Property as Institutions for Resources: Lessons from and for IP

Julie E. Cohen

94 Texas L. Rev. 1

PDF Document

The idea of property in land as the paradigm case of property exercises despotic dominion over property thinking. From the perspective of evolving political economy, however, a land-centric model of property makes very little sense. Property institutions coordinate access to resources, and so it is reasonable to expect them to differ in ways that respond to the characteristics of those resources. The debate about whether intellectual property (IP) is property is instructive. IP scholars have pursued the property debate using a conceptual framework derived from common law real property doctrines and organized around the practical and theoretical problems associated with property rights in land, but the resources at the center of debates about the appropriate extent of IP-rightholder control could not be more different from land. Intellectual resources are routinely sliced and diced, aggregated and fractionated, used and reused, in ways that land is not and could not be. This might mean that IP is not property, as some have argued, or it might mean that we have outgrown the monolithic, land-centric model—that in the postindustrial era of wealth production, the cosmology of property can no longer place terra firma at the center.

This Article develops an account of property as a set of resource-dependent legal institutions characterized by overlapping sets of family resemblances and then reconsiders the IP question. Property in intellectual goods resembles property in land in some respects, property in natural resources in other respects, property in corporations in others, and property in intangible financial instruments in still others, but also systematically diverges from each of those other forms of property. Legal institutions for IP must accommodate four important points of divergence: the different incentives of creators and intermediaries; the variety of ways in which intellectual goods are produced; the central importance of intermediation within IP ecologies; and the widespread use of licensing to delineate rights and obligations.

Do Laws Have a Constitutional Shelf Life?

Allison Orr Larsen

94 Texas L. Rev. 59

PDF Document

Times change. A statute passed today may seem obsolete tomorrow. Does the Constitution dictate when a law effectively expires? In Shelby County v. Holder, the 2013 decision that invalidated a provision of the Voting Rights Act, the Court seems to answer that question in the affirmative. Although rational and constitutional when written, the Court held that the coverage formula of the law grew to be irrational over time and was unconstitutional now because it bears “no logical relation to the present day.” This reason for invalidating a law is puzzling. The question answered in Shelby County was not about whether Congress had constitutional power to pass the Voting Rights Act. It was not even about whether our understanding of the scope of that power had changed from 1965 to 2013. The question was whether the passage of time and changed circumstances created a distinct reason to nullify the law.

In this Article, I label this question one of a “constitutional shelf life.” The plaintiffs in Shelby County were not the first ones to ask for invalidation of an unconstitutionally stale law, and they will not be the last. Indeed, since the decision, plaintiffs as varied as marijuana enthusiasts and funeral-home directors have cited Shelby County for the claim that the “current burdens” of a law “must be justified by current needs.” The goal of this Article is to track the idea of a shelf life across various aspects of constitutional law, to demonstrate that the issue arises in far more contexts than one might anticipate, and then to offer an approach for principled application.

Antislavery Women and the Origins of American Jurisprudence

Alfred L. Brophy

94 Texas L. Rev. 115

PDF Document

“Antislavery Women and the Origins of American Jurisprudence” is a Review of Sarah Roth’s Gender and Race in Antebellum Popular Culture (Cambridge University Press, 2014). It assesses Roth’s account of the dialogue between antislavery and proslavery writers. Roth finds that the antislavery and proslavery writers were joined in their depiction of enslaved people in the 1820s and early 1830s—as savage people who threatened rebellion. But as antislavery writers shifted to portray enslaved people as humble citizens in waiting, the proslavery writers responded with an image of the plantation as a family. This critique turns to Southern judges and treatise writers to provide a slightly different picture, which shows that while the public face of the proslavery movement may have been of happy enslaved people, the hard-nosed economic and legal side continued with the initial image of enslaved people. This became particularly salient as the South moved toward the Civil War. Roth perceptively portrays the shift in the North that led to increasing calls for African-American freedom and citizenship and the rise of empirical critiques of law, which became central to postwar jurisprudence. That is, the antislavery white women in Roth’s study injected empirical as well as humanitarian considerations into jurisprudence. Meanwhile, in the Southern courts the reaction to calls for citizenship resulted in increasingly dramatic efforts to deny citizenship and ultimately in a secession movement along the lines sketched by Southern legal thinkers.

Counting the Right to Vote in the Next Census: Reviving Section Two of the Fourteenth Amendment

Michael Hurta

94 Texas L. Rev. 147

PDF Document

In this Note, Mr. Hurta explores the role that Section Two of the Fourteenth Amendment can play in protecting the right to vote. Section Two of the Fourteenth Amendment, which states that a state’s congressional apportionment basis shall be lessened when it abridges or denies citizens’ right to vote, is often viewed as a historical anomaly. While Section Two does not directly invalidate any laws, it has no limitations on the intent of voter abridgments, so it reaches farther than any other voter protection in American law. Furthermore, statutory law already gives the power to enforce Section Two to an executive agency: the Census Bureau has the authority to collect data as necessary for congressional apportionment. Mr. Hurta therefore argues that the 2020 Census should ask questions about people’s right to vote, and the subsequent apportionment calculations ought to take that data into account. By adhering to this legal duty, the Census Bureau will become one of the most powerful protectors of voting rights in the government.

Toward True Fair-Chance Hiring: Balancing Stakeholder Interests and Reality in Regulating Criminal Background Checks

Ian B. Petersen

94 Texas L. Rev. 175

PDF Document

Background checks often lead employers to discriminate against ex-offenders by giving these applicants lesser consideration, or even throwing out their applications altogether. But although ex-offenders are more likely to recidivate, there is little or no evidence that they will “act out” on the job, especially where their criminal record is unrelated to the job duties for the position sought. Additionally, recidivism rates drop significantly within just a few years of release. On the other hand, knowledge of certain crimes might be valuable to employers.

In his Note, Mr. Petersen argues that a balance between these two interests can be struck. Specifically, he urges using a four-part framework to regulate the use of criminal records in employment. His proposed system enables a firm to examine a candidate’s entire criminal record, thereby protecting them from various legal claims and risks, while simultaneously diminishing the chance of prejudice due to unrelated crimes. Mr. Petersen concludes by assessing the current federal approach and local / state approaches. He finds that current approaches are fundamentally inadequate, and that ban the box policies, while widely adopted and largely useful, could be improved with his proposed system.

Of Horses, Donkeys, and Mules

David A. Anderson

94 Texas L. Rev. See Also 1

PDF Document

In this Essay, Professor Anderson analyzes the recent Supreme Court decision Walker v. Texas Division, Sons of Confederate Veterans, Inc. and concludes that the Court’s disposition failed to address the issues presented by hybrid government–private speech.

The Conscious Congress: How Not to Define Overrides

Matthew R. Christiansen, William N. Eskridge Jr. & Sam N. Thypin-Bermeo

93 Texas L. Rev. See Also 289

PDF Document

Mr. Christiansen, Professor Eskridge and Mr. Thypin-Bermeo respond to Mr. Buatti and Professor Hasen’s recent response to Mr. Christiansen and Professor Eskridge’s article on congressional overrides.

Congratulations to Volume 94 New Members!

The Texas Law Review is proud to announce its volume 94 membership! Congratulations to all our new members, and welcome to TLR!

The Masthead is now available for download:

PDF Document

Congratulations to the Volume 94 Editorial Board!

The Texas Law Review is proud and excited to announce the Editorial Board for Volume 94. The members of Volume 93 are happy to pass the torch to such a fantastic group of people. A copy of the masthead for the Volume 94 Editorial board can be found here.

TLR Alumni Score the Top Grades on the Texas Bar Exam

The Texas Law Review would like to congratulate two of its Volume 92 alumni for achieving the top two scores on the July 2014 Texas Bar Exam. Jamie Yarbrough, who served as the Research Editor on Volume 92′s editorial board, had the top score followed closely by Michael Kelso, an Articles Editor on Volume 92′s editorial board. Mr. Yarbrough is currently working as an associate for Baker Botts in Houston while Mr. Kelso is clerking for Judge Carolyn King of the Fifth Circuit Court of Appeals.


Congratulations to Volume 93 New Members!

The Texas Law Review is proud to announce its volume 93 membership!  Congratulations to all our new members, and welcome to TLR!

The Masthead is now available for download:

PDF Document