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“One For All: The Problem Of Uniformity Cost In Intellectual Property Law.” American University Law Review 55, No.4 (May 2006): 845-900., Michael W. Carroll
“One For All: The Problem Of Uniformity Cost In Intellectual Property Law.” American University Law Review 55, No.4 (May 2006): 845-900., Michael W. Carroll
Michael W. Carroll
Intellectual property law protects the owner of each patented invention or copyrighted work of authorship with a largely uniform set of exclusive rights. In the modern context, it is clear that innovators' needs for intellectual property protection vary substantially across industries and among types of innovation. Applying a socially costly, uniform solution to problems of differing magnitudes means that the law necessarily imposes uniformity cost by underprotecting those who invest in certain costly innovations and overprotecting those with low innovation costs or access to alternative appropriability mechanisms. This Article argues that reducing uniformity cost is the central problem for intellectual …
Substantive Rights In A Constitutional Technocracy, Abigail Moncrieff
Substantive Rights In A Constitutional Technocracy, Abigail Moncrieff
Abigail R. Moncrieff
There are two deep puzzles in American constitutional law, particularly related to individual substantive rights, that have persisted across generations: First, why do courts apply a double standard of judicial review, giving strict scrutiny to noneconomic liberties but mere rational basis review to economic ones? Second, why does American constitutional law take the common law baseline as the free and natural state that needs to be protected? This Article proposes a technocratic vision of substantive rights to explain and justify both of these puzzles. The central idea is that modern substantive rights—the rights to speech, religion, association, reproduction, and parenting—protect …
The “Ensuing Loss” Clause In Insurance Policies: The Forgotten And Misunderstood Antidote To Anti-Concurrent Causation Exclusions, Chris French
Christopher C. French
As a result of the 1906 earthquake and fire in San Francisco which destroyed the city, a clause known as the “ensuing loss” clause was created to address concurrent causation situations in which a loss follows both a covered peril and an excluded peril. Ensuing loss clauses appear in the exclusions section of such policies and in essence they provide that coverage for a loss caused by an excluded peril is nonetheless covered if the loss “ensues” from a covered peril. Today, ensuing loss clauses are found in “all risk” property and homeowners policies, which cover all losses except for …