COLLOQUIUM

... as featured in

Courses for Hire?
[discussion began December 4, 1999]

Harvard Law School professor Arthur Miller has been accused of providing course content to a competing law school, contrary to a Harvard policy prohibiting faculty from teaching elsewhere during the academic year without permission.

Miller has provided a set of videotaped law lectures to Concord University School of Law, the online distance-education law school owned by Kaplan Educational Centers. Miller is a member of Concord's Board of Advisors.

Should a law professor be allowed to provide his online or offline lectures to whatever institutions he wishes? Send your comments using the form below or e-mail JURIST@law.pitt.edu.

[Afterword (April 25, 2000): Miller eventually chose to give up his Concord course; on April 25, 2000 a Harvard committee advanced a proposal forbiding faculty to teach, conduct research or offer consulting outside of Harvard, either in person or online, without permission from the appropriate dean. An AP wire story quoted Professor Miller as saying "Now I have to justify everything I do...I find it offensive I now have to go through a process I haven't had to go through in 35 years." The policy, Miller said, offended the principle of academic freedom: "The question is whether my contract bounds me exclusively to Harvard Law School, or whether I have free choice," he said.]

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• [S.H. Davidson, Esq. and Glenn J. Violett, California] Arthur should not be prohibited from providing his materials for educational institutions and students who will benefit mightily , from his supurb research, writing and editing; his intellectual property should be his province so long as it was his development and not those of his TF's, TA's or other staff from HLS.

  It seems to us Dean Clark suffers from [Ted Leavitt's] "marketing myopia" and he should explot the success of Arthur as a cherished member of the HLS faculty.

  As for "teaching" elsewhere, how many of the HLS faculty (and HBS and JFK, etc.) are consulting "on the side" -- is that not as serious a "distraction" to their contract as "teaching"?

  We think Dean Clark is making a serious error. Not his first.

• [Edward Komito, 2L, Concord University School of Law] In reviewing some of the comments below, I felt it would be useful to clear up a few points on what Prof. Miller does and does *not* do in his lecture series.

  To begin with, Prof. Miller does not interact directly with the students at Concord. We cannot e-mail him, call him on the phone or ask him questions. Nor does he ask specific questions of any particular student. To my knowledge he does not know our names or even the number of students who are hearing his lecture. He does not provide us with tests nor does he grade us.

  Thus, to the extent that one is left with the impression that Prof. Miller "works" for two institutions, I believe this may be something of a misnomer and may call for a more specific definition of what is "work".

  What Prof. Miller does do is what many educators do. There are any number of talented professors (legal and otherwise) who will record a generic lecture or series of lectures and make those available to those who wish to purchase them. (I believe Prof. Miller has done just such a thing in the past.)These professors (hopefully) impart their knowledge, while of course, still retaining their affiliation with the university where they teach. The same thing occurs here, albeit with a somewhat more restricted audience.

  Some of the arguments against Prof. Miller's lectures at Concord seem to be predicated on his being compensated for his lectures. Suppose then that Prof. Miller decided to offer his lectures to Concord for free? Is the voluntary and uncompensated imparting of knowledge considered "work"?

  Apparently Harvard accuses Prof. Miller of providing course content to a *competing* law school. Many of us have noted with interest and great pleasure that Harvard has titled Concord a *competing* law school. Speaking for myself only, I wish to thank Harvard for the complement paid to our school. We will continue to work hard to live up to your high expectations of us.

  Finally, on a more serious note, one must ask who owns Arthur Miller? Who owns his thoughts, his style, his intellectual property and being? Outside of the academic year, does Prof. Miller have the right to share his ideas (compensated or not) with those who wish to know and learn from him? I say emphatically that he does.

• [William Slomanson, Thomas Jefferson School of Law] If I were a member of a law firm, I wonder if my fellow lawyers would be concerned about my working for another firm? This question has two dimensions: (1)Would it be a conflict of interest, in the sense that I would be serving two masters? (Would it matter that the two firms serve different clients? If one were launching an approach designed to replace the other? (2)Would it be consistent with my role as a lawfirm member to be providing my talents to another firm, at a time when I would be paid to further the interests of my primary firm? My teaching a course as an adjunct at a law school and my teaching a bar review course, OTOH, would appear to be furthering the greater glory of my law firm, no?

• [Karen Alvarez, attorney, Washington DC] This is an interesting issue . When I was in college and graduate school in the 70's there were a number of controversies involving professors who taught at two or more universities . As I recall, they all concerned schools quite far apart, and the issue was framed in terms of the professor's inability to perform on-campus duties or unavailability to meet with students during office hours. The issue was not framed as one of proprietary right to the professor or to the forum in which he articulates his ideas. Harvard is adopting a new model of the university that negates ancient principles and , unfortunately, gives new substance to the term "academic marketplace."

The discussion goes on...

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