Law Commons^™

Patriotism For Profit And Persuasion: The Trademark, Free Speech, And Governance Problems With Protection Of Governmental Marks In The United States, Malla Pollack

Malla Pollack

“Governmental marks” are words or phrases which involve the identity of a social group that is partly defined in terms of its citizenship in a government-institution. The power to name a social group (especially one from which exit is difficult) confers enormous power over the group’s members. Legally classifying such words as trademarks commodifies them, increasing the namer’s power: both by giving the word monetary value and by providing the mark-holder with the legal right to prevent others from manipulating the word’s meaning.

Destination marketing employing governmental marks has become ubiquitous. The municipal governments of both New York City and …

The Unaffordable Cost Of Not Having Positive Rights, A United States Perspective, Malla Pollack

Malla Pollack

This is an updated version of the book chapter published in Brazil earlier in 2008. See that entry for additional information.

A Listener’S Free Speech, A Reader’S Copyright, Malla Pollack

Malla Pollack

Despite the Supreme Court’s repeated use of free speech doctrine to derail media reforms, some reform is possible. As Jerome A. Barron recognized, the Court’s central error is hypothesizing a romanticized speaker. The Court’s copyright jurisprudence is similarly marred by its congruent focus on a romanticized author. The original and continuing central purpose of both copyright and free speech is the wide distribution of material to citizens – especially when politically relevant information and opinions are involved. The Constitution’s copyright clause, Article I, section 8, clause 8, allows Congress the power to enact only such statutes as encourage the “progress” …

Dampening The Illegitimacy Of The United States' Government: Reframing The Constitution From Contract To Promise, Malla Pollack

Malla Pollack

Realistic political philosophers working in the United States face a serious problem. The public accepts as axiomatic the fundamental status of the 1789 Constitution. That Constitution, however, even as amended, is blatantly illegitimate, thus undermining any theoretical claim that citizens should respect (as opposed to obey) the existing national government. This paper tenders a method for shoring up the legitimacy of the federal government through the Constitution-as-promise. Realism is central to this project; I am discussing the words of the ratified document with its twenty-seven Article V-created amendments. I am not taking the common path of deflecting problems by building …

The Democratic Public Domain: Reconnecting The Modern First Amendment And The Original Progress Clause (A.K.A. Copyright And Patent Clause), Malla Pollack

Malla Pollack

Empirical investigation of public usage of the word "progress" in the United States of 1789 demonstrates that the word meant "dissemination." The original meaning of art. I, sec. 8, cl. 8, therefore, is that Congress has the right to grant only such temporally limited exclusive rights in writings and new technology as encourage the dissemination of knowledge and new technology to the population. This article explains the major differences between current United States positive intellectual property law and the logical dictates of this original constitutional meaning. Additionally, the article asserts that the original meaning of clause 8 supports modern calls …

Dealing With Old Father William, Or Moving From Constitutional Text To Constitutional Doctrine: Progress Clause Review Of The Copyright Term Extension Act, Malla Pollack

Malla Pollack

The author suggests a textual approach to the choice of review standards for statutes enacted purusant to the so-called Intellectual Property Clause, which is more properly named the Progress Clause. Turning to text of the Constitution s relatively unproblematic because the Progress Clause contains unusually detailed constitutional text. Furthermore, what little the Court has stated about the fundamental goals of the Clause matches the author's reading of its text. Any approach based on the drafting or ratification discussions stumbles on the thinness of the record, as well as the record's possible unreliability. The text supports a standard of review higher …

What Is Congress Supposed To Promote? Defining ‘Progress” In Article I, Section 8, Clause 8 Of The U.S. Constitution, Or Introducing The Progress Clause, Malla Pollack

Malla Pollack

Empirical reserach into ratification-era uses of the word "progress" in the United States demonstrates that this word, as used in Article One, Section Eight, Clause Eight, means "spread," i.e. diffusion, distribution. To the extent that Congress chooses not to act under this clause, the default position is that each person in the United States has a property right not to be excluded from publicly accessible knowledge and technology. Congress has only a very limited power to create private quasi-property, i.e., rights to exclude the rest of the commoners. Congress may only create temporary individual rights for "authors" or "inventors" to …

The Multiple Unconstitutionality Of Business Method Patents: Common Sense, Congressional Choice, And Constitutional History, Malla Pollack

Malla Pollack

Business method patents are of sufficiently doubtful constitutionality that the Supreme Court should either render them void or, at the least, require a clear Congressional fact finding that they are likely to promote the "Progress of . . . [the] Useful Arts." Four separate arguments support this conclusion. First, common sense shows that patents on business methods do not promote progress. Second, Congress has not considered whether business method patents are likely to promote progress. Third, "useful arts," as that phrase is used in the Constitution, does not include mere commerce. Lastly, the historical background of the Intellectual Property Clause …

Purveyance And Power Or Over-Priced Free Lunch: The Intellectual Property Clause As An Ally Of The Takings Clause In The Public’S Control Of Government, Malla Pollack

Malla Pollack

Government can bypass citizen control if it can use revenue not publicly scrutinized through the public taxing/spending system. One method of bypass is paying with non-monetary compensation such as (i) property, or (ii) the right to charge others for some necessary good or service, intangible property. The Takings/Just Compensation Clause of the Fifth Amendment is one authority controlling government's ability to bypass financial scrutiny. In this article, I argue that the Intellectual Property Clause also should be used to control some governmental bypass. I attempt to justify this suggestion both theoretically and historically. The historical material included focuses on English …

The Right To Know?: Delimiting Database Protection At The Juncture Of The Commerce Clause, The Intellectual Property Clause, And The First Amendment, Malla Pollack

Malla Pollack

The people of the United States have a constitutional right to know; the government has a duty not to block access to information. The First Amendment and the Intellectual Property Clause cabin the Commerce Clause. Congress cannot create a quasi-property right to exclude others from information without clearly demonstrating market failure. Sui generis protection of data bases does not meet this threashold requirement.

Prayer In Public Schools: Without Heat, How Can There Be Light?, Or Narrative As The Reasonable Way To Discuss The Arational. Report On The Second Annual Law Day Symposium Jointly Sponsored By The Center For First Amendment Rights And The University Of Connecticut School Of Law, Malla Pollack

Malla Pollack

Prayer in public schools cannot be discussed fully without recognizing the high emotions tied to religion -- and the danger of such emotions. Against a historical account of the adoption of the Establishment Clause, this article reports on a conference in which speakers presented disparate approachs to prayer in public schools: (i) the religious objection to allowing the state to undermine religion which is historically tied to Roger Williams; (ii) a narrow allegedly originalist argument in support of the practice; (iii) a suggestion to defuse religious-factionalism by teaching about religion as part of a multi-cultural curriculum; and (iv) a critique …

Unconstitutional Incontestability?: The Intersection Of The Intellectual Property And Commerce Clauses Of The Constitution: Beyond A Critique Of Shakespeare Co. V. Silstar Corp., Malla Pollack

Malla Pollack

This article makes several assertions: (1) The Intellectual Property Clause of the Constitution, even read with the Commerce Clause, prevents Congress from giving authors or inventors exclusive rights unbounded by premeasured time limitations; (2) Because such limits exist, even incontestable trademarks must be subject to functionality challenges in order to prevent conflict with the Patent Clause; (3) The Intellectual Property Clause requires a similar challenge to prevent conflict with the Copyright Clause; (4) The states are also limited by either direct constitutional mandate or statutory preemption. Based on the first two assertions, this article argues that the Fourth Circuit's decision …