Why You Should Consider Teaching Advertising Law (Including Comments from Felix Wu of Cardozo)

By Eric Goldman

This semester I’m teaching Advertising & Marketing Law again. My syllabus. I’ve written before about the course and my casebook reader with Rebecca Tushnet.

In this post, I’d like to recap some remarks I made in a talk last year to Consumer Law professors about why they should consider teaching the course. I’m also including remarks from Felix Wu of Cardozo Law, who taught the course last year.

Why Teach the Advertising Law Course?

shutterstock_28891771.jpg1) Complement to the Business Law Curriculum. There are many ways to teach the Advertising Law course, but I favor teaching it as a business law course. Companies want to sell stuff, and they have to comply with a variety of rules to do so. This is similar to other business law courses, but advertising is a more accessible and familiar subject to students than some other topics (e.g., public company filings under the Securities Act of 1934?), so it’s a great entry point to learning about business law.

2) Good Platform for Skills Training. Law schools are making renewed pushes for skills training, and Advertising Law is a great platform for skills-oriented exercises. My skills objective is relatively modest: I want students to be able to review ad copy and advise clients about potential problems and solutions. We’ll practice that skill repeatedly in class:

a) During classtime, we’ll repeatedly deconstruct ads as a group (and perhaps I’ll arrange some small group deconstructions too).

b) We’ll do a midterm exercise where students deconstruct claims and think about required substantiation

c) Students will critique each others’ midterm exercise so they can see how different people approach the same problem

d) I’ll then ask students to deconstruct another ad on the final exercise.

I’m sure more can be done to add a skills component to the course. Still, adding the exercises to my course wasn’t particularly hard for me to do, and it fits organically with the doctrinal material.

3) Getting Students “Practice-Ready.” Another buzzword in legal academia is that employers want law graduates who are “practice-ready.” Advertising law questions are meat-and-potatoes questions for junior lawyers working in a business context (whether transactional or litigation). Every business client wants to advertise or thwart someone else’s advertising, and given clients’ cost-sensitivity, those questions frequently flow down to junior attorneys. Even without the skills component, after taking this course, students will be prepared for the kinds of legal questions that will actually hit their desk in their first year or two of practice.

4) High Student Demand. Students love this course. Felix’s experience below is extreme, but not unprecedented. I had over 90 students try to enroll in Spring 2011 and I had over 60 students try to enroll this year (I think the number was low due to scheduling conflicts; but it’s still quite high for a specialty boutique course).

As always, if you’re interested in teaching an Advertising Law course, contact Rebecca or me. We can provide you with an evaluation copy of our casebook and many more resources, including a nascent teaching manual, our PowerPoint slide decks and more.

Now, as promised, here’s Felix Wu’s recap of his experiences teaching the course last year:

Teaching Advertising Law at Cardozo Law School

By Felix Wu

[In Spring 2012] I taught an Advertising Law course at Cardozo Law School, as far as I know, the first time such a class has been offered here. Overall, it was an excellent experience for all involved.

Student interest in the course turned out to be quite high. When I first proposed the class, I had pictured an enrollment of around 60 students, on par with my Internet Law class, but in the end, I graded 102 final exams. The course seems to have appealed both to those particularly interested in the advertising industry, and to those primarily interested in broader issues. (One student commented, “I’ve always been interested in IP and advertising law, but Professor Wu’s class made me sure that this is a field I want to go into after graduation,” while another said, “The lessons I learned in this class were practical and touched on subjects that I believe affect me every day (privacy, the Internet, advertising).”)

From my own perspective, I’ll admit that I came to advertising law more from particular doctrinal interests than a deep background in advertising per se. None of my work in private practice was about advertising. For that matter, I barely watch any television, except on an airplane. But I am interested in commercial speech regulation, false advertising law, and publicity rights, all areas related to other courses I teach (Trademark Law, Internet Law, Privacy Law), but which I never have an opportunity to cover there.

In putting my syllabus together, while I initially thought of each of the doctrinal areas separately, some interesting threads emerged, which I tried to highlight throughout the semester. Foremost among them is the love-hate relationship that the law seems to have with advertising, and a corresponding uncertainty about how much legal leeway to give to advertisements that push various boundaries. Consider on the one hand modern commercial speech doctrine, and the increasing First Amendment value given to advertisements and marketing speech. (Sorrell v. IMS Health, particularly in dicta, is perhaps an example of this.) On the other hand, advertisements seem to get no slack whatsoever when it comes to intellectual property rights, with courts seemingly adopting the mantra, “When in doubt, leave it out.” (Consider the recent district court opinion in the Louis Vuitton v. Hyundai case.)

I used Rebecca and Eric’s then-latest draft casebook, which framed the course nicely, supplementing it with a few additional cases based on my own take on the course. In particular, I added even more materials on the line between commercial and noncommercial speech, as well as on the corresponding treatment of noncommercial speech under various doctrines, in order to further emphasize the relative place of advertising in the legal universe.

In all, I highly recommend others to consider offering an advertising law course. It is no substitute for core courses on IP or the First Amendment, but among subject-specific courses, I think it is both especially relevant and interesting to students, and doctrinally rich to teach. I certainly intend to continue teaching the course in the future.

[Photo Credit: judges gavel on a business law book // ShutterStock]

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