Today I presented my work in progress, “A Heap of IP: Vagueness in the Delineation of Intellectual Property Rights,” at the Works-in-Progress in Intellectual Property (WIPIP) Conference at Santa Clara University School of Law. This project seeks to connect philosophical literature on vagueness with the intellectual property law literature on claiming. Slides below; comments welcome.
Legal Theory
Presentation: Knowledge as a Resource at WIPIP 2023
This past weekend at the 20th Annual Works in Progress in Intellectual Property Colloquium (WIPIP 2023) at Suffolk University in Boston, I presented yet another chunk of my long-running book project, Valuing Progress: A Pluralist Account of Knowledge Governance. This piece, Knowledge as a Resource, examines those characteristics of knowledge–particularly nonrivalrousness–that distinguish knowledge from other goods that are subject to evaluation under the criteria of distributive justice. Because knowledge can be shared without depriving the sharer of anything, norms of distributive justice that have developed in the context of rivalrous goods–norms such as reciprocity–generate paradoxes when we try to apply them to knowledge. This requires us to choose among competing and contestable values underlying and justifying those norms. With respect to reciprocity, for example, it requires us to decide whether reciprocity is grounded in the value of compensation for burdens borne or in the value of gratitude for benefits received. While the distinction between these two justifications can often be ignored for rivalrous goods–particularly where institutions like property rights and markets limit exchange to goods over which parties agree as to their value–it cannot be ignored for knowledge: we must choose one at the expense of the other. The inevitability of such choices among competing values is the overarching theme of the book.
Slides for Knowledge as a Resource can be found here:
New Paper on Reverse Confusion in George Mason Law Review
I’ve posted a newly published paper to SSRN: Reverse Confusion and the Justification of Trademark Protection, 30 Geo. Mason L. Rev. 123 (2022). This paper continues my series of critiques of the law-and-economics model of trademark law–which doesn’t match the cases very well–and further develops my own alternative model of trademark as promise, grounded in contractualist ethics. Other papers in this series include Marks, Morals and Markets, 65 Stan. L. Rev. 761 (2013); and Finding Dilution, in Research Handbook on Trademark Law Reform (Graeme Dinwoodie & Mark Janis eds., Edward Elgar Press 2021). Comments are welcome.
Now In Print: Legal Sets
Published Version Available Here
Tenure has its privileges.
Three years ago, I posted on this site that I had spent the year prior working up a lengthy, dense draft of a deeply theoretical piece that had grown out of my noodling over a relatively small doctrinal question in trademark law. This draft was well outside of my usual wheelhouse: technical, philosophical, and abstract. It marked the beginning of what has now become a sharp pivot in my scholarly career, into more self-consciously philosophical investigations of the rules we impose on the creation and dissemination of knowledge.
Initially journals reacted coolly–which I can’t fault them for; the piece is long by law review standards and the framework is more technical and less accessible than standard law review fare. I took some time to get feedback from more accomplished legal theorists than myself, I revised the draft, and ultimately it found a home at the Cardozo Law Review, whose student editors worked hard to improve the piece and have now published Legal Sets in their June 2019 issue (which includes a number of other interesting pieces). All told, that means this project took four years to move from the question that first got me working on it to a final, published article. I am deeply cognizant of the tremendous privilege I enjoy in being able to earn a living by dedicating such a significant chunk of my life to this type of work, and I hope I’m making good on that privilege.
This is the kind of work–and the kind of departure from familiar subjects and methods–that I never would have attempted pre-tenure. The risk of failure was great; the opportunity costs were high, and the need to produce measurable outputs to get me through the next gate on my career path was too pressing. But you know, at the risk of tooting my own horn, I think this article is pretty good, and despite its theoretical cast I think it makes a real contribution to a sounder understanding of how law works in practice. So I come away from the experience of writing this piece with a renewed gratitude for the privilege of academic freedom and job security, and a renewed sense that the general absence of such freedom and security from our economy (outside of the shrinking rarefied precincts of the tenure-track academy) is almost surely holding our society back from its full potential.
New Draft: Jefferson’s Taper
Read Jefferson’s Taper on SSRN
A little less than a year ago, I made a startling discovery about Thomas Jefferson’s famous observation on the nature of ideas, which (he argued) spread like fire from one person to the next without diminishing the possession of anyone who shares them. As I discovered, Jefferson copied this metaphor from a nearly identical passage in Cicero’s De Officiis–a work of philosophy that was once one of the world’s most widely-read books, but which today few people have even heard of. As I mined out the implications of Jefferson’s unattributed borrowing, I came to conclude that we have been misreading him for almost a hundred years. Rather than making a proto-utilitarian argument in favor of a limited system of patent rights, Jefferson was instead making a natural law argument–exactly the type of argument that his modern-day detractors rely on to support their policy prescriptions regarding the scope of intellectual property rights. And in fact, gaming out the implications of Jefferson’s natural law argument leads to the conclusion that knowledge creators may actually have some obligations to share their knowledge, rooted in a particular pre-Enlightenment conception of natural law and distributive justice.
Doing the work of fleshing out these implications required me to immerse myself in some old and (to me) unfamiliar philosophical sources for much of the past year. The result is the most “scholarly” work of scholarship I think I’ve ever produced: Jefferson’s Taper, now in draft on SSRN, and hopefully coming soon to a law review near you. This was a ton of fun to research and write; I think it is going to surprise a fair number of people. Comments, as always, are most welcome.
New Draft: Law and Philosophy in IP
I’ve just posted a draft of a new paper to SSRN on law and philosophy scholarship in intellectual property. It is my contribution to a forthcoming handbook from Oxford University Press, edited by Irene Calboli and Lillà Montagnani, on methodologies in IP research. Here’s the abstract:
Intellectual property (IP) law and philosophy is an interdisciplinary approach to scholarship that applies insights and methods from philosophy to the legal, normative, theoretical, political, and empirical questions presented by the project of organizing and regulating the creation and dissemination of knowledge, technology, and culture. In this chapter, I outline four types of IP-law-and-philosophy scholarship, focusing specifically on the discipline of analytic philosophy (with appropriate caveats about the coherence of that discipline). These modes of scholarship can be categorized as (1) the jurisprudence of the IP system, (2) philosophical analysis of IP law, (3) applied philosophy in IP, and (4) normative theory of IP. Category (4) is obviously a special case of category (3), focusing specifically on applications of moral philosophy. Within each category, I provide illustrative examples of past scholarship and suggestions for further research.
As always, comments are welcome.
Article V, the Senate, and the House of Lords Option
It is not news that the United States Senate is a deeply anti-democratic institution. With population shifts sorting whiter, older Americans into low-population states and younger, more diverse Americans into high-population states, the anti-democratic bent of the Senate is becoming a systematic bias that will soon have the effect of delivering a veto over federal legislation and executive and judicial appointments to an increasingly insular and cohesive racial and demographic minority. But people who should know better also say there’s nothing to be done about it, because Article V of the Constitution provides that the Amendment process is qualified to the extent that “no state, without its consent, shall be deprived of its equal suffrage in the Senate.” We’re stuck with the anti-democratic Senate, the naysayers cluck, as if to think otherwise is hopelessly naive. Democracy in America was doomed from the start; the only way to fix it is to ditch the Constitution and start from scratch (and that’ll never happen anyway, so we may as well give up).
This defeatism does not befit a self-governing people. More importantly, it is hogwash. The Senate is not amendment-proof, and Americans who value democratic governance ought to be planning how best to do away with it. Any creative lawyer should be able to recognize that the supposed roadblock of Article V can be easily worked around. Article V says that no constitutional amendment can deprive any state of its equal vote in the Senate. It says nothing about how constitutional amendments may affect the powers of the Senate. If we can’t change who votes in the Senate, we can change what they get to vote on. And though such changes must clear the supermajority thresholds of the Article V amendment process, there are tools available to simple popular majorities to create the pressure necessary to clear such those thresholds. There is precedent for it, in fact: the United Kindgom followed this path a century ago.
First, we can dispense with the supposedly implacable Constitutional text. Article V poses no obstacle to amending the bicameralism requirement of Article I so as to make passage of bills by the House of Representatives sufficient to send a bill to the President for signature. It poses no obstacle to giving the House of Representatives (or some other body) the “advice and consent” responsibilities of the Senate over executive and judicial appointments, or the responsibility for ratifying treaties. It poses no obstacle to modifying the impeachment process so as to vest the power to remove federal officers in the House of Representatives alone, or to assign the trial of impeachments to some other body. There is literally nothing that the Senate does that cannot be assigned to some other institution by constitutional amendment. The fact that we would be left with 100 sinecures on the federal payroll is the only cost of such a strategy—and one that could be remedied by reducing the pay and staff of Senators in a manner consistent with the 27th Amendment’s limitations on varying the pay of legislators between elections.
But now, we come to the practical obstacles to amendment. Article V makes constitutional amendment very difficult. Supermajorities of both houses of Congress and super-duper-majorities of the state legislatures have to concur for such an amendment to pass. And it is difficult to imagine the states that benefit from having greater share of votes in the Senate than they would have in a proportionally apportioned legislature—which by definition constitutes a majority of the states—voluntarily giving those powers away. If the Constitution is to be amended to reallocate power away from the Senate, the states that stand to lose from such a reallocation need to have a reason to go along.
However, the Constitution also provides a vehicle to assert leverage over such states that does not require supermajority support: admitting new states. By an Act of Congress, new states can be admitted to the Union—with two new senators apiece and a vote on any proposed constitutional amendment. If an existing state consents by vote of its legislature, it can also be divided into multiple states by an Act of Congress; each new subdivided state would similarly be entitled to two senators and a vote on any constitutional amendment (application of this latter tool to sever Maine from Massachusetts was the key to the infamous Missouri Compromise). The Constitution imposes no population constraint on the creation of new states; my apartment can be a state if Congress certifies that it has “a republican form of government.” Many people have pointed out that a top priority for the next period of unified Democratic control over both houses of Congress and the White House should be statehood for Puerto Rico and Washington, DC; a few have gone so far as to toy with the “make more states” option. Serious action to ensure a democratically elected federal legislature will require a willingness to go much further: it will require a transparent agenda to “pack the Union.” This will require, at a minimum:
- a publicly-stated willingness to create enough new states that will predictably commit to reducing the Senate’s powers to command the 3/4 supermajority required to pass a constitutional amendment, and
- a credible and transparent plan to create these new states.
To implement such a plan would be clumsy, norm-breaking, logistically challenging. But it could be done, and it would not be extra-constitutional to do it. Most importantly, the willingness and ability to do it may make actually doing it unnecessary. That is, a credible threat to pack the Senate may be enough to fix—or effectively end—the Senate. We have good reason to think this, because such threats have been effective before—twice—in accomplishing very similar reforms in the United Kingdom.
The Liberal Party won a landslide in the UK parliamentary elections of 1906, and was (more narrowly) returned to government twice in two successive elections in 1910 on a platform of a progressive budget, home rule for Ireland, and substantial reforms to the House of Lords. The Lords, dominated by Conservatives, had consistently obstructed progressive budgets and other reform measures after the passage of such measures by the House of Commons–as well they might, given that the Liberal government proposed to curtail their power and tax their lands. But by threatening to pack the Lords with enough new Liberal-leaning peers to command a majority, Prime Minister H.H. Asquith ultimately succeeded in strong-arming the Lords into passing the Parliament Act 1911. The Act did to the House of Lords what a moderate pro-democracy reformer in America today might like to see done to the U.S. Senate: it effectively removed the Lords’ power to refuse passage of money bills, and effectively converted their power to refuse passage of other bills to a power to delay such bills for a maximum of two years. (The Parliament Act 1949 reduced the Lords’ power of delay over non-money bills from two years to one—and was enacted using the power of the Commons under the Parliament Act 1911 to pass bills without the Lords’ consent.) The Lords and their allies in the Commons complained bitterly, but ultimately, Conservative peers were put to the choice between giving some of the powers of their House to the Commons forever or losing all of the powers of their House to the Liberals for the foreseeable future, and chose the former.
Asquith’s threat to pack the peerage had precedent too: it was exactly the strategy used by the Whig Prime Minister Charles Grey to expand the franchise and meliorate the shameful malapportionment of the House of Commons with the passage of the Great Reform Act of 1832. Again, the threat to pack the Lords was was enough: the Tories who followed the Duke of Wellington, having successfully blocked Reform Bills for years, capitulated once they learned that William IV was (reluctantly) willing to support Lord Grey’s request to appoint a slew of Whig peers.
What I propose is not “One Simple Trick to Save American Democracy.” I do not mean to suggest that this type of reform was easy in the UK, or that it will be easy in the United States. 18th-19th Century Whigs and 19th-20th Century Liberals had to build a popular movement committed to their reforms, then consistently win elections on the strength of that movement for several years, and ultimately see their democratically validated demands repeatedly rebuffed by anti-democratic institutions before the continued pressure to accede to those demands became irrepressible. In the Whigs’ case, that pressure included the mass violence of the Swing Riots and the Days of May: the closest Britain ever came to a violent popular revolution. The Liberals pushed through the Parliament Act 1911 without such violent uprisings, but with the crucial support of two factions that were structurally underrepresented in the electorate and deeply associated with the threat of such violence in the minds of the English Conservative establishment: Irish nationalists and organized labor.
I do not mean to issue a call to political violence, but I do mean to be clear that the mere availability of constitutional tools for democratic reform will never be sufficient to overcome constitutionally empowered anti-democratic institutions opposed to such reforms. Nor will asking politely and waiting patiently. There must be a credible threat of constitutional norm-breaking in order to use such tools effectively; and such a threat is only credible (and warranted) when supported by persistent, well-organized, and genuinely popular movements that in turn back up the threat of constitutional norm-breaking with the prospect of deep social dissolution if anti-democratic institutions do not accede to democratic demands. Ominously, anti-democratic elites must also be sufficiently sensitive to the risks of social dissolution that they will recognize when their resistance to democratic reform has become untenable. Deep constitutional traditions of royal deference to electoral results (informed by the violent origins and tenuous foundations of constitutional monarchy) in eras of global social transformation did the trick for William IV, Edward VII, and George V; it isn’t at all clear that our anti-democratic elites are sensitive to such considerations.
But the fact that democratic reform is hard is no excuse for not putting in the work to make it happen. Precedent for de-fanging the reactionary and anti-democratic “upper” house of a national legislature is readily available—and it has been proven to be both durable and, ultimately, extremely popular. There is no reason why the United States should be a century behind the United Kingdom in reforming its national legislature to align with democratic principles. Americans who take democracy seriously should be mobilizing to support a credible threat of packing the Senate, as a second-best alternative to amending the Constitution to remove its powers. They should be making plans to admit new states and divide existing states so as to assure passage of constitutional amendments reallocating the Senate’s powers to other institutions. And they should be explicitly including these plans in their agendas and platforms, and be prepared to organize and mobilize voters to support these plans consistently and strategically over a long period of time. And they should, ultimately, be prepared to forego the implementation of such plans only if those who benefit from the anti-democratic structure of the Senate act to relinquish those benefits.
I Choose, You Decide: Structural Tools for Supreme Court Legitimation
Executive Summary: The Supreme Court’s legitimacy is under threat. Efforts to either respond to the crisis of legitimacy or to salvage what legitimacy remains are focusing on reforms to the selection, appointment, and tenure of Justices. I propose an additional, complementary change, which does not require constitutional amendment. The selection of cases for the Court’s discretionary docket should be performed by a different group of Justices than those who hear and decide the cases on that docket. The proposal leverages the insight of the “I cut, you choose” procedure for ensuring fair division of heterogeneous resources–only here, it manifests as “I choose, you decide.” Further refinements of the proposal, for example to include reforms to the length of active tenure of Supreme Court Justices, are also considered.
Jefferson’s Taper at IPSC 2018 (Berkeley)
In researching my in-progress monograph on value pluralism in knowledge governance, I made a fascinating discovery about the history of ideas of American intellectual property law. That discovery is now the basis of an article-length project, which I am presenting today at the annual Intellectual Property Scholars Conference, hosted this year at UC Berkeley. The long title is “Jefferson’s Taper and Cicero’s Lumen: A Genealogy of Intellectual Property’s Distributive Ethos,” but I’ve taken to referring to it by the shorthand “Jefferson’s Taper.” Here’s the abstract:
This Article reports a new discovery concerning the intellectual genealogy of one of American intellectual property law’s most important texts. The text is Thomas Jefferson’s 1813 letter to Isaac McPherson regarding the absence of a natural right to property in inventions, metaphorically illustrated by a “taper” that spreads light from one person to another without diminishing the light at its source. I demonstrate that Thomas Jefferson directly copied this Parable of the Taper from a nearly identical parable in Cicero’s De Officiis, and I show how this borrowing situates Jefferson’s thoughts on intellectual property firmly within a natural law tradition that others have cited as inconsistent with Jefferson’s views. I further demonstrate how that natural law tradition rests on a classical, pre-Enlightenment notion of distributive justice in which distribution of resources is a matter of private beneficence guided by a principle of proportionality to the merit of the recipient. I then review the ways that notion differs from the modern, post-Enlightenment notion of distributive justice as a collective social obligation that proceeds from an initial assumption of human equality. Jefferson’s lifetime correlates with a historical pivot in the intellectual history of the West from the classical notion to the modern notion, and I argue that his invocation and interpretation of the Parable of the Taper reflect this mixing of traditions. Finally, I discuss the implications of both theories of distributive justice for the law and policy of knowledge governance—including but not limited to intellectual property law—and propose that the debate between classical and modern distributivists is more central to policy design than the familiar debate between utilitarians and Lockeans.
New Draft: Finding Dilution (An Application of Trademark as Promise)
I’ve just posted to SSRN a draft of a book chapter for a forthcoming volume on trademark law theory and reform edited by Graeme Dinwoodie and Mark Janis. My contribution, entitled “Finding Dilution,” reviews the history and theory of the quixotic theory of liability that everybody loves to hate. As Rebecca Tushnet has noted, in a post-Tam world dilution may not have much of a future, and my analysis in this draft may therefore be moot by the time this volume gets published. But if not, the exercise has given me an opportunity to extend the theoretical framework I established and defended in the Stanford Law Review a few years ago: Trademark as Promise.
In Marks, Morals, and Markets, I argued that a contractualist understanding of trademarks as a tool to facilitate the making and keeping of promises from producers to consumers offered a better descriptive–and more attractive normative–account of producer-consumer relations than the two theoretical frameworks most often applied to trademark law (welfarism and Lockean labor-desert theory). But I “intentionally avoided examining contractualist theory’s implications for trademark law’s regulation of producer-producer relationships” (p. 813), mostly for lack of space, though I conjectured that these implications might well differ from those of a Lockean account. In my new draft, I take on this previously avoided topic and argue that my conjecture was correct, and that the contractualist account of Trademark as Promise offers a justification for the seeming collapse of trademark dilution law into trademark infringement law (draft at 18):
This justification, in turn, seems to depend on a particular kind of consumer reliance—reliance not on stable meaning, which nobody in a free society is in a position to provide, but on performance of promises to deliver goods and services. It is interference with that promise—a promise that does not require the promisor to constrain the action of any third party against their will—that trademark law protects from outside interference. A contractualist trademark right, then, would be considerably narrower than even the infringement-based rights of today. To recast dilution law to conform to such a right would be to do away with dilution as a concept. A promise-based theory of dilution would enforce only those promises the promisor could reasonably perform without constraining the freedom of others to act, while constraining that freedom only to the extent necessary to allow individuals—and particularly consumers—to be able to determine whether a promise has in fact been performed.
As they say, read the whole thing. Comments welcome.
