Volume 88, Issue 2
Articles
"Intellectual property" is increasingly becoming a misnomer, since incentives to create are today often granted in the form of liability rights rather than a property-type right to exclude. In this Article, Professor Crane revisits the assumptions implicit in the term "intellectual property," finding that the debate over whether liability or property rules provide better incentives focuses too narrowly on the pros and cons of the right to exclude.
Crane suggests reframing the debate; if the right to exclude is one in a bundle of sticks (rights), then the question of whether property or liability is the better model for intellectual rights should be answered "with reference to the totality of sticks in the bundle of rights." The Article begins with an exploration of the varying pressures causing the partial "depropertization" of intellectual property rights. Many of these pressures stem from a concern that rightsholders with power to exclude enjoy a monopoly-holdout position that enables them to extract excessive royalties.
Crane then argues his central normative claim: "that the effect of depropertization on the incentives of inventors and creators to undertake 'useful arts' cannot be assessed in isolation. Instead, everything depends on the valence of intellectual rights—the interaction between the various sticks in the bundle." Finally, the Article considers how to operationalize a decisional rule regarding intellectual property rights that accounts for the interactions among various sticks in the possible bundle.
The Constitution provides former Presidents with no powers or role, and yet numerous former presidents have asserted executive privilege in order to withhold information from Congress, historians, and the public. In this Article, Professor Sacharoff argues that former presidents should not retain any power to assert executive privilege.
Sacharoff highlights the extent of this problem--executive privilege has been used as a shield by presidents including Truman, Nixon, and George W. Bush. This article engages the question, largely neglected in legal scholarship to date, of whether such privilege remains in former presidents or transfers to the sitting President. Notwithstanding the decision in Nixon v. Administrator of General Services, Sacharoff concludes that former Presidents should retain no right to assert the privilege, using an analysis based upon the text, structure, and historical context of the Constitution and its antimonarchical premises, as well as the nature of executive privilege when compared to other privileges.
Book Reviews
Professor Finkelman reviews two books on constitutional and Supreme Court history: The Supreme Court and the American Elite, 1789–2008 and The Supreme Court: An Essential History.
He notes that both books illustrate the complexity of studying history and the futility of originalism as a method of constitutional interpretation. Finkelman argues that each book’s academic contribution is important, however, because history is vital to a complete understanding of the Constitution and the Supreme Court’s constitutional jurisprudence.
Notes
In this Note, Mann discusses the problems with the current management of the High Plains Aquifer—the largest mainland aquifer in the United States.
In order to avoid depletion of the aquifer, he suggests a change in the governance scheme. Beginning with the assumption that the best management scheme is one that promotes goals of equitable and sustainable use, Mann argues that the best governance system is an interstate compact built on the principles of horizontal federalism.
In this Note, Wimberly addresses one of the areas where trademark protections break down--the problem of "holdover licensees," when an entity formerly licensed to use a mark continues to do so after the license has expired or terminated.
He argues that infringement liability alone is typically insufficient to satisfy trademark law doctrine and policy. Instead, he proposes that holdover licensees should generally incur liability for a more severe and more appropriate cause of action: trademark counterfeiting. Wimberly explores the deficient precedents that in his view have allowed holdover licensees in certain courts to escape counterfeiting liability, then suggests potential legislative and judicial solutions that would enable courts to more readily impose counterfeiting liability in appropriate cases.
