PUBLISHED:January 06, 2016

In praise of eternal youth

Prof. David Lange
David Lange, the Melvin G. Shimm Professor of Law and a renowned scholar of intellectual property law, retires from teaching at the end of the fall semester after more than 40 years on the Duke faculty. In separate essays his colleagues, Professor H. Jefferson Powell and Jennifer Jenkins ’97, director of the Center for the Study of the Public Domain, reflect on Lange’s legacy as a scholar and teacher.


For almost 25 years I have reflected on the fact that David Lange is the youngest member of the Duke Law faculty. Curiously, David has remained the youngest of us throughout that time, while, sad to say, I have gone gray, and (happily) the Law School has hired a wonderful group of other young professors. Making the puzzle even more puzzling, David’s work as a scholar, and the role he has played on the faculty, display a wisdom quite unusual in one so young. I can’t explain the apparent paradox, so I will simply lay out the evidence for my assertions. Consider the following.     

Young scholars are dynamic, innovative, radical in their thinking. Not having settled down into the comfortable competences of the middle-aged, they are intellectually restless, impatient with received wisdom, recklessly daring in the ideas they entertain. Anyone who knows David Lange’s scholarly writing knows that all this is true about his work, early and late. David entered the legal academy at a time when few people doubted the comforting notion that copyright and the First Amendment are mutually supportive. In that context, David’s justly renowned 1975 essay “Recognizing the Public Domain” committed the academic equivalent of disturbing the peace. The essay went on to play a seminal role in shaping current arguments against the endless expansion of intellectual property claims, but David wrote it two decades or more before worrying about IP’s threat to freedom of expression became fashionable. The essay, furthermore, was as imprudent — and as brilliant — in its style and presentation as in its substance: who else at the time would have quoted Groucho Marx, at length, as the capstone of a serious argument in the theory of copyright? (When David revisited the 1975 essay in his 2003 “Reimagining the Public Domain,” he must have dumbfounded readers who didn’t know him: The almost three decades of reflection that separate the two pieces had made him even more radical.)

David’s recent work on the First Amendment and IP is just as wild-eyed — after all, since Justice Black died, who has been foolhardy enough to suggest that we read “Congress shall make no law ... abridging the freedom of speech” as if it meant, well, that Congress should make no such law? The very idea is the sort of scholarly absurdity that only the very young and radical would dare to broach. David, characteristically, has co-authored a book (uncompromisingly titled No Law) and published a major article not just raising the issue but proposing a complementary and wholesale renovation of the entirety of intellectual property. Only youth can excuse this sort of temerity in print ... and only a deep and wise understanding of both law and human freedom could make possible a tour de force such as the chapter in No Law on the famous 1918 INS v. Associated Press case, which is the finest study I’ve ever read of the thought and the rhetoric of a Supreme Court decision.

Young scholars are interested in everything. They’ll tackle any subject that piques their curiosity, and they often express their views without a decent regard for academic specialization. They are tempted to spend time and intellectual energy on projects that have no cash value in CV-building or career advancement. The most memorable academic presentation I’ve ever attended was given by David Lange on the future of the book. He delivered his beautifully crafted paper to an audience of three other Duke professors over delicious bread freshly baked by our greatly missed colleague, the late Jerome Culp. For over an hour Jerome, Lawrence Baxter, and I sat spellbound as David told an elegant story about the prospects for reading that reflected a deep knowledge of, and reflection on, the cultural implications of the Internet (then in its infancy — but David was already fascinated), ongoing changes in the economics of the publishing and entertainment industries, and the valid insights hidden in talk about “postmodernism” (then at its height — David was skeptical but willing to listen). David later deployed some of the same reckless polymathy in his sparkling essay “At Play in the Fields of the Word,” in which Michel Foucault, a novel kind of synthesizer (as in the musical instrument), and the 1981 film “Diva,” gang up on the law’s traditional picture of authorship to demonstrate the necessity and perhaps the inescapability of radical change in copyright law in the “post-literate millenium.” But that original paper? Apparently David wrote it just so four friends could have something to talk about while we broke bread together. Only a neophyte would make that sort of mistake: The rest of us would have milked at least three published articles out of the work and erudition David heedlessly spent on Jerome and Lawrence and me. Which brings me to my final piece of evidence: David’s generosity.

Young scholars don’t have to spend time guarding turf or protecting their reputations. Without turf or reputation as yet, they can afford to be generous. David has plenty of both to defend at this point, but his practice toward other scholars is nicely captured by a single footnote in his “Reimagining the Public Domain” where he characterizes the work of others in terms such as “seminal,” “especially attractive,” “always read with great respect and interest,” and “truly remarkable.” But in closing, I want to note that David’s liberality of spirit as a scholar is equally reflected in his practice as a colleague. David is neither indecisive in judgment nor shy about expressing his opinion, but in the quarter century I have had the privilege of knowing his views on faculty matters, I have been continually struck by his enthusiastic interest in his colleagues’ successes and especially in the welfare of the (other) young faculty, by his kindness toward students and his intense desire to see them succeed, and by his commitment to a fundamental decency in how we conduct the work of the Law School. In these ways as well, David Lange has shown himself truly to be the youngest member of our faculty. I don’t know how we will make do without him.

by H. Jefferson Powell


In praise of 
a mentor and friend

Volumes could be written about Professor David Lange’s distinguished career. But no festschrift would be complete without a tribute from those he has influenced most — his students.

David Lange joined the Duke Law faculty in 1971. Since then — for over four decades — he has delighted, inspired, provoked, mentored, and transformed the students who took his classes. As one such student in the 1990s, I found it easy to choose my courses: I simply signed up for everything that David taught. It was an impressive roster: Intellectual Property, Entertainment Law, Trademark Law and Unfair Competition, Telecommunications, Independent Film Production, and Torts. (Then, as now, David was tireless as well as brilliant.)

Class with David Lange was a unique experience. My notes bear witness not only to his prodigious legal knowledge, but also his linguistic gifts. This is hardly surprising. In addition to being a legal scholar, he is an accomplished novelist and a poet. In class, David recites Shakespearian monologues and hip hop lyrics with equal finesse. He is a connoisseur of everything, and I mean everything. Our class heard about the nuances of intellectual property doctrine, but we also paid attention to the beauty of a well-turned phrase and were introduced to an incredible range of films — a single discussion could feature references to “The Apostle,” “Diva,” and “Shane” (a perennial favorite). And, fittingly, we would exit the classroom feeling as one does after watching a great movie. He’s that good.

Yet his teaching prowess is only part of the story. David’s efforts outside of the classroom are just as important. He has mentored countless students over the years, and launched many, many careers. David is the reason I went into the intellectual property field, and I am far from alone in that. It is daunting to think of the hours he has spent assisting, advising, and collaborating with students. I was lucky enough to collaborate with him on a short film called “Nuestra Hernandez” about culture and the legitimacy of appropriation. At the end of the film, the credits for the unlicensed snippets (reflecting the very point he was seeking to make about appropriation) ran for so many minutes the audience began laughing out loud, finally getting the joke. I can testify that he is as inspiring a collaborator as he is a teacher.

When he was honored with the Law School’s Distinguished Teaching Award in 2009, one of the student nominators described David as “Amazing. He is funny and engaging. Never shy about expressing his own opinions, but always open to other points of view. He is tough but fair, outrageously smart, and unspeakably kind.” I think his students over the years would agree.

The best way to appreciate all that David has done for students is to hear from them directly. Here is just a smattering from David’s distinguished 44-year career at Duke.

Raymond Goodmon III ’77: David is a cherished friend. He is a wonderful teacher who loves what he does. He is kind, honest, humble, and very humorous. He reminds me of the best father, brother, and friend (all in one person) that a man could have. To say I’ve benefitted from my friendship with him would be an understatement for the ages.

Kip Frey ’85: As a teacher, David was both awe-inspiring and hilarious. Those of us in his Torts small section spent many hours reliving moments from class, both because they were so entertaining and, probably more importantly, because we needed mutual reassurance in the face of realizing that none of us would ever be that good. As a mentor and friend, David played a pivotal role in my life; my debt to him is unbounded. I think the way I do because of his influence, and every step in my career bears the mark of his encouragement and counsel. And if anyone ever starts to become impressed with their writing acumen, they need only read “Recognizing the Public Domain” to be appropriately disabused of that notion.

Terri Southwick ’85: As a professor, David Lange is peerless. In class, he is both educator and performer. His extraordinary intellect and exquisite eloquence compelled me to enroll in every class he offered — and even one he didn’t. (I persuaded Professor Lange to tutor me in a 12-credit-hour independent study of fair use. My apologies to all of his students who were later denied such a privilege under the “Southwick-Lange Rule,” established to prevent such a glorious abuse of the system.) As a person, David Lange is incomparable. He speaks, as Mark Twain would say, the language the deaf can hear and the blind can see: kindness. His respect for and honesty with his students, colleagues, and friends attests to the character and integrity of the man, as well as the teacher. David Lange is my treasured mentor, who always makes me think more critically, and my cherished friend, who never fails to make me laugh. I am sorry that future Duke Law scholars will not have the privilege of being his students, but I am elated that he will have more time to write the American Western novels for which he has earned such critical acclaim and commercial success in Japan.

Risa Weaver-Enion ’10: There are many words I could use to describe David Lange: teacher, mentor, fellow whiskey drinker. But the word I like best is “friend.” We share a love of cinema, the written word, freedom of expression, and red velvet cake. I never fail to be impressed by his ability to speak in fully formed paragraphs, complete with semi-colons and parentheticals. While at Duke, I took every class David taught, and then I worked as his research assistant, asked him to be my student note and my independent study advisor, and co-authored a journal article with him. He was always generous with his time and advice. David inspires me to strive for excellence and eloquence in my writing and in life, and I am honored to call him my friend.

Shiveh (Reed) Roe ’12: Professor Lange — or “David,” as he would remind me to call him now that I have graduated — is an incredibly kind and generous mentor of Duke Law students and alumni. Despite my intimidation when I first reached out to him over email, David warmly took me under his wing, from advising my student note research to guiding me to my dream job as a trademark and copyright lawyer and collaborating with me on editing a textbook and co-publishing a law review article. His courses on IP, trademark, and entertainment law were highlights for me and so many students, and we will never forget hearing David rap OutKast lyrics when dissecting the Rosa Parks lawsuit, or sipping sherry while watching creative student videos on entertainment law.

If David’s students could give a standing ovation in a magazine article, we would do so now. But since we cannot, we will just have to appropriate all of the gifts that he has given us. To quote one of his favored muses, Jerry Garcia: “Once we’ve played it, it’s yours.” Or to paraphrase from David’s own work: His gifts as a teacher are in the public domain, and we’re all the richer for it. Bravo!

On behalf of all the students who have benefited from your teaching, your mentoring, and your friendship, thank you, David.

— by Jennifer Jenkins ’97, director of the Center for the Study of the Public Domain

Sidebar for News

Cover of Duke Law Magazine, Fall 2015 Duke Law Magazine

Fall 2015
Vol 34  Number 2

Download pdf