Ipse Dixit

In this episode, Jorge L. Contreras, Distinguished University Professor, James T. Jensen Endowed Professor for Transactional Law, and Director of the Program on Intellectual Property and Technology Law at the University of Utah S.J. Quinney College of Law, discusses his draft article "Silly Patents." Contreras begins by describing why patents exist and how the patent system works. He observes that some patents are unusually "silly," because it doesn't seem like they should exist. He explains why the Patent Office issues silly patents and reflects on what they can tell us about the patent system. Contreras is on Twitter and Bluesky.This episode was hosted by Brian L. Frye, Spears-Gilbert Professor of Law at the University of Kentucky College of Law. Frye is on Twitter at @brianlfrye and on Bluesky at @brianlfrye.bsky.social.

In this episode, Nikola Datzov, Associate Professor of Law at the University of North Dakota School of Law, discusses his article "AI Jurisprudence: Toward Automated Justice," which will be published in the Northwestern Journal of Technology and Intellectual Property. Datzov begins by briefly explaining how AI models works and why judicial systems are primed to use them in certain ways. He provides a taxonomy of how judges could use AI models. And he reflects on benefits and risks associated with the judiciary's use of AI.This episode was hosted by Brian L. Frye, Spears-Gilbert Professor of Law at the University of Kentucky College of Law. Frye is on Twitter at @brianlfrye and on Bluesky at @brianlfrye.bsky.social.

In this episode, Mark Edward Blankenship, Jr., Assistant Professor of Law at St. Thomas University College of Law, discusses his article "Reconsidering the 'Aesthetic Nondiscrimination' Doctrine in American Copyright Law," which is published in the Berkeley Journal of Entertainment and Sports Law. Blankenship begins by describing the origin of copyright's so-called "aesthetic nondiscrimination" doctrine. He explains how scholars have characterized its purpose of problems. And he analyzes the doctrine in light of discrimination law.This episode was hosted by Brian L. Frye, Spears-Gilbert Professor of Law at the University of Kentucky College of Law. Frye is on Twitter at @brianlfrye and on Bluesky at @brianlfrye.bsky.social.

In this episode, John Tehranian, Paul W. Wildman Chair and Professor of Law at Southwestern Law School and a founding partner of One LLP, discusses his new book, "The Secret Life of Copyright: Intellectual Property and Inequality in the Age of AI," which is published by Cambridge University Press. Tehranian begins by describing the critical IP theory movement and how his work fits into that movement. Then he explains how copyright doctrine creates systemic inequality in the allocation and use of copyright, through its definition of ownership, joint authorship, and derivative works, as well as the relationship between copyright and the First Amendment. Tehranian is on Twitter. This episode was hosted by Brian L. Frye, Spears-Gilbert Professor of Law at the University of Kentucky College of Law. Frye is on Twitter at @brianlfrye and on Bluesky at @brianlfrye.bsky.social.

In this episode, Stephen Cicirelli, a Lecturer of English at Saint Peter’s University, discusses philosophy, literature, and plagiarism. He begins by reflecting on his studies of Kierkegaard, and how it influenced his later work as an author. He describes some of his recent fiction and how it incorporates elements from his study of philosophy. And he explains how he addresses plagiarism and AI as a creative writing instructor. Cicirelli is on Twitter.This episode was hosted by Brian L. Frye, Spears-Gilbert Professor of Law at the University of Kentucky College of Law. Frye is on Twitter at @brianlfrye and on Bluesky at @brianlfrye.bsky.social.

In this episode, Thomas Basboll, a resident writing consultant at the Copenhagen Business School and the author of the Inframethodology blog, discusses his work on plagiarism, among other things. Basboll begins by introducing himself. He then discusses a series of articles he wrote on a plagiarism incident in the discipline of critical management studies. He reflects on the reaction to his articles - or the lack thereof - and what it can tell us about the institutional role of academic plagiarism norms. He also discusses alternative approaches to pedagogy and plagiarism that could be more effective. Basboll is on Twitter.This episode was hosted by Brian L. Frye, Spears-Gilbert Professor of Law at the University of Kentucky College of Law. Frye is on Twitter at @brianlfrye and on Bluesky at @brianlfrye.bsky.social.

In this episode, Bill Childs, a partner at Bowman and Brooke LLP and an adjunct professor at Mitchell Hamline School of Law, discusses his new casebook "Recreation and Risk," which is published by Carolina Academic Press. The book provides all the material for a law school class on the law of amusement parks, which covers torts, contracts, insurance, criminal law, and more. Childs begins by explaining how he became interested in amusement parks and the legal issues surrounding them. Then he explains why the subject matter makes for such an effective law school class, with a significant practical and experiential element. Childs is on Bluesky.This episode was hosted by Brian L. Frye, Spears-Gilbert Professor of Law at the University of Kentucky College of Law. Frye is on Twitter at @brianlfrye and on Bluesky at @brianlfrye.bsky.social.

In this episode, Courtney Cox, Associate Professor of Law at Fordham University School of Law, discusses her new article "Super-Dicta," which is published in the University of Pennsylvania Law Review. Cox begins by explaining what she means by "super-dicta," then reflects on what the concept can tell us about the judging process and jurisprudence more generally. Here is the abstract:A weird thing happens when a conscientious, rational judge lacks certainty and has the humility to know it: she will often decide cases for reasons that differ from the reasons in her opinions. To illustrate, suppose she thinks it’s 50/50 whether Defendant’s copying infringed or was fair use. She could rationally flip a coin. But if she does, and she finds for Defendant, it will not be because of fair use. Rather, it will be because she thought it was 50/50 whether the copying was fair use—and the coin landed tails.Coin-flip cases are rare, but uncertainty is not. There are more sophisticated tools for responding rationally when the judge’s doubts about what she ought to do are not in complete equipoise. And so, the point remains: when a judge is uncertain about what she ought to do and is rational in pursuit of that aim, the actual reason for her decision and the ratio decidendi will diverge. And unlike much of the literature arguing we cannot take opinions at face value, the phenomenon I describe arises from anti-cynical premises: a judge who aims at what is right.I call the judge’s actual reasoning “Super-Dicta.” Super-Dicta is so-called because it is super important: it is directly necessary to the decision—and not just causally, but as part of a judge’s rationale. But even though it is the decisive reasoning, it would appear to have the status of dicta: whether expressed, or not, Super-Dicta is not purely objective, limited to law or facts. It encompasses the judge’s subjective reasoning based on her uncertainty. That is, it is reasoning that resolves a case that is hard for the judge, not just hard.Should Super-Dicta appear in an opinion? That normative question is probably moot, at least if understood as one of substantive jurisprudence. While a coin flip may be rational, disclosing it is not. Accordingly, a judge responding rationally to uncertainty will not disclose that in her opinion. And if she tries, the resulting legal standard would turn on an odd consideration: facts about the judge, namely, that she is uncertain and the extent of her doubts. The result: judicial opinions—at least those by mere mortals—can be transparent or objective, but not both. So-called “hard case” doctrines must be revisited in this light.Cox is on Twitter and Bluesky.This episode was hosted by Brian L. Frye, Spears-Gilbert Professor of Law at the University of Kentucky College of Law. Frye is on Twitter at @brianlfrye and on Bluesky at @brianlfrye.bsky.social.

In this episode, Saurabh Vishnubhakat, Professor of Law and Director of the Intellectual Property and Information Law Program at Cardozo School of Law, discusses his draft article "Constitutional Structure in the Patent Office." Vishnubhakat begins by explaining how the patent application or "prosecution" process works, how the Patent Office adjudication process is structures, and how Patent Office administrative law judges are appointed. He then explains why the appointment process creates a constitutional problem under the Appointment Clause, based on recent Supreme Court opinions. Finally, he explains how the problem could be solved, and why the solution might improve patent policy and the patent adjudication process. Vishnubhakat is on Twitter and Bluesky.This episode was hosted by Brian L. Frye, Spears-Gilbert Professor of Law at the University of Kentucky College of Law. Frye is on Twitter at @brianlfrye and on Bluesky at @brianlfrye.bsky.social.