Intellectual Property Law Commons^™

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 …

Incentives To Create Under A "Lifetime-Plus-Years" Copyright Duration: Lessons From A Behavioral Economic Analysis For Eldred V. Ashcroft, Avishalom Tor, Dotan Oliar

Avishalom Tor

In this Article, we highlight for the first time some of the significant but hitherto unrecognized behavioral effects of copyright law on individuals' incentives to create and then examine the implications of our findings for the constitutional analysis of Eldred v. Ashcroft. We show that behavioral biases - namely, individuals' optimistic bias regarding their future longevity and their subadditive judgments in circumstances resembling the extant rule of copyright duration - explain the otherwise puzzling lifetime-plus-years basis for copyright protection given to individual authors, and reveal how this regime provides superior incentives to create. Thus, insofar as the provision of increased …

Images In/Of Law, Jessica M. Silbey

Jessica Silbey

The proliferation of images in and of law lends itself to surprisingly complex problems of epistemology and power. Understanding through images is innate; most of us easily understand images without thinking. But arriving at mutually agreeable understandings of images is also difficult. Translating images into shared words leads to multiple problems inherent in translation and that pose problems for justice. Despite our saturated imagistic culture, we have not established methods to pursue that translation process with confidence. This article explains how images are intuitively understood and yet collectively inscrutable, posing unique problems for resolving legal conflicts that demand common and …

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 …