The BLS Advocate

Visiting Professor Q&A: Jane Yakowitz

Professor Jane Yakowitz is currently in the second year of her visiting assistant professorship at Brooklyn Law School. Her scholarship on data privacy has been widely cited in recent policy debates.

Prof. Yakowitz submitted an amicus brief in IMS Health v. Sorrell, a case decided by the Supreme Court in June, in which the Court struck down a Vermont law restricting certain data mining activities. Her brief argued that the current standard required by HIPAA to anonymize health data is sufficient to protect patients’ privacy. You can read more about the case and Prof. Yakowitz’s analysis here.

Before coming to BLS, Prof. Yakowitz directed a research project at UCLA School of Law called Project SEAPHE.

BLSA: Can you tell us how you got where you are– what got you interested in law, what made you decide to teach, and what brought you to Brooklyn?

JY: I entered law school for no particularly good reason. I guess I was one of those default law students. I went straight after college, and I majored in math when I was in college, so this was quite a departure from my original training and that’s what I liked about it. I was tired of toiling away on theoretical math and wanted to learn more about people. I ended up taking a class on empirical legal studies, which asks whether empirically laws do what they think they’re designed to do. It was data-driven research, so it was a great way for me to combine skills from my math training with some of the harder and I think more interesting problems in legal studies.

I ended up running an empirical research project [Project SEAPHE] at UCLA for 3 years, doing my own data-driven research. And in the process of doing that I also ended up doing more lawyering than I thought I would because one of my responsibilities was putting together a brand new public data set that researchers could have access to in order to study legal education questions and also just general higher education questions. So that required me to learn more about data in a policy sense; I had to learn about privacy laws and public records, access laws — a lot of my interest in privacy actually came from an interest in doing data-driven research.

This was my first year teaching, which was wonderful. It was great. I love my students at BLS. Coming to BLS I had a chance to really build out my scholarship on data privacy. Now that I’m teaching law I end up sort of reaching back to past research that i’ve done on, say, bar passage or the importance of law school grades in the labor market for lawyers. I do end up taking advantage of my past research and I find it’s very useful to have hard statistics.

BLSA: What were the highlights of your findings at Project SEAPHE (Scale and Effects of Admissions Preferences in Higher Education)?

JY: The conventional wisdom is that you should always go to highest ranked [law] school that accepts you because firms like prestige. That used to be true, but employers have learned over past decades that someone who performs well at a lower ranked school will actually have stronger lawyering skills than a person at the bottom of the class in a higher ranked school.

BLSA: Onto your other area of expertise: data privacy. Privacy is a hot topic in Congress right now, with many advocates arguing for comprehensive data privacy legislation to protect consumers’ personal information. What is your position?

JY: I definitely think privacy is a real interest and there ought to be and will be times that privacy is a strong enough interest to counteract interest in information gathering and sharing. I’ve been following various bills attempting to tackle web surveillance technologies, and the vast collection of data mined from people using the Internet.

My position is not anti-privacy, but it’s a little more nuanced than the average privacy advocate. I think there are certain types of online information that can be collected without being especially creepy or offending our sense of privacy. If I’m communicating directly and purposefully with a website in some way then the website is a participant to the communication so I think that there’s a lesser privacy interest that I might have — so if I tell Pandora I like Radiohead, it’s not especially troubling to me that Pandora knows I like Radiohead. On the other hand, websites collect extremely detailed information that people are not aware of. I’m working on an article right now that considers whether tort law can come to the rescue.

BLSA: Do you have any particular thoughts on social networking privacy, and particularly in the legal profession? Do employers have the right to dig through applicants’ profiles and other info available about them online to help with hiring decisions?

JY: Social networking privacy is really difficult. I’m pretty close to saying it’s an oxymoron at this point. Any public facing profile is just public and one can’t have too high an expectation that others wont google them and find the information.

I’m also interested in discrimination law, and privacy and discrimination are close cousins.  I don’t think that social networking profiles should be off limits because I think employers face difficult decisions. There is even tort liability for negligent hiring, so there’s some duty to make sure employees don’t pose risk. If [employers] feel it’s necessary to google an applicant to make sure there’s nothing that shows extremely poor judgment or other major red flags, they should delegate the googling task to an associate who is not in charge of the hiring decision, and that person should be given set of very narrow and specific questions to answer, and after answering those questions shouldn’t share or divulge any additional information about what they saw. That is the advice employment firms have been giving to their clients and I think that’s really good advice.

BLSA: Last but certainly not least, on a more personal note — how is the wedding planning going? Are you willing to share your plans?

JY: The wedding planning is going great. Professor Bambauer and I are both very happy.

Visiting Professor Q&A: Irina Manta

Professor Irina Manta is visiting BLS this academic year from Case Western Law School, where she focuses on property and intellectual property studies. This year, she’ll be teaching Trademark / Unfair Competition Law and International IP for the Fall semester, and Property in the Spring.

Professor Manta graduated from Yale Law School, where she was Tributes Editor of the Yale Law Journal, Articles Editor of the Yale Law and Policy Review, and an editor of the Yale Journal on Regulation. She then clerked for Judge Morris S. Arnold of the U.S.Court of Appeals for the Eighth Circuit. She has written on subjects ranging from whether trademark registration should be privatized, to the first amendment implications of school vouchers. Her most recent article (available here) tracks the reasons why violations of copyright and trademark law (“soft” IP) are often subject to criminal law, but patent (“hard” IP) violations are not.

Recently, the Advocate and Professor Manta sat down at our respective desks for an email Q&A touching on how she first became interested in the law, the unexpected joys of Federal Income Tax, and what she’s looking forward to this year at BLS.

BLSA: What first got you interested in the law, and IP specifically?

IM: I developed an initial interest in the law as early as high school, although I was equally curious about the field of psychology (which ended up being my college major and continues to be an important element of my scholarship). Questions of substantive justice and policy – but also of procedural fairness and efficiency – were on my mind during much of college, and taking an undergraduate course in constitutional law cemented my desire to go to law school. I became interested in IP during my 1L year in part because resolving questions in that area forces us to dig into matters of human cognition and other psychological processes. The litigation-related work I did as a summer associate in New York at a law firm with a large IP practice subsequently formed the basis for my first article on the subject.

BLSA: Who was a professor or teacher who really made an impact on you?

IM: Prof. Hilary Blumberg from the Yale School of Medicine, who was my mentor and senior essay adviser while I was an undergraduate student, tops that list. She exemplifies all the best qualities one could find in an academic – commitment to cutting-edge research and scholarship, willingness to guide students as they experiment with new ideas and techniques, and the ability to always maintain the highest standards of both ethics and compassion for those around her. I really cannot say enough good things about Hilary and remain in touch with her to this day.

BLSA: What law school class did you find unexpectedly helpful/interesting?

IM: Federal Income Taxation turned out to be more intriguing than I would have expected. The professor (Anne Alstott) truly brought the subject to life in surprising ways, and the lessons one learns about matters of statutory interpretation maintain great relevance as one studies other areas of the law.

BLSA: Can you talk a little bit about your experience clerking after law school? Was there a particular reason why you chose to clerk, and why in the 8th Circuit? Were there particular cases that came before Judge Arnold in your time there that you were excited to play a part in?

IM: I really enjoyed my clerkship with Judge Arnold. Being able to watch the judicial decision-making process from close up provides unique lessons that shape one’s understanding of cases for one’s entire legal career. The 8th Circuit has a diverse docket that I enjoyed, and it was a privilege to clerk for Judge Arnold. The opinions that he wrote that year and for which I provided assistance included an interstate commerce clause case involving limitations on farm ownership, and a case in which the 8th Circuit overturned the imposition of the death penalty against a defendant who had not had the opportunity to demonstrate that his mental retardation precluded his execution (the defendant ultimately won on remand and was not executed).

BLSA: What’s the difference between teaching a first year law course and teaching upper level law students? And is there a difference in teaching something like Trademark, which is constantly in the news, and Property, which has remained more or less static? If so, how do you address that?

IM: 1L students will sometimes tell me that they initially approached Property with a degree of skepticism because many of the doctrines date so far back, but by the end they felt that a significant part of this body of law remains very relevant and interesting today. One of the things I have done in a number of the courses I teach, including Property, is to take a few minutes at the beginning of each class to discuss recent news stories related to that area of the law. This allows students to connect with the materials in a different way and begin to notice how much is actually still happening today.

BLSA: Your most recent paper focuses on the rationale for why the U.S. provides criminal enforcement of copyright/trademark law, but not patent. What are some of the issues that criminalization of soft IP creates, and what factors keep gov’t from extending this enforcement to patent?

IM: To put it in a nutshell, the reasons why there are no criminal laws related to patents today is a combination of 1) the essential differences between soft IP and patents, 2) the fact that there is a greater risk of overdeterrence in the patent context due to these differences should criminal sanctions be introduced, 3) the issue that modern technologies have had a greater effect on increasing the level of soft IP infringement versus patent infringement, and 4) a state of affairs where the lobbies for soft IP tend to unite around a desire for stronger protections whereas the main patent constituents (especially big pharma and IT) are not all on the same page when it comes to that. One of the main issues I point out with criminal enforcement for soft IP is in the area of non-commercial copyright infringement, where I question some of the rationales behind criminalization and ultimately its effectiveness.

BLSA: Given a tough job market and endlessly depressing NY Times features, what do you think is the most important thing today’s law students should keep in mind?

IM: As trite as it sounds, all you can do is try your best. Work hard, get to know your professors, and keep your ears open for opportunities. I also think it’s worthwhile for students to connect with upperclassmen because those will be the people “in the trenches” one or two years before oneself and they could have valuable tips as to openings or other matters. I am happy to talk to students who would like more individual advice on their situations.

BLSA: What are you looking forward to most about spending this year in Brooklyn?

IM: BLS has a fantastic faculty, and I really look forward to spending more time with them as well as getting to know the students! I am also very happy to be in NYC, which has a lively intellectual property scholarly community and where a lot of my loved ones reside.