The Problem Solving Workshop: A Video Introduction

by Lisa Brem, Case Studies Program Manager

The Problem Solving Workshop (PSW)—a mandatory first-year course at Harvard Law School—has been successfully integrated into the curriculum for five years. The course is a major departure from the rest of the first-year doctrinal courses, focusing instead on hands-on participation from students and community practitioner volunteers, team projects producing legal work product, and playing various legal roles.  The course expands students’ ideas of what it means to be a lawyer. Students consistently report that they appreciate the opportunity for hands-on work and meeting with active practitioners.

The Case Studies Program has produced a short video featuring Professors Todd Rakoff and Joe Singer, authors of several PSW case studies and creators of the course in its current iteration. Professors Rakoff and Singer discuss how PSW came to be, how it addresses shortcomings in legal education, their experience teaching the course, and insights about their favorite case studies, such as Landlord’s Dilemma and Medical Stent. The video also includes interviews with students about their experience in the course and footage from PSW classrooms.

The PSW format has inspired other HLS professors, including Jonathan Zittrain, John Palfrey, Charles Nesson, and Susan Crawford, to expand into “advanced” problem solving courses in Internet and Society, Intellectual Property, and Cyberlaw.

PSW case studies are very low cost or free and available to the public on our website: Harvard Law School | The Case Studies. Look for them under “Workshop-Based Case Studies.”

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3 New Teaching Notes Available, In Time for Fall Classes

Looking to teach decision making, leadership, copyright, or problem solving this fall? We just released three new teaching notes, free for educators, for-profit trainers, and staff at non-profit or educational institutions:

Richard Goldstone

Richard Goldstone

Reputation, Credibility, and the Goldstone Report (A) and (B), a discussion-based case study from Professor Philip Heymann, teaches students how to lead and discern truth during controversy. The protagonist, Jewish South African jurist Richard Goldstone, was tasked with investigating human rights violations of the Palestinian-Israeli conflict, to the scrutiny of the international community. The teaching note outlines four “discussion pastures”: the boundaries between law and politics in international conflict, the intentions behind intervention, Goldstone’s fact-finding process and judgment, and the ways a leader navigates stakeholder groups and competing objectives. Ultimately, participants consider: can fact-finding ever be objective?

Goldstone Teacher’s Manual:

For Educators/Non-Profits

For For-Profit Trainers


Dominique Strauss-Kahn

Cyrus Vance and Dominique Strauss-Kahn: Dilemmas in a High-Profile Prosecution (A), (B), and (C), a discussion-based case study also by Professor Heymann, chronicles the prosecutor’s challenges during the sexual assault allegations against Strauss-Kahn, Managing Director of the International Monetary Fund. The teaching note explores discretion and the politics of prosecution, the repercussions of prosecutorial decisions, and the method of gathering evidence and hypotheses. Can prosecutions be unbiased? Should they be? And how should prosecutors judge themselves ethically? The discussion questions posed in the teacher’s manual not only allow participants to consider and articulate their own ethical standards, but also walk through procedural strategies for building a strong case.

DSK Teacher’s Manual:

For Educators/Non-Profits

For For-Profit Trainers

JoelM_copyrightChing Pow: Far East Yardies!! is an advanced problem solving workshop case study from Professor Charles Nesson. The case itself is about a filmmaker’s international quest to legally use an orphan work, but the teaching note outlines activities for a two-day or four-day workshop exploring the possibilities around a public realm registry of orphan digital works, with the Creative Commons framework as a potential model. The teaching note provides discussion questions about derivative works, the protagonist’s options, stakeholders in the copyright regime, and the relationship between U.S. and international copyright law; research assignments about Creative Commons and international orphan works statutes; policy assignments proposing new models for copyright law; and an in-class activity to build consensus around the class’ different policy recommendations.

Ching Pow Teacher’s Manual:

For Educators/Non-Profits

For For-Profit Trainers

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Crossing the Line: The Dos and Don’ts of a Cross-Deputization Agreement

New Product: The Case of Cross-Deputization

Professor Joseph Singer’s new problem solving workshop case, “The Case of Cross-Deputization” teaches first-year law students the basics of planning transactions and resolving controversy. In the simulated case, the conflict between the legal authority of the Spokane Tribe and of neighboring Lincoln County has made law enforcement difficult on the reservation’s borders, particularly when it comes to stopping drunk drivers. Tribal officers cannot pursue drunk drivers once they leave the reservation, and thus would like the authority to engage in “hot pursuit.”

Participants adopt the positions of either the Lincoln County Sheriff’s Counsel or Tribal Counsel to negotiate a cross-deputization agreement. The parties must reach a compromise regarding hot pursuit off of the reservation, ancillary areas of shared law enforcement, and the related costs and waivers that such a partnership entails. There is significant pressure to reach an agreement: a Washington state statute mandates an arbitrated cross-deputization if the parties cannot agree. However, the tribe has sovereign immunity, and cannot be forced into an arbitrated agreement without its consent.

Professor Singer wrote the case to fill a need in the HLS Problem Solving Workshop curriculum. “The case involves a contract negotiation between sovereigns, something that is in some ways similar and in other ways very different from business or family contracts,” said Singer. “It also involved settlement, not of a lawsuit, but of a problem created by applicable law setting baselines in a manner that interfered with law enforcement goals of both sovereigns. It also shows how negotiation can be an exercise, rather than alimitation, on sovereignty.

Like all Problem Solving Workshop cases, The Case of Cross-Deputization involves client interactions. “The case gives students the opportunity to present the agreement to the client and explain how it meets the client’s goals, what was worth giving up to achieve those goals, and what goals could not be attained. It put the students in a role as government lawyers advising clients, who have obligations to promote the public welfare, rather than lawyers who serve private clients, whose goals are somewhat different.”

The case teaches participants the fundamental best practices for a negotiation:

  • DO consider substance, process, and relationship. Skilled negotiators take as much care with the logistics of the negotiation as they do with the outcomes–especially when negotiating a partnership. By establishing fair norms and a problem-solving, cooperative dynamic with the other side, the negotiating parties foster impartiality, legitimacy, and buy-in.
  • DON’T just focus on the best agreement for your party. DO focus on the best alternative to a negotiated agreement (BATNA). Novice negotiators may not appreciate the power of failing to compromise. There is no need for a party to settle for less, if it could walk away to a more attractive outcome.
  • DO respect authority. Autonomy and status are among the core concerns that negotiating parties seek to protect; conflict arises when this basic humanity is disregarded. In The Case of Cross-Deputization, participants learn the importance of respecting tribal sovereignty. “The case study makes students aware of a ‘third sovereign’ or set of sovereigns that coexist with the state and federal governments but about which many students are unaware,” said Professor Singer. “The case ensures that the students do not emerge from law school ignorant of the government-to-government relationship that exists under federal law between federally-recognized Indian nations and the United States as well as the complicated jurisdictional relationships between Indian nations and state governments.”
  • DON’T judge the other side by its cover. Focusing on first impressions can ruin a negotiation. The positions each party brings to the table reflect a set of interests—usually the most obvious demands that would meet a set of underlying interests. The interests are the underlying needs, wants, goals, and worries. When parties focus on their different positions, it can seem like there is little common ground to work with; however, when parties understand their different interests, they can craft creative solutions that dovetail differences.

Through this role play exercise, students integrate these lessons and apply them to future negotiations. “The Case of Cross-Deputization” and related teaching materials are available on the Case Studies website.

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Negotiating Value: What is Art Worth?

New Product: Set Sale!

by Amanda Reilly

The new role play Set Sale! debuted this spring in the HLS Negotiation Workshop, receiving an enthusiastic response.  Chad Carr, author and lecturer on law at HLS, reported, “Students really seemed to enjoy negotiating the case.  There was a lot of energy in the room and students were very animated in their assessments of the climbing or plummeting value of the artwork, depending upon the side they represented.”

Carr wrote Set Sale!  to be the inaugural exercise in the Spring Negotiation Workshop. It exposes students to core concepts in negotiation theory and negotiation role-playing techniques and provides a foundation for the rest of the essential skills taught during the Workshop.

In determining the current context for the case, Carr explained, “In both law school and executive education settings, I wanted the case to have a relatable context. That was part of the reason for writing about art.  The sale of art looks largely the same around the globe.”  Set Sale! involves a law firm that is downsizing its physical space and as a result selling some of its art works. One piece in particular has recently received media attention because it was widely adopted as an emblem of solidarity and hope following a terrorist attack off the shore of Massachusetts.

Zone of Possible Agreement

Zone of Possible Agreement

One of the main learning goals is to understand the difference between value creation and value distribution.  The ambiguity of the value of the art creates “a large zone of possible agreement (ZOPA) between the parties making distribution a key challenge,” said Carr. “However, there are also opportunities for both parties to create value in the deal, rather than just distribute value.  Those opportunities include the allocation of transportation and art storage fees, as well as finding ways for the museum to help promote the law firm’s new brand.”

Carr also added, “We want student-negotiator pairs to come to agreement on a variety of outcomes.  Seeing that there is a range of potential outcomes does two things.  It primes students to think about what constitutes a good outcome.  It also forces them to challenge their assumptions—for example, ‘Was I really in a weak position?’ or ‘What were the factors limiting my counterpart?’”

Set Sale! also allows students to experience firsthand the principal-agent problem. During the negotiations, students must disentangle their client’s best interests from their own goals and needs.   Carr reflected, “Students on both sides of the case take on the role of attorneys representing a client.  Since this is a law school, we want students to start engaging with some of the principal-agent tensions that arise in any representation.”

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Do Prosecutorial Tactics Optimize Justice? Reconsidering Discretion in Charging and Plea Bargaining

New Product: “Prosecutorial Discretion in Charging and Plea Bargaining: The Aaron Swartz Case

In January 2011, an Assistant United States Attorney in Massachusetts’ Internet and Computer Crimes Unit was assigned a case from MIT. For months, a guest on the MIT computer network had been downloading much of the online journal database JSTOR; the magnitude and speed of downloading had disrupted JSTOR servers and caused MIT to lose access to the database for three days. Suspecting cybercrime, MIT police had asked for assistance from local authorities. It had become a federal case.


Aaron Swartz

The suspect had been traced and apprehended. The man was 24-year-old Aaron Swartz, an Internet prodigy who had worked on the web feed known as RSS 1.0, the social news website Reddit, and other tech projects since his early teens.

The prosecution offered a plea bargain involving three months imprisonment, but Swartz refused to plead guilty to any felony counts. Pre-trial negotiations intensified when the prosecution learned of the Guerilla Open Access Manifesto, authored in part by Swartz, which declared that “we need to take information, wherever it is stored, make our copies and share them with the world.” In July 2011, Swartz was charged with wire fraud, computer fraud, unlawfully obtaining information from a protected computer, and recklessly damaging a protected computer; the maximum sentence was 35 years in prison, but sentencing guidelines suggested that Swartz would face either probation or five to six years in prison.

A year later, a superseding indictment increased the counts. Other plea bargains were offered; the defense came back with different proposals; the negotiations reached a stalemate. Both parties had played the bargaining game and failed. Swartz would go to trial, a prospect costly for each side, and if Swartz were found guilty, the judge might issue a sentence that failed to meet the objectives of either side.

Then, two years after Swartz’s arrest, months before the trial proceedings would begin, Swartz committed suicide.


Swartz’s family said of his death, “It is the product of a criminal justice system rife with intimidation and prosecutorial overreach.”

U.S. Attorney Carmen Ortiz responded to these claims. “There is little I can say to abate the anger felt by those who believe that this office’s prosecution of Mr. Swartz was unwarranted and somehow led to the tragic result of him taking his own life,” she said. “I must, however, make clear that this office’s conduct was appropriate in bringing and handling this case. [The prosecutors] took on the difficult task of enforcing a law they had taken an oath to uphold, and did so reasonably.”

Did the prosecutors make the best decisions they could have at the time? When their plea bargain strategy failed and a suboptimal deal seemed likely, should the prosecution have changed course? What would have been the repercussions of drastically changing their strategy?

The case study “Prosecutorial Discretion in Charging and Plea Bargaining: The Aaron Swartz Case” explores the logic behind the controversial prosecutorial discretion in Swartz’s case. Participants discuss prosecutorial decisions at five turning points: the initial charges, the pre-indictment plea offer, the indictment, subsequent plea offers, and the superseding indictment.

Professors Adriaan Lanni and Carol Steiker, who developed this case for their Adjudication course at HLS, chose to teach charging and plea bargaining with the case study method because of the reflection and perspective that narratives provide. By taking participants through the decisions in the order and context in which they occurred, the case study sidesteps hindsight opinions. Participants do not merely cast judgment on the decisions made—they are asked to inhabit the pressured environment facing the prosecution and think through how they would make those difficult decisions themselves.

The Aaron Swartz case study affords law students a lasting example to guide their philosophy of prosecution. At the end of the class discussion, participants consider if there are systemic flaws in our nation’s criminal justice, and what place prosecutorial discretion should have in that system, or if it perhaps had no place here.

“Prosecutorial Discretion in Charging and Plea Bargaining: The Aaron Swartz Case” and related teaching materials are available free of charge through the Case Studies website.

Elizabeth Moroney is the Case Studies Program Editorial Assistant and an author of the case.

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Case Studies around the University: Training Med Students to Negotiate Acceptable Health Outcomes

Last week, we discussed the origins of case-based learning at Harvard Medical School, a curriculum that teaches medical students a new methodology: how to learn what they don’t know.

In 2001, HMS turned to case studies to address another gap in the medical curriculum: culturally competent care. Physicians must tailor their care to the way that patients understand authority, family dynamics, communication, gender and sexuality, spirituality, and the role of the physician—a task that requires not rote knowledge, but strategic thinking, sensitivity, and social awareness.

The Culturally Competent Care Education Committee culturally-competent-doctorscreated case studies to bring these skills to instructors, residents, and students. These case studies narrate a patient’s medical history and ask students to apply their medical knowledge, but also have a latent cultural dimension. For instance, in “A Pain in the Knee,” students are asked to identify the cultural issues that exacerbated the pain of a cancer patient from the Bronx. The doctors in the case study failed to provide the patient sufficient palliative medicine because of his history of drug addiction, and overlooked the race-based problem of access in New York City: the patient could not fill his prescription, because many pharmacies in “predominantly non-white neighborhoods” understock pain medications.

Doctors, like lawyers, need to be competent interviewers and negotiators. Ultimately, says the CCCEC, “a physician should engage in negotiation with the patient to try to achieve the best possible outcome.” The case studies give students a space to think about cultural issues before their clinical practicums, when the actual negotiations will take place. Medical students can imagine how they might negotiate their own standards of acceptable care while working around obstacles in access and communication.

The case studies illustrate the moral hazard of hard bargaining—these are scenarios where the alternatives to a negotiated agreement could be deadly. As such, the CCCEC acknowledges that sometimes successful negotiations achieve “acceptable,” rather than “optimal,” health standards. This lesson is one familiar to legal negotiators. If a patient fails to trust the doctor or see the process as fair, the healthcare system becomes illegitimate. It is better to adopt a realistic healthcare recommendation rather than compromise the doctor-patient relationship.

Click here to read more about how law schools can learn from the medical school model. If you are interested in case studies about culturally competent lawyering, see our teaching unit on “Mediating Value-Based Conflict.”

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Case Studies around the University: Training Med Students to Think with Authority

Medical schools have traditionally trained doctors through a combination of cramming and clinicals. But Harvard Medical School, like Harvard Law School, has recognized the value of the problem solving pedagogy and participatory learning. Since 1985, HMS has incorporated case-based tutorials into the “New Pathway” curriculum.

Harvard Medical School

The tutorials at HMS are ungraded discussion groups that analyze patient stories as they unfold, explains HBS Professor David A. Garvin in his review of case-based learning at Harvard. The multi-part cases systematically review symptoms, physical examinations, lab tests, diagnosis, treatment, and the patient’s health over time. For each part, students work together to fill in knowledge gaps and set learning goals that lead them closer to answers. Ultimately, students present their findings in a group discussion before moving to the next part of the case.

Tutors ensure that the learning comes from the students, asking students to articulate their logic, consider substantive dimensions, and investigate further. Tutors do not manage, steer, or orchestrate, says Garvin; instead, tutors redirect conversation during points of confusion.

The teaching philosophy at HMS is a case study in its own right, offering to educators a healthy caveat against overly sculpted lesson plans and micromanaged discussion. Preliminary studies suggest that the New Pathway curriculum meets its objective to “foster a true spirit of inquiry.”

One study of HMS students showed that compared to traditional lecture- and lab-based education, the New Pathway curriculum encouraged more students to pursue primary care or psychiatry. New Pathway students felt better prepared to practice “humanistic medicine” and handle “psychosocial problems,” said the report.

In another study, New Pathway students reported more engagement with the material and stronger relationships with faculty, but found it stressful to navigate tutorial relationships and the vast body of medical knowledge. The authors of the report concluded, “These experiences are similar to challenges that successful clinicians must overcome during their professional socialization. Uncomfortable though these experiences may be, students exposed to them during medical school may arguably be better prepared for life-long learning and the strains of teamwork.”

Despite the stress of uncertainty, New Pathway students rivaled students of traditional medical education on measures of problem solving skill and biomedical knowledge. Self-directed learning, it seems, can adequately prepare students for the medical profession. And the value of the problem solving approach lies not in a competitive edge, but in the culture it produces: a fulfilling, emboldening learning environment realistic about the challenges ahead.

For a history of case-based learning across the university, see “Making the Case” in Harvard Magazine. Written in 2003, this article shows how the cross-pollination of ideas transformed the case method, which, years later, returned to Harvard Law School as the case study method our program uses today. Click here to read more about how law schools can learn from the medical school model.

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Case Studies around the University: Appreciating Identity through Religious Conflict

A case-based General Education course at Harvard College studies religious conflict in the unlikeliest of places: our own backyards. Launched in fall 2007, Professor Diana Eck’s “The World’s Religions in Multicultural America: Case Studies in Religious Pluralism” shatters the illusion that freedom of religion in America brings harmonious coexistence—instead, this freedom has put religions in direct contact, conversation, and conflict. Professor Eck’s class uses the case study method to fulfill a primary goal of the required undergraduate curriculum: “not to draw students into a discipline, but to bring the disciplines into students’ lives.”

The Pluralism Project at Harvard University, a research and resource-sharing venture in religious diversity founded and directed by Eck, developed these case studies organized by “Sites of Encounter”: schools and universities, city halls, suburbs, workplaces, and memorials. The selected problems were either nationally provocative, such as the “Mosque at Ground Zero”; locally consequential, as when the city of Cambridge considered adding the Muslim holidays Eid al-Fitr or Eid al-Adha to its school calendar; or internationally relevant, like the domestic traces of Middle Eastern conflict between Jews and Muslims.

I took this course in fall 2011; it was my first introduction to the case study method. The class centered on written and verbal discussion, and each student was encouraged to share their personal religious perspective. The diversity came alive in the classroom, proof that the lessons were widely applicable. Now, working at Harvard Law School, I imagine these case studies could be spun to teach future lawyers and leaders to interpret anti-discrimination law, negotiate and mediate faith-based controversy, advise local governments, and make fair and informed decisions on behalf of a diverse constituency.

“Driven by Faith or Customer Service? Muslim Taxi Drivers at the MSP Airport” asked us to articulate deeper, unspoken issues and to consider the risks of action and inaction in intractable conflicts. Other case studies required us to respond effectively to propaganda and religious rhetoric—rather than trying to change or dismiss certain viewpoints we considered inflammatory or incorrect, we had to legitimize every opinion and change our responses.

There were no exams to prove oneself as righteous or superior; it would have undermined the very point of the course. Rather, Professor Eck gave real attention to cultivating reflective, empathetic minds.

For the final project, each student wrote a contemporary case study about religious conflict—we were able to identify nascent crises around us, inhabit another’s perspective, and apply our problem solving skills to a novel situation.

Three years later, I don’t remember the names of every case study’s protagonist or all of the discussion questions asked, but I find myself approaching conflict with a greater appreciation of individual identity. So rarely in conflict do we value interpersonal skills to the extent we do strategy or power. Only by participating in these conflicts myself could I learn that.

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Law Professors: Still Stuck in the Same Old Classroom?

Last summer and fall, the Case Studies Program at Harvard Law School set out to learn more about what kinds of teaching methods and materials law school professors used. We sent out surveys to approximately 1,000 faculty and deans at law schools throughout the country and received about 290 responses.  We wanted to know whether the buzz about innovation in the legal classroom reflects reality. Are faculty using more participant-centered, experiential methods? Or are lectures, casebooks, and the Socratic method continuing to dominate?

On first blush, we found what looked like a revolution. The chart below shows that class discussion was used far more than lectures and the Socratic method. An astonishing 98% of our respondents reported using class discussions frequently or occasionally versus 79% using lectures and 69% using the Socratic method frequently or occasionally. Although over 80% of our respondents reported that they “rarely or never” use the more innovative “flipped classroom” method, 79% used role plays, hypotheticals, and simulations and 73% reported using group exercises frequently or occasionally. Taken together, these findings seemed to point to a real change in how the law is taught.

But a deeper look at the materials used in the classroom shed more light on the methods reported in the previous slide. For example, 63% of respondents reported using casebooks frequently, followed by 61% using problems, hypotheticals, and discussion questions found in casebooks, and 49% using lecture slides and handouts. Only 36% used discussion-based case studies frequently and only 23% used workshop-based case studies frequently. This leads one to infer that casebooks and case teaching continued to be the primary method for teaching legal doctrine.  We also theorize that the discussions and role plays being reported in the methodologies question are brief departures during a lecture-based class, rather than an entire class devoted to engaging students as participants in the learning process.

Based on these results, it seems that law professors are making room in their courses for student interaction through discussions, hypotheticals, and role plays, but there is still a long way to go before learning becomes a participant sport. And the more cutting-edge innovations such as workshops and flipped classrooms are rare indeed. This supposition is even stronger when one considers that most likely those who chose to respond to our survey are more interested and engaged with experiential learning.

Another finding from the study was that, by far, the most common source for experiential materials was the professors themselves, with 90% reporting that they used self-written materials. Other reported sources were other professors and schools (nearly 40%) and online resources (nearly 30%).

The vast majority of respondents self-identified as professors (including associate and assistant professors). Most taught doctrinal courses, with a few teaching clinical, LRW, skills, or a combination.

We are still collecting data through our survey.  If you would like to take part, go to this link.


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“Far East Yardies” in the Classroom

the emotional stakes of legal analysis

By Saptarishi Bandopadhyay

In a sense, the Ching Pow: Far East Yardies!! case study is a prequel to cases in the Langdellian tradition. Where the latter begins with the facts elaborated on in a judicial opinion, Ching Pow speaks to the abundance of conflicts that may not get their day in Court. Where a traditional reading of judicial opinions may elaborate on existing rules and precedents, with the judges’ careful and seemingly objective weighing of competing arguments, Ching Pow outlines the early interaction between the creative process and the legal system within which the artist and his works find value. Additionally, the narrative in Ching Pow is designed to have students enjoy the work of filmmaker, Bruce Hart, and thereby invest in what becomes of his efforts.

Ching Pow proceeds with the understanding that before launching into a study of the complex, globalizing system of intellectual property protection, it is important to consider what is at stake. There are certainly financial stakes, but Ching Pow focuses on the extra-monetary aspects of the problem. Ching Pow is a film made on a modest budget, paid for almost entirely by corporate sponsorship, and while Bruce would like to see his film succeed, the case emphasizes his struggle to bring his work before an audience.

Bruce Hart’s story is a microcosm of how a piece of art is made by an independent artist with limited resources and a believable sincerity of intent.  Bruce had the innovative idea to take a series of forgotten B-grade martial arts movies (‘Ninja Death I-III’) and—with considerable effort, and collaboration with other artists (like Jamaican comedians Twin-of-Twins)—produce a film with a unique narrative that would appeal to a Jamaican audience as political satire and pop-culture commentary. We’re talking Chinese martial artists and ninjas possessed by the souls of Jamaican politicians and pop-culture idols displaced by an ecological catastrophe in Jamaica.

As an independent filmmaker Bruce found footage of the original movies on a website claiming to supply films in the public domain. By the time the remake was completed, however, Bruce realized that the films did not reside cleanly in the public domain, but rather languished in a grey category of “orphan works” with some traceable copyright holders. The case outlines Bruce’s painstaking and financially draining efforts to locate this copyright holder, beginning in East Asia and circling back to the United States, while simultaneously trying to find creative ways to release his work to a local audience in Jamaica.

With his brand of filmmaking Bruce Hart follows a lineage of transformative use that is well-established in intellectual property case law. However, when the case study was taught last fall in Professor Charlie Nesson’s advanced problem solving course “Internet and Society: Creating the Public Domain,” students had little or no formal training in the subfield and were for the most part unaware of the case law. The  few who were aware of past disputes involving mash-ups and fair use did not know the details of the resulting judicial opinions.

Prior to class, the students were given some background literature on copyright licensing, and asked, first and foremost, to consider the value of Bruce’s work, and whether such an evaluation is at all relevant when thinking about legal solutions to his unique problem. Students were encouraged to collaboratively research orphan works and the kinds of governmental policies that would apply to Bruce’s film. Based on their findings, sections of the class debated what a functional “public domain” may look like, and the kinds of scrutiny an individual filmmaker (with little or no institutional support in the form of law firms and studio executives) should be subjected to, when judging whether his film fairly appropriates existing works. In effect, Ching Pow asks students to draw broad conclusions about the stakes underpinning law and policy, at the intersection of an institutionalized system of intellectual property appropriation and the less clinically ordered but nevertheless rigorous and systematic process of creative production. Finally, Ching Pow and the workshop asks students to imagine how legal representation itself may be conducted as a creative process, an art, capable of assisting someone like Bruce Hart.

When Professor Nesson raised the initial questions, students offered ideas, then second-guessed themselves, and finally sought clarifications from the instructor. But perhaps because there was a sense of investment in the possibilities for Bruce and his film, it was not long before other students began to offer their understanding of both American and global intellectual property laws. Their experiences and opinions drew on moral and political theory, cultural criticism, and even literary theory. Without realizing it, the students were often outlining the very same theoretical premises and practical choices that legislators and judges have to struggle with when assessing intellectual property issues. Most importantly, Ching Pow prompted students to think analytically while appreciating the emotional basis of Bruce Hart’s dilemma—recognizing that intellectual property law is ultimately as much about perpetuating personal and cultural legacy as it is about financial gain from private property.

Saptarishi Bandopadhyay is an S.J.D. candidate at Harvard Law School and the co-author of the case study “Ching Pow: Far East Yardies!!”

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