Intellectualizing Property: The Tenuous Connections Between Land and Copyright

Stewart E. Sterk
Increased use of the intellectual property label to describe copyright and related areas of law has spawned analogies to the protections afforded real property. These analogies ignore significant differences between the foundations that undergird real and intellectual property rights. In particular, real property rights operate to avoid breaches of the peace and tragedies of the commons—problems that do not arise with intellectual works—while copyright and other intellectual property rights are…

On Discovering Doctrine: “Justice” in Contract Agreement

I pursue here what might be termed “doctrinal jurisprudence”: Study of the way facts (including rules) become legal doctrine, specifically here how idiosyncratic perceptions concerning “justice” facts support the development of contract agreement doctrine. This Article investigates the relationship between the way we encounter data (including laws, and specifically a contract law) and what we may conclude about the Law, as doctrine, that emerges from that encounter.

Political Bargaining and Judicial Intervention in Constitutional and Antitrust Federalism

Jim Rossi
Federal judicial deference to state and local regulation is at the center of contentious debates regarding the implementation of competition policy. This Article invokes a political process bargaining framework to develop a principled approach for addressing the appropriate level of judicial intervention under the dormant commerce clause and state-action immunity from antitrust enforcement. Using illustrations from network industries, it is argued that, at core, these two independent doctrines share a…
Book Review

Awakening an Empire of Liberty: Exploring the Roots of Socratic Inquiry and Political Nihilism in American Democracy

Maurice R. Dyson