Law Commons^™

Lochner In Cyberspace: The New Economic Orthodoxy Of "Rights Management", Julie E. Cohen

Georgetown Law Faculty Publications and Other Works

Part I of this Article describes the economic models now proffered as the basis for defining rights in digital works, and explores their striking resemblance to the system of social ordering described and advanced in the Supreme Court's Lochner-era decisions. The ghost of Lochner is not invoked lightly, nor with intent to belittle. Lochner represented a particular ideal of social ordering, premised on a seamless convergence of the private-law institutions of property and contract to provide a zone of legal insulation for market outcomes. In the physical world, that vision has long been compromised by evidence of market failures …