Celebrating Jerome Reichman
A highly innovative and influential scholar of intellectual property law, Reichman retires from teaching — but keeps publishing
Jerry Reichman, Duke’s Bunyan S. Womble Professor Emeritus of Law, was in his 40s when he began his academic career, a late start for a legal scholar. But he quickly made his mark in the fields of intellectual property law and innovation policy, producing, to date, 10 books, more than 85 articles, and myriad pathbreaking strategies to fairly resolve challenges arising from the grant of exclusive property rights that underpin IP law domestically and internationally.
The program for a 2019 conference at Harvard Law School illustrates his influence: Organizers chose six themes on which Reichman’s work is considered foundational, from the World Trade Organization’s multilateral Agreement on Trade Related Aspects of Intellectual Property (the TRIPS agreement) and the role of IP rights in developing countries to the challenges facing the digital commons and the question of whether antitrust and competition law trust intellectual property law too much. And the leading academics and policymakers from around the world who attended “Jerryfest” — many of them his research partners, co-authors, and former students — made it clear that his generosity, kindness, and humility as a mentor and colleague are part of his professional legacy.
Reichman, a member of the Duke Law faculty since 2000, has retired from teaching, but remains active as a scholar. He has multiple articles forthcoming on such topics as: using TRIPS agreement flexibilities and regional procurement centers to facilitate the production of medicines to combat COVID-19 and other illnesses in developing countries; addressing challenges with genetic-sequence data under the multilateral Convention on Biological Diversity that provides for the sustainable and equitable sharing of biological resources and their benefits; and setting out a novel governance regime for sub-patentable innovation that is based on liability rules, which permit access to resources protected by intellectual property rights with the payment of state-set compulsory license fees, instead of exclusive property rights.
“It’s an incredible marriage of theory and actual real-world impact that we see in Jerry Reichman,” said Elvin R. Latty Professor of Law Arti Rai at an April celebration held in his honor at Duke Law. “His wide-ranging intellect and insatiable curiosity are really unparalleled.” Rai, who has co-authored three articles with Reichman, called him “an incredibly generous and passionate collaborator” who models what it is to be a true intellectual as well as a good human being. “That, I think, shows how truly sui generis you are, Jerry,” she said.
A tale of two careers
Reichman entered Yale Law School at age 19 as a member of the Class of 1958, fresh from the Hutchins Program at the University of Chicago, where the focus on the “great books” and use of Socratic dialogue in learning “changed my thinking,” he says. Yale was then on the forefront of using the Socratic method in legal education, and it eventually became central to his own teaching.
He excelled in law school; peers and professors alike told him he should teach, but he had no interest in doing so, planning instead to write novels and establish a career in the arts. He secured a prestigious Fulbright fellowship in India to follow his law school graduation, but in his final semester contracted the endemic H2N2 influenza virus and was hospitalized. Unable to defer his fellowship to finish his law degree, he resolved to go to India without a clear plan to return but with a firm commitment from a Yale associate dean that he could do so at any time. An overnight stop on the Italian Riviera on his way to India planted the seeds for an extended break, he says. “When I saw Genoa, I fell in love with Italy and decided that on my way back I’d stay.”
A year later, Reichman landed a lucrative position as chief editor for the Turin-based Agnelli Foundation, established by the owners of Fiat as a center-left think tank. On the side, he became involved with cabaret theatre in Milan that satirized politics, something that had fairly recently been subject to strict fascist censorship. When he organized a summer production of Milanese cabaret in a seaside town near Genoa, he expected modest success at best, but instead created a cause célèbre.
“As soon as we opened, the local police chief shut us down, using the old laws against free expression from the fascist period,” he says. “But the political parties intervened on our behalf with the chief police officer for the region and he deemed it free speech under the new laws.” Extensive media coverage of the controversy ensured packed houses all summer at various stops along the Italian coast. He also produced music, another successful sideline, and was rewarded with Italian critics’ awards for best records of the year for two different albums, one a compilation of works by the noted actress and cabaret star Carla Mignone, who performed as Milly.
“It’s an incredible marriage of theory and actual real-world impact that we see in Jerry Reichman. His wide-ranging intellect and insatiable curiosity are really unparalleled.”— Professor Arti Rai
Reichman had been in Italy for more than a decade when the Agnelli Foundation drastically scaled back its staff. Unable to find a comparable job elsewhere in the country, he asked a contact at the United Nations about positions in Geneva. Despite such posts being hard to come by, he was essentially hired on the spot as an editor for the International Trade Center of the United Nations Conference on Trade and Development (UNCTAD/GATT) that was promoting exports from small developing countries to major European markets. The credential he was told that got him the job: He had been a comment editor on the Yale Law Journal.
A few years later, Reichman was a senior editor at UNCTAD/GATT when he was recruited for a high-level position in the central legal office at the U.N. in Geneva. The one condition was that he complete his JD, for which he was a few credits short. That’s when he called in the long-ago promise that he could return to Yale, this time in the Class of 1979. Reichman jokes that he was the youngest entrant and oldest graduate of Yale Law School.
The decision to let him return wasn’t without controversy, said U.S. Second Circuit Court of Appeals Judge Guido Calabresi, Reichman’s friend and 1958 classmate, who was then on the Yale law faculty. Speaking at the April retirement celebration, Calabresi recalled that the head of the admissions committee, who had given Reichman top grades in first-year Property decades before, initially declared him “too old” for law school. But once he returned, “Jerry did so well that everybody was stunned,” Calabresi said. “More importantly, he realized that he had always wanted to be a scholar.”
Despite that, Reichman declined to take part in the academic “meat market” generally seen as the only path to a faculty position. But before returning to Geneva he gave a single job talk at the College of Law at Ohio State, which had an unexpected opening and where another Yale classmate was on faculty. By the time he arrived in Geneva he had an offer of a tenure-track position, which he took in spite of the fact that it paid almost $100,000 less than his waiting U.N. post.
A visionary scholar
Reichman quickly found his stride as a teacher and scholar, gaining tenure in short order at Ohio State, where he stayed until moving to the Vanderbilt University Law faculty in 1986. He displayed the same versatility and vision in building his research agenda as he had in his earlier pursuits, with one branch using the expertise in multilateral trade agreements that he gained at the U.N. in making connections between intellectual property and international trade law.
“To a substantial degree, Jerry’s work has set the tone for the modern study and teaching of intellectual property, both in the United States and increasingly in the rest of the world,” said William W. Fisher III, the WilmerHale Professor of Intellectual Property Law and faculty director of the Berkman Center for Internet and Society at Harvard, during opening remarks at the 2019 Harvard conference. Fisher noted Reichman’s continual emphasis on distributive justice and commitment to reducing the disadvantages faced by poor people and nations, his focus on the impact of intellectual property laws on scientists’ abilities to share information and build on each other’s work as well as to incentivize innovation, and his innovative global orientation.
Fisher further highlighted Reichman’s argument, across a large body of work, that liability rules are preferential to property rules when defining the scope of rights over scientific information, data, traditional knowledge, and other elements of innovation. “Jerry has long argued that liability rules have important advantages, specifically in reducing transaction costs and reconciling the benefits of incentives for innovation with the need for sharing information and facilitating cumulative innovation,” he said.
Those values and interests are evident in Reichman’s articles and books, including International Public Goods and Transfer of Technology Under a Globalized Intellectual Property Regime (Cambridge University Press, 2005, editor with Keith Maskus), which emerged from his work addressing the problems that developing countries face in implementing TRIPS and remains frequently cited; Governing Digitally Integrated Genetic Resources, Data, and Literature: Global Intellectual Property Strategies for a Redesigned Microbial Research Commons (Cambridge University Press, 2016, with Paul F. Uhlir and Tom Dedeurwaerdere), which examines how scientists share collections of microbes and related data to advance research in such areas as medicine, agriculture, and climate change, and how current systems for facilitating that transnational exchange can be improved; and The World Blind Union Guide to the Marrakesh Treaty (Oxford University Press, 2017, with Laurence R. Helfer, Molly K. Land, and Ruth K. Okediji), which helps the 51 governments that adopted the Marrakesh Treaty to Facilitate Access to Published Works for Persons Who Are Blind, Visually Impaired or Otherwise Print Disabled understand the options available to them for implementing it in ways that enhance the availability and dissemination of copyrighted materials in accessible formats.
Reichman was also involved in negotiating TRIPS agreement amendments that permitted limitations and exceptions to exclusive property rights in pharmaceuticals to facilitate their fair distribution globally. He is particularly proud of the work he has done that maps out efficient ways developing nations can implement those “flexibilities” through mandatory patent pools, shared regional production and supply centers, and a coordinated system to maximize administrative expertise. The first of two articles co-authored with Professor Frederick Abbott of Florida State University College of Law and published in the Journal of International Economic Law appeared in 2007; in a 2020 research paper, the pair urge the implementation of their strategy to address the pandemic. Reichman has other pieces forthcoming on the topic, including an essay titled “Infrastructure, Not Waivers: Promoting Access to Medicines in Developing Countries,” in which he addresses, with evident frustration, recent requests by some of those nations that patent protections in coronavirus vaccines, treatments, and diagnostics, be waived entirely.
“The deeper problems arise from the fact that developing countries — with some notable exceptions — have often ignored the flexibilities codified in the TRIPS Agreement, with the result that they have acquired relatively little cumulative experience in how to manage these compulsory licensing provisions efficiently,” he writes. “As a result, the international community and the developing countries as a group often lack needed infrastructure to render these flexibilities operational easily and efficiently on the domestic level.”
Reichman expresses no frustration with his long-ago decision to leave his life in Europe for that of an American legal scholar and to spend more than two decades at Duke Law. “It’s a wonderful place and I’ve had wonderful colleagues,” he says. “I don’t think there are many places like Duke in the legal educational system. The most important decision of my life was to come to Duke.”