Property as Institutions for Resources: Lessons from and for IP

Julie E. Cohen

94 Texas L. Rev. 1

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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

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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

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“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

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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

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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.

The “Right to Try” Investigational Drugs: Science and Stories in the Access Debate

Rebecca Dresser

93 Texas L. Rev. 1631

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Right-to-try laws grant terminally ill patients the right to try investigational drugs. States began enacting these laws in 2014. Professor Dresser analyzes the rhetoric used by access advocates and defenders of access restrictions in the policy debates surrounding right-to-try laws. She concludes that the debate up until this point has included selective storytelling that has failed to give an accurate picture of the implications of right-to-try laws and that such selectiveness needs to be remedied in order to have informed debate on the subject.

Where Law and Science (and Religion?) Meet

David L. Faigman

93 Texas L. Rev. 1659

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The law is a great borrower, taking as it sees fit findings from science and values and insights of religion. It does so, however, exclusively for reasons associated with its own objectives which are many and varied and include ideals of justice, fairness, and accuracy, as well as more mundane considerations such as efficiency and finality. In this Article, Professor Faigman explores the intersection of law and science and offers some tentative observations regarding where law and science have their roots—in religion.

Criminal Law’s Science Lag: How Criminal Justice Meets Changed Scientific Understanding

Jennifer E. Laurin

93 Texas L. Rev. 1751

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Many people have been convicted of crimes based upon science that was completely discredited after their conviction. Professor Laurin dubs the time between such a conviction and the change in scientific understanding as “science lag.” She details how she thinks the criminal justice system does and should take changes in scientific knowledge into effect by remedying already-adjudicated criminal cases.

Rethinking Judicial Review of Expert Agencies

Elizabeth Fisher, Pasky Pascual & Wendy Wagner

93 Texas L. Rev. 1681

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When generalist courts review agency decisions, they are often faced with the problem of needing to provide judicial oversight while at the same time not second-guessing the agency’s technical expertise. Professor Fisher, Mr. Pascual and Professor Wagner performed an empirical study on national ambient air quality standards (NAAQS) decisions to determine how courts decide these kinds of cases. They conclude that judicial review of agency decisions is a multifaceted collaborative effort between the agency and the courts and that internal yardsticks adopted by the agency provide helpful tools for courts to review agency decisions.

Serviceable Truths: Science for Action in Law and Policy

Sheila Jasanoff

93 Texas L. Rev. 1723

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A discussion of the appropriate relationship between science and the law often devolves into discussing how scientific knowledge may be better transmitted into legal proceedings. Professor Jasanoff argues that this framing of the relationship between science and the law is asymmetric. She looks to science and technology studies in order to describe a more symmetric way of understanding the ideal relationship between science and the law.