going to happen. I titled the talk, “When it’s good to be fashionably late,” [light laughter] since the decision should come down real soon. In an interesting way, it looks good for my role as tenured professor, who needs to continue to show publication. I could at least say look I thought about it, I had some ideas, I wrote it down, and I got someone to publish it right away. For an article in a law review I probably shouldn’t be saying what the Court might do, but rather write on why the Court’s decision was right or wrong, which I might do next [laughter]. Their oral argument showed nothing but tremendous confusion and lack of preparation, it was sort of an interesting oral argument.

What future developments in IP law should we be on the lookout for?

With regard to current challenges to IP law, I would say fair use with copyright, and interesting issues raised by behaviors on social media, a topic that I just wrote about in the Journal of Legal Studies Education. Actually, copyright is challenged in a lot of ways by the Internet. ABC v. Aereo was just one of many examples. So this is an area that will continue to raise controversies. The application of trademark rights with the Internet also needs to be watched, such as with domain names, internet search results and counterfeiting on auction sites.