Ruth L. Okediji
Jeremiah Smith, Jr. Professor of Law at Harvard Law School
A TRIBUTE TO PROFESSOR WILLIAM P. ALFORD
I arrived at Harvard Law School (“HLS”) on a cloudy day in September 1991, fresh out of college and reeling from a miraculous journey that had landed me in front of the International Legal Studies (“ILS”) building. Still, I recall the keen sense of disappointment that washed over me as I looked at the industrial architecture of ‘the ILS,’ as I would eventually fondly call it. This imposing granite structure that was my portal to the campus stood cold, unwelcoming, and to my mind, impenetrable.
Within weeks, I settled into classes far removed from my intended course of study in intellectual property. Harvard had no course offerings in the subjects that commanded my most significant interests—innovation, legal regulation of technology transfer, and law and development. Limited courses aside, I had to work three jobs on campus, given the minimal funding for the Graduate Program. Between midnight shifts at Langdell, 6:00 a.m. morning shifts at the Hark Café, and babysitting stints during the weekends, I studied Corporate Law, Economic Analysis of the Law, and Constitutional Law.
Although life was unusually challenging, these subjects of which I was a reluctant student were fascinating. The menu of new ideas and perspectives to which I was exposed, and the opportunity to analyze, contest, and engage them in class was vivifying. In some ways, my irreverence for the then-dominant HLS business law curriculum freed me from constraints imposed by deference or respect; being disinterested but also eager to make good on my time at HLS allowed me to discern my own biases and to revisit my scorn of approaches to law that appeared, on the surface, to avoid tackling troubling issues of global justice. In the end, it was these courses that prepared me far more than I could have foreseen for my encounter with the man whose impact on my education at HLS and on my academic career has been immeasurably significant.
In the spring semester, I enrolled in a course titled “International Law: Legal Aspects of Transnational Economic Activity” taught by “William P. Alford.” It was a new course by a new professor about whom students lacked information. The course “endeavor[ed] to provide students with an understanding of the fundamental legal questions that arise in transnational economic activity and of the manner in which the different cultural, economic, and political orientations of those involved therein shape the formulation and resolution of such legal questions.”[1] Like most course descriptions at the time, this one had the rhetorical draw of an architectural plan. Nonetheless, its allusions to the role of culture, pluralism, and the dynamics of power in shaping law made for a quiet revolution in my time at HLS.
In the classroom, Professor Alford was brilliant, funny, and compelling, true. Nevertheless, these were not what compelled my attention. It was that he saw and heard me. At times, it appeared the entire class would fade away as he and I engaged in extended conversations about the exercise of sovereignty in global markets, the merit and methods of legal transplantation, and the complexity of reforming international organizations to better address challenges in developing countries. Professor Alford had a prescient sense that American assumptions about law did not reflect the international economic system’s future. In urging students to examine American hegemony’s unstable underpinnings, he taught us the importance of intellectual humility. He deftly drew students of different backgrounds and views into a vibrant debate, cultivating a kind of multicultural dialogue that was too rare in the HLS of those days. I sat riveted in his class, my hand rarely down, taking in as much as I could and as much as he was willing to give, which was a lot.
In addition to the challenging coursework, such as concerning the complexities of political power as expressed in the design of tariffs or rules governing custom unions, Professor Alford’s classroom was a laboratory for cultivating new ideas that I could safely test only in the distinctive global space he created during his lectures. My final paper in the course laid the intellectual foundations of my doctoral work on the U.S. copyright system and the unfolding negotiations over trade-related aspects of intellectual property rights,[2] which he supervised.[3] Professor Alford was an outstanding supervisor; his criticism of my work was piercing and always delivered in a way that pushed my thinking and strengthened my voice as a scholar. His nurture of, and trust in, my intellectual instincts fueled my exploration and study of interdisciplinary critiques of colonialism, law, and cultural institutions, the fruits of which continue to inform my scholarship till this day.
One anecdote about Professor Alford’s pedagogical style will have to do. He often came to class with props, of which my favorite was a set of Mickey Mouse ties that he would cycle through wearing, and which he had bought while in China. One reason he wore them was to help students visualize that all-too-abstract force we call “globalization.” He sought to illustrate the permeability of culture, and the overt and less overt ways in which culture manifests itself, is accessed, and is transformed through transnational economic activity. The existence of Mickey Mouse ties made in China put into question the assumption that cultural artifacts could be “just” American, or “just” Chinese, instead of things that are reinterpreted continuously, reframed, and recast to meet the exigencies of different cultural locations. This remains a profound point and represents a subtlety still too often left behind in more recent and polarizing debates about such matters as cultural appropriation or the efficacy of legal transplantation.[4]
I must mention Professor Alford’s research briefly because it so indelibly set the stage for my scholarship. In his first and still best-known book, To Steal a Book Is an Elegant Offense,[5] readers confront a wedding between an argument for more cultural empathy and Alford’s generous spirit. In that work, he argued that Western attempts to impose copyright and patent regimes on China floundered because of a scant understanding of Chinese “political culture,” according to which strict state control over the dissemination of ideas is necessary to protect citizens’ ability to maintain their Confucian heritage.[6] Such a culture, the development of which Professor Alford traces from the Qing dynasty to the People’s Republic of China and past the Cultural Revolution, leaves little room for promoting private property interests in idea or expression. Accordingly, he concluded that the Western endeavor to alter Chinese attitudes toward intellectual property is “incapable of generating the type of domestic rationale and conditions needed to produce enduring change and, moreover, runs a serious risk of discrediting [its] very message.”[7]
Whether this account of Chinese history is too driven by elites operating from the top down, or if it uses terms like “culture,” “society,” and “politics” in a manner looser than what contemporary social scientists would prefer is still open to debate. I would argue that it is rare for works that ask defining questions of a field to be as nuanced in how they address those questions. Professor Alford himself anticipates—and, to his credit, accepts—the criticism that he has interpreted his subject matter according to his own socio-cultural location. He acknowledges that he relies “on definitions of intellectual property derived from Western settings,”[8] even as he warns “against extrapolating normality from the West,”[9] and recognizes that “at no time is any society’s culture monolithic, given class, gender, ethnic, regional, and other differences.”[10]
I want to highlight three ways in which Professor Alford has influenced my work, as an illustration of the remarkable manner in which he has shaped an entire generation of scholars now tasked with building on his foundational insights.
First, and most simply, there has been the pivot to Asia, the sense in which a consideration of the global intellectual property system will necessarily be incomplete without a deep understanding of the workings of China’s contributions to and goals for the system. There is now an elaborate set of specialized intellectual property law tribunals, with their appellate court, namely the Intellectual Property Court of the Supreme Court, and with more than 200,000 cases heard per year.[11] American law firms have found it increasingly necessary to litigate within this system, and, indeed, foreign patent holders are more likely to win infringement cases and receive larger damage awards than Chinese patent holders.[12] China is firmly established as one of the top five patent offices in the world, and with 58,990 Patent Cooperation Treaty (“PCT”) applications, applicants residing in China filed the most applications in 2019. The World Intellectual Property Organization (“WIPO”) reports that “[t]his was the first year since the PCT System began operating in 1978 that applicants from the U.S moved down to second place.”[13] Professor Alford’s observation that “conditions that breed protection for intellectual property rights are also those that breed competition with regard to [the design of] intellectual property”[14] law is now the central consideration in discussions about the intellectual property system’s future.
Second, Professor Alford articulated the fundamentally value-driven and constructed nature of intellectual property law. Every nation, Professor Alford reminds us, has “enduring values and practices” that are central to its identity, and which “foreigners . . . should not too readily assume they have either the moral authority or capacity meaningfully to influence.”[15]
In the research trajectory that followed my graduate work, I tried to historicize the idea of “innovation” that Anglo-American intellectual property law has traditionally protected.[16] The field had long treated that term interchangeably with “creativity,” even though organizational psychologists distinguish between the two. Building on many conversations with Professor Alford, my early work sought to establish that “innovation” is just one way of thinking about creativity and, indeed, a deeply culturally inflected one. I argued that varieties of creativity exist, each closely linked with the social structures, institutions, and cultural practices that make up a particular form of the good life.[17]
Moreover, the insistence on the inevitability of values foregrounds the question of justice in intellectual property law. Professor Alford is not a theoretician concerned with defining the nature of law or justice per se, and he has expressed doubts about the feasibility of any “grand theory” in comparative legal work.[18] However, he does ask us to consider the real effect that intellectual property rules have on people, not least those living outside of a narrow set of privileged economies. Such intellectual property rules are useful when they prevent “lives lost, gruesome injuries sustained, and medical procedures altered due to adulterated pharmaceuticals and other counterfeited products,”[19] but oppressive when they legitimate state crackdowns of human rights.[20] And the latter phenomenon is not peripheral to the field of intellectual property but, instead, something that lies at its center.
In my work, I have tried to show how intellectual property rules can generate new forms of marginalization in the Global South even as they encourage innovation there. Thus, the story of intellectual property law is incomplete without considering how it has been used to, say, privatize tools essential for addressing pollution and climate change, limit access to antiretroviral medications for HIV/AIDS, and restrict access to educational materials.[21] In this way, far from a technocratic discipline, intellectual property is central to some of the most pressing issues of justice facing a globalized world today.
A third lesson I have taken from Professor Alford is deeply personal, but perhaps the most important one of all. It is that empathy in scholarly work is legitimate, and it multiplies. If I come to empathize with someone very different from myself, that may well enable me to engage with a much greater universe of people, who may be affected in very different ways by a variety of structural forces. Conversely, those who start down some path of prejudice too often end up alienating themselves from the very people who might have helped them to turn back. Both empathy and bias end up being force multipliers.
Not too long ago, Professor Alford began co-editing a multi-volume collection of oral histories of individuals with intellectual disabilities in China.[22] This perhaps surprising development in his scholarly trajectory clicks perfectly into place when one reads the observation of a co-editor, Mei Liao, that oral history has mostly remained an American and British affair, despite its potency in letting disadvantaged groups speak to the world in their own voices.[23] Therefore, the project represents processes of cultural transformations at their best and is an extension of Professor Alford’s longstanding empathy for developing countries to a specific community of disadvantaged inhabitants in those countries. That empathy is something I have woven more boldly into my work, such as on how persons with print disabilities encounter the copyright system.[24]
If shifts in the global economy have forced us to rethink our most foundational assumptions about the nature and role of law in society, then intellectual humility is sorely needed: we must attend to the possible narrowness of our views and be empathetic to those offering alternate perspectives. Throughout his career, Professor Alford has embodied this ethos, and his consideration of culture as integral to the academic enterprise has had indisputable consequences for Harvard Law School. As head of the Graduate Program for eighteen years, he has shaped an unparalleled program attracting diverse minds from every region worldwide. Significantly, he extended dignity and hospitality to those minds. Under his leadership, LLM students would no longer arrive already informally ranked according to their country of origin’s global prestige. The Program became more egalitarian, more humane, and more intentional in guiding students’ intellectual growth, especially those from less well-resourced legal systems, particularly in sub-Saharan Africa. Those students can access the breadth of the theoretical and doctrinal cutting-edge curriculum that Harvard offers. Significantly, today, they can do so without the crushing weight of financial burdens. No one in today’s Graduate Program has to juggle three jobs alongside a rigorous academic schedule.
A final word: If to steal a book is an elegant offense, we should also remember another Chinese proverb, often translated as “what you cannot avoid, welcome.” The world we live in is full of turbulence and promise, but there are opportunities to steer it toward the good for others at every step. After defending my doctoral dissertation, Professor Alford took me to lunch at Changsho, a veritable institution among Harvard Law students. When the conversation turned to my future plans, he said, “Who knows? You might be back here as a faculty member one day.” I remember reacting in the same way I had done earlier to the business law curriculum—with dismissive skepticism. Professor Alford proved me wrong again. I will be forever grateful that he welcomed all of me not only those many years ago in his class, but always since then.
[1] International Law: Legal Aspects of Transnational Economic Activity, Harv. L. Sch. Catalog 128 (1992), https://iiif.lib.harvard.edu/manifests/view/drs:427005630.
[2] See Agreement on Trade-Related Aspects of Intellectual Property Rights, Apr. 15, 1994, 1869 UNTS 299, 33 ILM 1197.
[3] Along with Professor Arthur Miller and Professor Leroy Vail of the History Department.
[4] See Toby S. Goldbach, Why Legal Transplants?, 15 Ann. Rev. L. Soc. Sci. 583, 597 (2019) (lamenting the lack of use of social science methods, or consideration of “power dynamics, competition, and contingency,” in the transplants literature).
[5] William P. Alford, To Steal a Book Is an Elegant Offense: Intellectual Property Law in Chinese Civilization (1995).
[6] See id. at 28.
[7] Id. at 118.
[8] Alford, supra note 6 at 4.
[9] Id. at 5.
[10] Id. at 6.
[11] See generally William Weightman, Is the Emperor Still Far Away? Centralization, Professionalization, and Uniformity in China’s Intellectual Property Reforms, 19 UIC Rev. Intell. Prop. L. 145 (2020).
[12] See Renjun Bian, Patent Litigation in China: Challenging Convention Wisdom, 33 Berkeley Tech. L.J. 413, 460.
[13] WIPO, Patent Cooperation Treaty Yearly Review 19–20 (2020).
[14] Alford, supra note 6 at 123.
[15] Id. at 120.
[16] See Ruth L. Gana, Has Creativity Died in the Third World? Some Implications of the Internationalization of Intellectual Property, 24 Denv. J. Int’l L. & Pol’y 109, 116–17 n.25 (1995).
[17] See id. at 133 (“Whereas the stated underlying purpose of Anglo-American intellectual property law is to encourage creative endeavor, protection of creative endeavor in Third World societies is purposely used to achieve a myriad of social, political, and economic goals.”).
[18] See William P. Alford, On the Limits of “Grand Theory” in Comparative Law, 61 Wash. L. Rev. 945 (1986).
[19] William P. Alford, Making the World Safe for What? Intellectual Property Rights, Human Rights and Foreign Economic Policy in the Post-European Cold War World, 29 N.Y.U. J. Int’l L. & Pol. 135, 136 (1996).
[20] Id. at 144–45.
[21] See Ruth L. Okediji, Does Intellectual Property Need Human Rights?, 51 N.Y.U. J. Int’l L. & Pol. 1, 32–54 (2018).
[22] See 1–3 An Oral History of the Special Olympics in China (William P. Alford, Mei Liao & Fengming Cui eds., 2020).
[23] See 1 An Oral History of the Special Olympics in China, supra note 22, at xviii.
[24] See, e.g., Laurence R. Helfer, Molly K. Land, Ruth L. Okediji & Jerome H. Reichman, The World Blind Union Guide to the Marrakesh Treaty: Facilitating Access to Books for Print-Disabled Individuals (2017); Laurence R. Helfer, Molly K. Land & Ruth Okediji, Copyright Exceptions Across Borders: Implementing the Marrakesh Treaty, 42 Eur. Intell. Prop. Rev. 332 (2020).
