DOCSLIB.ORG

The Intellectual Property Clause's External Limitations

Total Page：16

File Type：pdf, Size：1020Kb

Download full-text PDF Read full-text
The Intellectual Property Clause's External Limitations FROMER IN PRINTER PROOF (DO NOT DELETE) 3/19/2012 8:25 PM Duke Law Journal VOLUME 61 APRIL 2012 NUMBER 7 THE INTELLECTUAL PROPERTY CLAUSE’S EXTERNAL LIMITATIONS JEANNE C. FROMER† ABSTRACT The text, structure, and history of the Intellectual Property Clause (IP Clause), as well as subsequent governmental activity, Supreme Court doctrine, and policy, show that the IP Clause limits Congress from using any of its other powers “To promote the Progress of Science and useful Arts” through laws that reach beyond the power conferred by the IP Clause to “secur[e] for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.” That is, the evidence marshaled by this Article shows that the IP Clause externally limits Congress from seeking, via legislation, to promote the progress of science and useful arts, in any way other than by enacting laws that secure to authors and inventors exclusive rights in their writings and discoveries for limited times. Yet the story of Congress’s power in this area has another side: Since the late twentieth century, Congress has increasingly reached beyond the IP Clause’s means to promote the Clause’s ends, often asserting its expansive—and less limited—commerce and treaty powers. To some degree, this shift reflects the fact that laws regulating intellectual Copyright © 2012 by Jeanne C. Fromer. † Associate Professor, Fordham Law School. I thank Martin Adelman; Arnaud Ajdler; Jack Balkin; Barton Beebe; Sujit Choudhry; Harlan Cohen; Nestor Davidson; Erin Delaney; Michael Dorff; Rochelle Dreyfuss; David Fagundes; Tali Farhadian; Brett Frischmann; Jane Ginsburg; Yaron Glazer; Steven Horowitz; Bert Huang; Justin Hughes; Samuel Issacharoff; Amy Kapcsyznksi; Sonia Katyal; Ariel Katz; Edward Lee; Thomas Lee; Mark Lemley; Mark McKenna; Mark Patterson; Aaron Perzanowski; Alice Ristroph; Pamela Samuelson; Susan Scafidi; Katherine Strandburg; William Treanor; Rebecca Tushnet; Benjamin Zipursky; and audiences at Fordham, Southwestern, and Yale law schools and the 11th Intellectual Property Scholars Conference for powerful comments and suggestions. Thanks also to Emily Feuerman for excellent research assistance. FROMER IN PRINTER PROOF (DO NOT DELETE) 3/19/2012 8:25 PM 1330 DUKE LAW JOURNAL [Vol. 61:1329 property often have multiple purposes, including trade and foreign- relations interests, which sometimes point in more expansive directions than do those of the more limited IP Clause. This Article synthesizes these competing purposes and provides an analytical framework under which courts, legislators, and others can assess the constitutionality of federal legislation. This framework affords a presumption against the constitutionality of laws that promote the IP Clause’s ends but subvert its means, a presumption that may be overcome only by clear and convincing evidence that Congress, pursuant to its other more permissive powers, intentionally chose to supersede the IP Clause’s means because of paramount, legitimate interests. This framework suggests that a number of existing federal laws, such as federal trade-secrecy provisions and antibootlegging laws, might be unconstitutional. The framework also suggests how to assess the constitutionality of laws that would protect databases, laws passed pursuant to international agreements with other countries, and laws that establish federal funding for scientific and artistic works. TABLE OF CONTENTS Introduction ........................................................................................... 1331 I. Understanding the IP Clause .......................................................... 1336 A. Text and Structure .............................................................. 1338 B. History .................................................................................. 1345 1. Constitutional Convention ............................................. 1345 2. Early Congressional Activity ......................................... 1352 C. Judicial Doctrine ................................................................. 1359 D. Policy .................................................................................... 1366 II. Framework for Evaluating Constitutionality ............................... 1372 A. Is the Law’s Function To Promote Progress? .................. 1373 B. Potential Conflicts ............................................................... 1379 1. Commerce Clause ........................................................... 1379 2. Spending Clause .............................................................. 1380 3. Necessary and Proper Clause ........................................ 1383 4. Treaty Powers .................................................................. 1385 III. Unconstitutional Federal Laws? .................................................. 1391 A. Trade Secrecy ...................................................................... 1391 B. Antibootlegging ................................................................... 1396 C. Copyright Restoration ........................................................ 1402 D. Database Protection ........................................................... 1405 E. Federal Funding of Artistic and Scientific Works ........... 1407 Conclusion .............................................................................................. 1413 FROMER IN PRINTER PROOF (DO NOT DELETE) 3/19/2012 8:25 PM 2012] INTELLECTUAL PROPERTY CLAUSE 1331 INTRODUCTION Could Congress enact perpetual copyright or patent protection? Could it grant copyright or patent rights to an entity other than a work’s author or inventor, respectively? Could it protect against the copying of works that are not fixed in a tangible medium? A look at the Constitution’s Intellectual Property Clause (IP Clause) alone suggests a probable-to-definite no to each of these questions. The IP Clause empowers Congress “To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.”1 The power contemplated by the IP Clause, however, is not the only power that the Constitution confers on Congress. Most expansively, the Constitution also enables Congress, under the Commerce Clause, “To regulate Commerce . among the several States.”2 Moreover, the Constitution grants Congress authority to spend money in certain ways to “provide for the . general Welfare of the United States”3 and to “make all Laws which shall be necessary and proper for carrying into Execution” the federal government’s enumerated powers.4 The Constitution also grants one house of Congress, the Senate, a considerable role in treatymaking.5 To the extent that congressional action fails to conform to the requirements of the IP Clause, then, could Congress nevertheless define or regulate rights in intellectual property by enacting any of the aforementioned expansive laws under these other powers? This Article relies on the text, structure, and history of the IP Clause, as well as subsequent governmental activity, Supreme Court doctrine, and policy, to show that the IP Clause is set up to limit Congress from using any of its other Article I powers “To promote the Progress of Science and useful Arts” through laws that would 1. U.S. CONST. art. I, § 8, cl. 8. As a term, “the IP Clause” is inaccurate in at least two ways: neither the term “intellectual property” nor its abbreviation appears in the Clause itself, and the term encompasses trademark law, which is outside the Clause’s scope. Dotan Oliar, Making Sense of the Intellectual Property Clause: Promotion of Progress as a Limitation on Congress’s Intellectual Property Power, 94 GEO. L.J. 1771, 1773 n.1 (2006); Edward C. Walterscheid, Inherent or Created Rights: Early Views on the Intellectual Property Clause, 19 HAMLINE L. REV. 81, 81 (1995); see also infra text accompanying notes 131–38. 2. U.S. CONST. art. I, § 8, cl. 3. 3. Id. art. I, § 8, cl. 1. 4. Id. art. I, § 8, cl. 18. 5. See id. art. II, § 2, cl. 2 (“[The President] shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur . .”). FROMER IN PRINTER PROOF (DO NOT DELETE) 3/19/2012 8:25 PM 1332 DUKE LAW JOURNAL [Vol. 61:1329 reach beyond the scope of the power conferred by the IP Clause to “secur[e] for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.”6 The evidence marshaled by this Article shows that if Congress seeks, via legislation, to promote the progress of science and useful arts, the only way it may do so is by enacting laws that secure to authors and inventors exclusive rights in their writings and discoveries for limited times. The IP Clause’s text and placement within the constitutional structure suggest that Congress possesses power to pursue the goal of promoting the progress of science and useful arts, but only by using the means specified by the Clause itself: namely, securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries. Additionally, the IP Clause’s history indicates that Congress cannot use other means to promote the specified end of promoting the progress of science and useful arts. For one thing, the Framers rejected other possible means of achieving this end, such as the ability to award grants and prizes.7 This choice implies that the Framers intended for Congress to use only the means explicitly identified
Load more

Recommended publications
  • Union Calendar No. 481 104Th Congress, 2D Session – – – – – – – – – – – – House Report 104–879
    1 Union Calendar No. 481 104th Congress, 2d Session ± ± ± ± ± ± ± ± ± ± ± ± House Report 104±879 REPORT ON THE ACTIVITIES OF THE COMMITTEE ON THE JUDICIARY OF THE HOUSE OF REPRESENTATIVES DURING THE ONE HUNDRED FOURTH CONGRESS PURSUANT TO CLAUSE 1(d) RULE XI OF THE RULES OF THE HOUSE OF REPRESENTATIVES JANUARY 2, 1997.ÐCommitted to the Committee of the Whole House on the State of the Union and ordered to be printed U.S. GOVERNMENT PRINTING OFFICE 36±501 WASHINGTON : 1997 COMMITTEE ON THE JUDICIARY HOUSE OF REPRESENTATIVES ONE HUNDRED FOURTH CONGRESS HENRY J. HYDE, Illinois, Chairman 1 CARLOS J. MOORHEAD, California JOHN CONYERS, JR., Michigan F. JAMES SENSENBRENNER, JR., PATRICIA SCHROEDER, Colorado Wisconsin BARNEY FRANK, Massachusetts BILL MCCOLLUM, Florida CHARLES E. SCHUMER, New York GEORGE W. GEKAS, Pennsylvania HOWARD L. BERMAN, California HOWARD COBLE, North Carolina RICH BOUCHER, Virginia LAMAR SMITH, Texas JOHN BRYANT, Texas STEVEN SCHIFF, New Mexico JACK REED, Rhode Island ELTON GALLEGLY, California JERROLD NADLER, New York CHARLES T. CANADY, Florida ROBERT C. SCOTT, Virginia BOB INGLIS, South Carolina MELVIN L. WATT, North Carolina BOB GOODLATTE, Virginia XAVIER BECERRA, California STEPHEN E. BUYER, Indiana JOSEÂ E. SERRANO, New York 2 MARTIN R. HOKE, Ohio ZOE LOFGREN, California SONNY BONO, California SHEILA JACKSON LEE, Texas FRED HEINEMAN, North Carolina MAXINE WATERS, California 3 ED BRYANT, Tennessee STEVE CHABOT, Ohio MICHAEL PATRICK FLANAGAN, Illinois BOB BARR, Georgia ALAN F. COFFEY, JR., General Counsel/Staff Director JULIAN EPSTEIN, Minority Staff Director 1 Henry J. Hyde, Illinois, elected to the Committee as Chairman pursuant to House Resolution 11, approved by the House January 5 (legislative day of January 4), 1995.
    [Show full text]
  • Uncertainty and the Standard of Patentability Robert P
    ARTICLE UNCERTAINTY AND THE STANDARD OF PATENTABILITY ROBERT P. MERGES" Table of Contents I. INTRODU CTION ................................................................................ 2 II. THE LEGAL STANDARD .................................................................. 4 A . Threshold Issues ............................................................................ 4 B. Doctrine .......................................................................................... 12 C. The Patent Standard and Races to Invent ................................. 15 D. Relationship Between Patent Standards and Patent Scop e ............................................................................................. .. 17 E. The Proposed Patent Standard ................................................... 19 II1. MODELING THE STANDARD: PATENTS AS INCENTIVES TO IN V EN T ........................................................................................ 20 A. A Formal Model of the Invention Process ............................... 20 B. Low Uncertainty Research and the Model ............................... 29 C. Incentives to Develop ................................................................. 32 D. Why Not Use Commercial Certainty as the Patentability Standard? ................................................. ................................... 33 E. Nonobviousness Doctrine and the Uncertainty-Based Model ............................................................................................. 34 F. Risk Aversion and High-Cost
    [Show full text]
  • Confusing Patent Eligibility
    CONFUSING PATENT ELIGIBILITY DAVID 0. TAYLOR* INTRODUCTION ................................................. 158 I. CODIFYING PATENT ELIGIBILITY ....................... 164 A. The FirstPatent Statute ........................... 164 B. The Patent Statute Between 1793 and 1952................... 166 C. The Modern Patent Statute ................ ..... 170 D. Lessons About Eligibility Law ................... 174 II. UNRAVELING PATENT ELIGIBILITY. ........ ............. 178 A. Mayo Collaborative Servs. v. Prometheus Labs............ 178 B. Alice Corp. v. CLS Bank Int'l .......... .......... 184 III. UNDERLYING CONFUSION ........................... 186 A. The Requirements of Patentability.................................. 186 B. Claim Breadth............................ 188 1. The Supreme Court's Underlying Concerns............ 189 2. Existing Statutory Requirements Address the Concerns with Claim Breadth .............. 191 3. The Supreme Court Wrongly Rejected Use of Existing Statutory Requirements to Address Claim Breadth ..................................... 197 4. Even if § 101 Was Needed to Exclude Patenting of Natural Laws and Phenomena, A Simple Statutory Interpretation Would Do So .................... 212 C. Claim Abstractness ........................... 221 1. Problems with the Supreme Court's Test................221 2. Existing Statutory Requirements Address Abstractness, Yet the Supreme Court Has Not Even Addressed Them.............................. 223 IV. LACK OF ADMINISTRABILITY ....................... ....... 227 A. Whether a
    [Show full text]
  • 01-618. Eldred V. Ashcroft
    1 IN THE SUPREME COURT OF THE UNITED STATES 2 - - - - - - - - - - - - - - - -X 3 ERIC ELDRED, ET AL., : 4 Petitioners : 5 v. : No. 01-618 6 JOHN D. ASHCROFT, ATTORNEY : 7 GENERAL : 8 - - - - - - - - - - - - - - - -X 9 Washington, D.C. 10 Wednesday, October 9, 2002 11 The above-entitled matter came on for oral 12 argument before the Supreme Court of the United States at 13 10:03 a.m. 14 APPEARANCES: 15 LAWRENCE LESSIG, ESQ., Stanford, California; on behalf of 16 the Petitioners. 17 THEODORE B. OLSON, ESQ., Solicitor General, Department of 18 Justice, Washington, D.C.; on behalf of the 19 Respondent. 20 21 22 23 24 25 1 Alderson Reporting Company 1111 14th Street, N.W. Suite 400 1-800-FOR-DEPO Washington, DC 20005 1 C O N T E N T S 2 ORAL ARGUMENT OF PAGE 3 LAWRENCE LESSIG, ESQ. 4 On behalf of the Petitioners 3 5 ORAL ARGUMENT OF 6 THEODORE B. OLSON, ESQ. 7 On behalf of the Respondent 25 8 REBUTTAL ARGUMENT OF 9 LAWRENCE LESSIG, ESQ. 10 On behalf of the Petitioners 48 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 2 Alderson Reporting Company 1111 14th Street, N.W. Suite 400 1-800-FOR-DEPO Washington, DC 20005 1 P R O C E E D I N G S 2 (10:03 a.m.) 3 CHIEF JUSTICE REHNQUIST: We'll hear argument 4 now in Number 01-618, Eric Eldred v. John D. Ashcroft. 5 Mr. Lessig. 6 ORAL ARGUMENT OF LAWRENCE LESSIG 7 ON BEHALF OF THE PETITIONERS 8 MR.
    [Show full text]
  • Patent Law: a Handbook for Congress
    Patent Law: A Handbook for Congress September 16, 2020 Congressional Research Service https://crsreports.congress.gov R46525 SUMMARY R46525 Patent Law: A Handbook for Congress September 16, 2020 A patent gives its owner the exclusive right to make, use, import, sell, or offer for sale the invention covered by the patent. The patent system has long been viewed as important to Kevin T. Richards encouraging American innovation by providing an incentive for inventors to create. Without a Legislative Attorney patent system, the reasoning goes, there would be little incentive for invention because anyone could freely copy the inventor’s innovation. Congressional action in recent years has underscored the importance of the patent system, including a major revision to the patent laws in 2011 in the form of the Leahy-Smith America Invents Act. Congress has also demonstrated an interest in patents and pharmaceutical pricing; the types of inventions that may be patented (also referred to as “patentable subject matter”); and the potential impact of patents on a vaccine for COVID-19. As patent law continues to be an area of congressional interest, this report provides background and descriptions of several key patent law doctrines. The report first describes the various parts of a patent, including the specification (which describes the invention) and the claims (which set out the legal boundaries of the patent owner’s exclusive rights). Next, the report provides detail on the basic doctrines governing patentability, enforcement, and patent validity. For patentability, the report details the various requirements that must be met before a patent is allowed to issue.
    [Show full text]
  • In the Service of Others: from Rose Hill to Lincoln Center
    Fordham Law Review Volume 82 Issue 4 Article 1 2014 In the Service of Others: From Rose Hill to Lincoln Center Constantine N. Katsoris Fordham University School of Law Follow this and additional works at: https://ir.lawnet.fordham.edu/flr Part of the Law Commons Recommended Citation Constantine N. Katsoris, In the Service of Others: From Rose Hill to Lincoln Center, 82 Fordham L. Rev. 1533 (2014). Available at: https://ir.lawnet.fordham.edu/flr/vol82/iss4/1 This Article is brought to you for free and open access by FLASH: The Fordham Law Archive of Scholarship and History. It has been accepted for inclusion in Fordham Law Review by an authorized editor of FLASH: The Fordham Law Archive of Scholarship and History. For more information, please contact [email protected]. DEDICATION IN THE SERVICE OF OTHERS: FROM ROSE HILL TO LINCOLN CENTER Constantine N. Katsoris* At the start of the 2014 to 2015 academic year, Fordham University School of Law will begin classes at a brand new, state-of-the-art building located adjacent to the Lincoln Center for the Performing Arts. This new building will be the eighth location for Fordham Law School in New York City. From its start at Rose Hill in the Bronx, New York, to its various locations in downtown Manhattan, and finally, to its two locations at Lincoln Center, the law school’s education and values have remained constant: legal excellence through public service. This Article examines the law school’s rich history in public service through the lives and work of its storied deans, demonstrating how each has lived up to the law school’s motto In the service of others and concludes with a look into Fordham Law School’s future.
    [Show full text]
  • TRIPS and Pharmaceutical Patents
    FACT SHEET September 2003 TRIPS and pharmaceutical patents CONTENTS Philosophy: TRIPS attempts to strike a balance 1 What is the basic patent right? 2 A patent is not a permit to put a product on the market 2 Under TRIPS, what are member governments’ obligations on pharmaceutical patents? 2 IN GENERAL (see also “exceptions”) 2 Exceptions 3 ELIGIBILITY FOR PATENTING 3 RESEARCH EXCEPTION AND “BOLAR” PROVISION 3 ANTI-COMPETITIVE PRACTICE, ETC 4 COMPULSORY LICENSING 4 WHAT ARE THE GROUNDS FOR USING COMPULSORY LICENSING? 5 PARALLEL IMPORTS, GREY IMPORTS AND ‘EXHAUSTION’ OF RIGHTS 5 THE DOHA DECLARATION ON TRIPS AND PUBLIC HEALTH 5 IMPORTING UNDER COMPULSORY LICENSING (‘PAR.6’) 6 What does ‘generic’ mean? 6 Developing countries’ transition periods 7 GENERAL 7 PHARMACEUTICALS AND AGRICULTURAL CHEMICALS 7 For more information 8 The TRIPS Agreement Philosophy: TRIPS attempts to strike a balance Article 7 Objectives The WTO’s Agreement on Trade-Related Aspects of The protection and enforcement of intellectual property Intellectual Property Rights (TRIPS) attempts to strike rights should contribute to the promotion of technological innovation and to the transfer and a balance between the long term social objective of dissemination of technology, to the mutual advantage providing incentives for future inventions and of producers and users of technological knowledge and creation, and the short term objective of allowing in a manner conducive to social and economic welfare, and to a balance of rights and obligations. people to use existing inventions and creations. The agreement covers a wide range of subjects, from Article 8 copyright and trademarks, to integrated circuit Principles designs and trade secrets.
    [Show full text]
  • 13-485 Comptroller of Treasury of MD. V. Wynne (05/18/2015)
    (Slip Opinion) OCTOBER TERM, 2014 1 Syllabus NOTE: Where it is feasible, a syllabus (headnote) will be released, as is being done in connection with this case, at the time the opinion is issued. The syllabus constitutes no part of the opinion of the Court but has been prepared by the Reporter of Decisions for the convenience of the reader. See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337. SUPREME COURT OF THE UNITED STATES Syllabus COMPTROLLER OF THE TREASURY OF MARYLAND v. WYNNE ET UX. CERTIORARI TO THE COURT OF APPEALS OF MARYLAND No. 13–485. Argued November 12, 2014—Decided May 18, 2015 Maryland’s personal income tax on state residents consists of a “state” income tax, Md. Tax-Gen. Code Ann. §10–105(a), and a “county” in- come tax, §§10–103, 10–106. Residents who pay income tax to anoth- er jurisdiction for income earned in that other jurisdiction are al- lowed a credit against the “state” tax but not the “county” tax. §10– 703. Nonresidents who earn income from sources within Maryland must pay the “state” income tax, §§10–105(d), 10–210, and nonresi- dents not subject to the county tax must pay a “special nonresident tax” in lieu of the “county” tax, §10–106.1. Respondents, Maryland residents, earned pass-through income from a Subchapter S corporation that earned income in several States. Respondents claimed an income tax credit on their 2006 Maryland income tax return for taxes paid to other States. The Mary- land State Comptroller of the Treasury, petitioner here, allowed re- spondents a credit against their “state” income tax but not against their “county” income tax and assessed a tax deficiency.
    [Show full text]
  • The Thinness of Catholic Legal Education, a Review of Robert J
    Loyola University Chicago, School of Law LAW eCommons Faculty Publications & Other Works 2019 The Thinness of Catholic Legal Education, a Review of Robert J. Kaczorowski, Fordham University Law School: A History John M. Breen Lee J. Strang Follow this and additional works at: https://lawecommons.luc.edu/facpubs Part of the Legal Education Commons BOOK REVIEW THE THINNESS OF CATHOLIC LEGAL EDUCATION, A REVIEW OF ROBERT J. KACZOROWSKI, FORDHAM UNIVERSITY LAW SCHOOL: A HISTORY JOHN M. BREEN* & LEE J. STRANG* I. INTRODUCTION In his book, Fordham University Law School: A History,' Robert J. Kaczorowski has authored an informative history of Fordham Law School. This highly readable and well-researched volume describes the ups and downs, the triumphs and failures, and the key people and events at Fordham Law School, where the author has served as a faculty member since 1986. The overall story that Kaczorowski tells is one of an urban law school founded in 1905 to serve the professional aspirations of the children of New York's Catholic immigrants-a school that rose from modest beginnings to be among the nation's finest, but then languished in mediocrity for decades due to the syphoning off of revenues by University administrators. This period of unfulfilled potential came to an end in the 1990s, when Fordham Law School returned to elite status through a fairer allocation of resources, the creation of new programs and institutes, the admission of a highly quali- fied, national student body, and the hiring of a more scholarly and produc- tive faculty. Kaczorowski's history is also a welcome addition to the assortment of books that tell the particular histories of individual American law schools,2 in part because Fordham Law School is part of a Jesuit university, and the * Georgia Reithal Professor of Law, Loyola University Chicago School of Law.
    [Show full text]
  • The Original Meaning of the Constitution's Postal Clause
    Birmingham City School of Law British Journal of British Journal of American Legal Studies | Volume 7 Issue 1 7 Issue Legal Studies | Volume British Journal of American American Legal Studies Volume 7 Issue 1 Spring 2018 ARTICLES Founding-Era Socialism: The Original Meaning of the Constitution’s Postal Clause Robert G. Natelson Toward Natural Born Derivative Citizenship John Vlahoplus Felix Frankfurter and the Law Thomas Halper Fundamental Rights in Early American Case Law: 1789-1859 Nicholas P. Zinos The Holmes Truth: Toward a Pragmatic, Holmes-Influenced Conceptualization of the Nature of Truth Jared Schroeder Acts of State, State Immunity, and Judicial Review in the United States Zia Akthar ISSN 2049-4092 (Print) British Journal of American Legal Studies Editor-in-Chief: Dr Anne Richardson Oakes, Birmingham City University. Associate Editors Dr. Sarah Cooper, Birmingham City University. Dr. Haydn Davies, Birmingham City University. Prof. Julian Killingley, Birmingham City University. Prof. Jon Yorke, Birmingham City University. Seth Barrett Tillman, National University of Ireland, Maynooth. Birmingham City University Student Editorial Assistants 2017-2018 Mercedes Cooling Graduate Editorial Assistants 2017-2018 Amna Nazir Alice Storey Editorial Board Hon. Joseph A. Greenaway Jr., Circuit Judge 3rd Circuit, U.S. Court of Appeals. Hon. Raymond J. McKoski, Circuit Judge (retired), 19th Judicial Circuit Court, IL. Adjunct Professor of Law, The John Marshall Law School, Chicago, IL. Prof. Antonio Aunion, University of Castille-la Mancha. Prof. Francine Banner, Phoenix School of Law, AZ. Prof. Devon W. Carbado, UCLA, CA. Dr. Damian Carney, University of Portsmouth, UK. Dr. Simon Cooper, Reader in Property Law, Oxford Brookes University. Prof.
    [Show full text]
  • An Unconventional Approach to Reviewing the Judicially Unreviewable: Applying the Dormant Commerce Clause to Copyright Donald P
    Kentucky Law Journal Volume 104 | Issue 1 Article 5 2016 An Unconventional Approach to Reviewing the Judicially Unreviewable: Applying the Dormant Commerce Clause to Copyright Donald P. Harris Temple University Beasley School of Law Follow this and additional works at: https://uknowledge.uky.edu/klj Part of the Constitutional Law Commons, and the Intellectual Property Law Commons Right click to open a feedback form in a new tab to let us know how this document benefits you. Recommended Citation Harris, Donald P. (2016) "An Unconventional Approach to Reviewing the Judicially Unreviewable: Applying the Dormant Commerce Clause to Copyright," Kentucky Law Journal: Vol. 104 : Iss. 1 , Article 5. Available at: https://uknowledge.uky.edu/klj/vol104/iss1/5 This Article is brought to you for free and open access by the Law Journals at UKnowledge. It has been accepted for inclusion in Kentucky Law Journal by an authorized editor of UKnowledge. For more information, please contact [email protected]. An Unconventional Approach to Reviewing the Judicially Unreviewable: Applying the Dormant Commerce Clause to Copyright Donald P. Harris' "[B]y virtually ignoring the central purpose of the Copyright/Patent Clause ... the Court has quitclaimed to Congress its principal responsibility in this area of the law. Fairly read, the Court has stated that Congress' actions under the Copyright/Patent Clause are, for all intents and purposes, 2 judicially unreviewable." INTRODUCTION On July 15, 2014, the House Judiciary Committee, Subcommittee on Courts, Intellectual Property, and the Internet, held one of a number of hearings reviewing the Copyright Act.3 This particular hearing focused, among other things, on the copyright term (the length over which copyrights are protected).4 While it is not surprising that Congress is again considering the appropriate term for copyrights- Congress has reviewed and increased the copyright term many times since the first Copyright Act of 1791 5-it is troubling because Congress has unfettered discretion in doing so.
    [Show full text]
  • Mail Fraud State Law and Post-Lopez Analysis George D
    Cornell Law Review Volume 82 Article 1 Issue 2 January 1997 Should Federalism Shield Corruption?-Mail Fraud State Law and Post-Lopez Analysis George D. Brown Follow this and additional works at: http://scholarship.law.cornell.edu/clr Part of the Law Commons Recommended Citation George D. Brown, Should Federalism Shield Corruption?-Mail Fraud State Law and Post-Lopez Analysis , 82 Cornell L. Rev. 225 (1997) Available at: http://scholarship.law.cornell.edu/clr/vol82/iss2/1 This Article is brought to you for free and open access by the Journals at Scholarship@Cornell Law: A Digital Repository. It has been accepted for inclusion in Cornell Law Review by an authorized administrator of Scholarship@Cornell Law: A Digital Repository. For more information, please contact [email protected]. SHOULD FEDERALISM SHIELD CORRUPTION?- MAIL FRAUD, STATE LAW AND POST-LOPEZ ANALYSIS George D. Brownt I. INTRODUCTION-PROTECTION THROUGH PROSECUTION? There is a view of state and local governments as ethically-chal- lenged backwaters,' veritable swamps of corruption in need of the ulti- mate federal tutelage: protection through prosecution. Whether or not the view is accurate, the prosecutions abound.2 Many metropoli- tan newspapers have chronicled the federal pursuit of errant state and local officials.3 The pursuit is certain to continue. In the post-Water- gate period, the Justice Department has made political corruption at all levels of government a top priority.4 A vigorous federal presence in t Professor of Law and Associate Dean, Boston College Law School. A.B. 1961, Harvard University, LL.B. 1965, Harvard Law School. Chairman, Massachusetts State Eth- ics Commission.
    [Show full text]