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Patent Exhaustion And Federalism: A Historical Note, Herbert J. Hovenkamp
Patent Exhaustion And Federalism: A Historical Note, Herbert J. Hovenkamp
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This essay, written as a response to John F. Duffy and Richard Hynes, Statutory Domain and the Commercial Law of Intellectual Property, 102 VA. L. REV. 1 (2016), argues that the patent exhaustion (first sale) doctrine developed as a creature of federalism, intended to divide the line between the law of patents, which by that time had become exclusively federal, and the law of patented things, which were governed by the states. Late nineteenth and early twentieth century courts were explicit on the point, in decisions stretching from the 1850s well into the twentieth century.
By the second half of …
Legal Certainty And Legal Methods: A European Alternative To American Legal Indeterminacy?, James Maxeiner
Legal Certainty And Legal Methods: A European Alternative To American Legal Indeterminacy?, James Maxeiner
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Americans are resigned to a high level of legal indeterminacy. This Article shows that Europeans do not accept legal indeterminacy and instead have made legal certainty a general principle of their law. This Article uses the example of the German legal system to show how German legal methods strive to realize this general European principle. It suggests that these methods are opportunities for Americans to develop their own system to reduce legal indeterminacy and to increase legal certainty.
Legal Indeterminacy Made In America: American Legal Methods And The Rule Of Law, James Maxeiner
Legal Indeterminacy Made In America: American Legal Methods And The Rule Of Law, James Maxeiner
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The thesis of this Article is that the indeterminacy that plagues American law is "Made in America." It is not inherent in law. Rather, it is a product of specific choices of legal methods and of legal structures made in the American legal system.
Note, The Preemption Doctrine: Shifting Perspectives On Federalism And The Burger Court, William W. Bratton
Note, The Preemption Doctrine: Shifting Perspectives On Federalism And The Burger Court, William W. Bratton
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No abstract provided.