Law Commons^™

Note On The Four Faces Of The "Sharing Benefits" Issue - 1985, Wendy J. Gordon

Scholarship Chronologically

Any overall theory must first be capable of describing what it seeks to theorize about. This article will now do that. In giving a taxonomy, the article may be making its greatest contribution. Lockean theory will hardly be the last word in i/p unification theory. But I will have at least set the terms for debate so we can finally speak clearly to each other, articulate the issues, see their implications.

Note On The Four Faces Of The "Sharing Benefits" Issue With Handwritten - 1985, Wendy J. Gordon

Scholarship Chronologically

Any overall theory must first be capable of describing what it seeks to theorize about. This article will now do that. In giving a taxonomy, the article may be making its greatest contribution, Lockean theory will hardly be the last world in intellectual property unification theory. But I will have at lest set the terms for debate so we can finally speak clearly to each other, articulate the issues, see their implications.

Negligence, Causation And Information, Stephen G. Marks

Faculty Scholarship

This note suggests a model to unify, in a simple information-based framework, the notion of negligence and the various notions of causation. In effect, the model demonstrates that negligence, probabilistic cause and cause-in-fact represent an identical concept applied to different information sets. This note uses the unified framework to develop a simple algorithm for the practical application of the principles of causation in the law of negligence.

Into The Hands Of Strangers, George J. Annas

Faculty Scholarship

Movie critic David Denby has asserted that American theatergoers are a "professional avant-garde audience" who "cannot be shocked by what others would find unintelligible... [and] have lost the capacity for outrage."' This analysis of American theater can be aptly applied to clinical medical education.

I assume almost every nonmedical professional reading "Death at a New York Hospital" will be horrified and outraged at the "treatment" Ms. Hewitt was subjected to in the hospital. Many physicians will too; but it is likely that more will be as understanding of the actions of the intern and residents as was Dr. A, the …

Outline Of Green Bound - 1985, Wendy J. Gordon

Scholarship Chronologically

No abstract provided.

Draft Of Desert Theory - 1985, Wendy J. Gordon

Scholarship Chronologically

The first condition of Lockean theory is that property applies only to labor which appropriates something out of the common. Similarly, possession theory in American law applies only to appropriations of things which are unclaimed. While an intellectual product might seem to be drawn out of the ether, it can in fact be a difficult question whether its producers have drawn on more than commonly-owned resources.

Notes On "Natural Property Rights" In Products Of The Mind: Lock And Contemporary Controversies In Intellectual Property - 1985, Wendy J. Gordon

Scholarship Chronologically

No abstract provided.

Notes On Natural Rights Of Intellectual Property - 1985, Wendy J. Gordon

Scholarship Chronologically

In many areas courts are giving new intellectual property rights for reasons they largely leave unarticulated. Noncopyrightable stock averages are being protected by state law. Merchandising emblems and symbols are being protected in non-trademark contexts by trademark law. The right of publicity has expanded to such an extent that judges and commentators al iKe bewail the imminent dangers to the First Amendment caused by the imprecision of the new right’s boundaries. Even in federal copyright law, which explicitly says that facts and ideas should be free of protection, and where inadvertent copying is supposed to be as actionable as intentional …

Notes On Entitlement Systems - 1985, Wendy J. Gordon

Scholarship Chronologically

If one does harm without a privilege in our system, one pays. Our tort system suggests there is a general entitlement to the status quo, enforceable only against certain actors.

The Dog And His Shadow: A Response To Overcast And Evans, George J. Annas

Faculty Scholarship

Aesop's Fable, "The Dog and the Shadow," begins with a dog walking over a bridge with a piece of meat in his mouth. Looking down into the stream, he sees his shadow. Thinking it is a bigger dog, with a piece of meat twice the size of his own, the greedy dog decides to get it. Snarling, he opens his mouth to attack. At that moment the meat falls from his mouth, into the stream. The dog realizes his mistake, and sadly says to himself, "Grasp at the shadow and lose the substance."

Drs. Overcast and Evans have not yet …

Conversation With Lee Bollinger - 1985, Wendy J. Gordon

Scholarship Chronologically

First, Lee Bollinger (and others) seem to feel that the misappropriation "urge" makes sense when seen against a background where most things one creates DO get property treatment. Lee therefore says it's my burden as a writer to explain why this area is different--both to succeed in making a case clear, AND to create barriers between this area and others. Essentially, he argues, people will be afraid that less-than-complete property here will erode property elsewhere.

Formal Justice And Judicial Precedent, David B. Lyons

Faculty Scholarship

Despite the encroachment of legislation on matters that used to lie within the province of the common law, considerable scope remains for the judicial practice of following precedent, without challenging the authority of written law. For decisions must still be rendered where legislation has not yet intervened, and interpretations of written law can be accorded precedential force.

Why should courts follow precedents? When past decisions are unobjectionable on their merits, the practice is relatively unproblematic. It might, perhaps, be justified by the usual argument that it makes judicial decisions more predictable. That justification hardly seems, however, to confront the fact …

Fair Representation As Equal Protection, Michael C. Harper, Ira C. Lupu

Faculty Scholarship

In this Article, Professors Harper and Lupu argue that a model of "principled democracy" can systematize the now-disjointed body of labor law that imposes upon labor unions a duty of fair representation (DFR). The authors derive the framework for this model from the normative principle at the core of equal protection theory - that decisionmakers must accord "equal respect" to all within their jurisdiction. To transform equal protection doctrine into standards for the DFR, the authors strip away the institutional components of equal protection doctrine that are appropriate for judicial review of decisions made by public officials but inapplicable to …

Regulating Heart And Liver Transplantation, George J. Annas

Faculty Scholarship

Organ transplantation has been a favorite topic of health lawyers since its inception. Organ procurement was addressed with the adoption of the Uniform Anatomical Gift Act in all fifty states, and "brain death" has been recognized both judicially and legislatively across the United States. Nonetheless, it is now apparent that the major problems in organ transplantation are not legal in nature, and thus neither are the solutions. Heart and liver transplants are extreme and expensive medical interventions that few individuals can afford and few hospitals can offer. In an era of economic scarcity, how (if at all) should organ transplant …

A Truce In The Takeover Wars?, Gary S. Lawson

Faculty Scholarship

To a casual observer, hostile corporate takeovers may seem as pointless and destructive a form of modern warfare as the Iran/Iraq conflict. "Raiders" strike with bear hugs, junk bonds, and two-tier tender offers. Incumbent managers respond with poison pills, greenmail payments, shark repellents, and golden parachutes. Congress is wearying of the strife, and may soon impose a cease-fire on the combatants -but to whose benefit?

An Inquiry Into The Merits Of Copyright - Notes On Property Parallels, Dukeminier/Krier Book, Among Other Things - 1985, Wendy J. Gordon

Scholarship Chronologically

These are notes re thoughts sparked by reading Dukeminier & Krier, PROPERTY (little Brown 1981) and their TEACHERS MANUAL FOR PROPERTY (Little Brown 1981). What I may be doing is beginning a unified i/p. One part of that doctrine may be parallel ordinary Property, like so: HYPOTHESIS - The role played in ordinary property law by "possession" [,1] may be played in i/p law by "use. This can be very important.

Notes On Desert Theory: The No-Harm Notion - 1985, Wendy J. Gordon

Scholarship Chronologically

At first blush, the creation of i/p seems to meet this test of Locke’s proviso, namely, that strangers cannot complain of the ownership if after the appropriation, “there was as good left, as that already possessed, and more than he knew what to do with, or his industry could reach to.” There would seem to be a nearly infinite store of possible melodies, poems, novels, ideas; granting ownership over one variant which has been reduced to expression by a creator wouldn’t seem to interfere with the stranger’s ability to create his own.

Note On Trademarks - 1985, Wendy J. Gordon

Scholarship Chronologically

There's currently a debate about whether tmks owners shd be entitled to control strangers' usage of their tmks where the offending usage causes no confusion as to source. Usually the debate is conducted on usual lines on the eco side, whether the increase in incentives (for both production and devt) justifies the decrease in quantity & competitive sources. On the authors' rights side, whether the originators shd have any particular rights in tmks cuz of origination.

Notes On Conversations With Jim White - 1985, Wendy J. Gordon

Scholarship Chronologically

Jim White suggested looking at the institutional issues separately from the issue of ideal outcomes.

Becker And The Exploitation/Competition Requirement - 1985, Wendy J. Gordon

Scholarship Chronologically

One common justification of intellectual property rights seems to rest with an appreciation of the creator's labors. Since he has exerted effort, and created something of value, he seems to deserve something for his pains. A claim of ownership over the thing created is sometimes considered a fitting reward.

Conversation With Whit Gray - 1985, Wendy J. Gordon

Scholarship Chronologically

Whit Gray argued that even for things most of us would feel comfy saying AREN'T property, like the "idea" of shopping malls, we wouldn't feel so comfy with copying if the blueprints for the idea were copied prior to the time they became public. He argues also, that something more than "privacy" is at issue in our anger at visualizing such an intrusive prepublication copying.

Notes On Property Themes/Scholarly Methodology - 1985, Wendy J. Gordon

Scholarship Chronologically

When a legal rule is set forth, it usually describes real-world events and says, there’s a consequence, such as a right of action (or a criminal act, or a right to compensation) which follows if these real-world events are present. As all lawyers know, of course, such statements of rules don’t mean exactly what they say. Real-world events that aren’t described in the rule may come to be treated as if they are within the rule, because the courts feel that the not-mentioned items satisfy all the same purposes as the listed items do, when the overall purposes of the …

Notes On Nomenclature - 1985, Wendy J. Gordon

Scholarship Chronologically

The ordinary linkage between "property" and "thing" can be seen in the most common name given to the set of intellectual products. They are called "intellectual property."

Outline Of Desert Theory: The No-Harm Notion - 1985, Wendy J. Gordon

Scholarship Chronologically

In seeking to understand what lies behind the court's apparent eagerness to grant property in intellectual products, a helpful starting place would seem to be the labour theory of property found in Locke's SECOND TREATIES OF GOVERNMENT. Speaking most generally, the theory suggests that a person who successfully uses his to her efforts to make useful those things which no one else has used or claimed may be rewarded with ownership of the things. The common law has long used a simpler variant of such a principle, awarding ownership to those who take possession of unclaimed physical resources. Creators of …

Regulating Heart And Liver Transplants In Massachusetts: An Overview Of The Report Of The Task Force On Organ Transplantation, George J. Annas

Faculty Scholarship

Organ transplantation has been a favorite topic of health lawyers since its inception. Organ procurement was addressed with the adoption of the Uniform Anatomical Gift Act in all fifty states, and "brain death" has been recognized both judicially and legislatively across the country. Nonetheless, it is now apparent that the major problems in organ transplantation are not legal and thus neither are their solutions. Heart and liver transplants are extreme and expensive interventions that few individuals can afford and few hospitals can offer. In an era of economic scarcity, how (if at all) should organ transplant procedures and other extreme …

Antitrust: Fear Of Fairness, Gary S. Lawson

Faculty Scholarship

In December 1985, a comprehensive Reagan administration plan for both substantive and procedural reform of the antitrust laws was made public. Under the plan, the Justice Department's 1984 merger guidelines would be codified in the Clayton Act; restrictions on interlocking directorates would be relaxed; industries affected by imports could seek antitrust waivers as an alternative to tariffs or quotas; plaintiffs could be assessed attorneys' fees for filing frivolous antitrust suits; treble damages would be eliminated in many cases; and the full share of damages of settling defendants (instead of just the settlement amount) would be deducted from the damages available …

Desert Theory: The No-Harm Notion - 1985, Wendy J. Gordon

Scholarship Chronologically

One has no right to complain about another’s appropriation of a plot of land. But we live interdependent lives today. If X were given a property right to pollute, Y might have quite a lot to complain about. If what we are looking for is conditions under which strangers have no right to complain about property being granted, then it would seem appropriate to broaden the proviso a bit and say, the stranger has no right to complain so long as he’s not harmed by the grant of property.

Common Law Analogies - 1985, Wendy J. Gordon

Scholarship Chronologically

By the usual principles of claim-staking, casually viewed, the person who describes a new form of i/p seems to possess it. This may be one explanation for the property lure.

Notes On Restitution - 1985, Wendy J. Gordon

Scholarship Chronologically

The principle which allows payment for nondamaging uses of property is, I submit, this one: protecting the system of property from eroding. Looking at the leading case in the area, we see precisely that: the user of the property is required to pay for his use, lest he be placed in a better position than a non-trespasser. Any other rule might encourage erosion of property systems.

Notes On New Organization - 1985, Wendy J. Gordon

Scholarship Chronologically

No abstract provided.