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Full-Text Articles in Law
The Emergence Of Classical American Patent Law, Herbert Hovenkamp
The Emergence Of Classical American Patent Law, Herbert Hovenkamp
Herbert Hovenkamp
The Emergence of Classical Patent Law
Abstract
One enduring historical debate concerns whether the American Constitution was intended to be "classical" -- referring to a theory of statecraft that maximizes the role of private markets and minimizes the role of government in economic affairs. The most central and powerful proposition of classical constitutionalism is that the government's role in economic development should be minimal. First, private rights in property and contract exist prior to any community needs for development. Second, if a particular project is worthwhile the market itself will make it occur. Third, when the government attempts to induce …
Prerogative, Nationalized: The Social Formation Of Intellectual Property, Laura R. Ford
Prerogative, Nationalized: The Social Formation Of Intellectual Property, Laura R. Ford
Laura R Ford
In this article, I offer a “social formation story” (Hirschman & Reed) of the emergence of intellectual property, as a new type of legal property in England. I treat the history of patents and copyrights together, and focus especially on the Constitutional transformations of the Sixteenth and Seventeenth Centuries that enabled this new, “intellectual” form of property to finally emerge in the Eighteenth Century. I open and conclude with the cases of Millar v. Taylor (King’s Bench 1769) and Donaldson v. Becket (House of Lords 1774), viewing these as the first cases in which the status of this new type …
The Classical Constitution, Herbert Hovenkamp
The Classical Constitution, Herbert Hovenkamp
Herbert Hovenkamp
Conservative and libertarian constitutional writers have often pined for return to a "classical" understanding of American federal and state Constitutions. "Classical" does not necessarily mean "originalist" or "interpretivist." Some classical views, such as the attempt to revitalize Lochner-style economic due process, find little support in the text of the federal Constitution or any of the contemporary state constitutions. Rather, constitutional meaning is thought to lie in a background link between constitution formation and classical statecraft. The core theory rests on the assumption of a social contract to which everyone in some initial position agreed. Like any contract, it would …