Monthly Archives: February, 2014

Harry Surden, ‘Technological Cost as Law in Intellectual Property’

Introduction: … This Article argues that shifts in the scope of IP laws are often driven by changes in technological feasibility and not by changes in positive law. To understand this argument, consider how activities important to IP law can be implicitly constrained by technological limitations and how this constraint can influence positive IP law. […]

Yafit Lev-Aretz, ‘Copyright Lawmaking and Public Choice: From Legislative Battles to Private Ordering’

Introduction: … The ability to organize a large crowd with diffuse interests into effective political action — as seen in the SOPA/PIPA protest — challenges a broad array of copyright scholars using public choice theory to demonstrate the disproportionate influence copyright holders, especially the entertainment industries, have had on copyright lawmaking. Based on the assumption […]

‘Copyright as a Chill on Innovation’

“Michael A Carrier, Copyright and Innovation: The Untold Story, 2012 Wisconsin Law Review 891 (2012). Sony’s Betamax was the first reprography technology to attract a copyright infringement lawsuit. Little did copyright experts back then realize how much of a harbinger of the future the Betamax would turn out to be. Countless technologies since then designed, […]

Val Ricks, ‘Consideration and the Formation Defenses’

Introduction: The common law defenses to contract formation — duress, misrepresentation or fraud, mistake, and unconscionability — are best justified historically, doctrinally, logically, and from the standpoint of policy, as a response to the plaintiff’s showing of consideration. The next-best alternative, assent, justifies too little. This thesis is proved in two parts. Part I addresses […]

Vaclav Janecek, ‘Exemplary Damages: A Genuine Concept?’

Abstract: In this article I examine the concept of exemplary damages. Unlike many other studies this paper omits policy reasons and focuses primarily on the very concept of exemplary damages. My aim is thus not to argue for or against this remedy but rather to show whether or not it is a coherent and genuine […]

Joshua Schroeder, ‘Bringing America Back to the Future: Reclaiming a Principle of Honesty in Property and IP Law’

Abstract: Seemingly undaunted by global market crisis, intangible assets have continued their course toward maximization as an absolute form of property. In fact, companies worldwide have been criticized for not claiming hundreds of billions of dollars of intangible value including their marketplace goodwill. Overvalued intangible property can be a negative effect on pension funds, retirement […]

Margaret Radin, ‘What Boilerplate Said: A Response to Omri Ben-Shahar (and a Diagnosis)’

Abstract: This essay responds to Omri Ben-Shahar’s review of my book, Boilerplate: The Fine Print, Vanishing Rights, and the Rule of Law (Princeton 2013). Ben-Shahar’s review unfortunately does not convey the nature of this book to possible readers. His preconceptions apparently caused him to believe that some strong version of “autonomy” was the focus of […]

Mark Geistfeld, ‘Tort Law in the Age of Statutes’

Abstract: The common law of torts is widely considered to be in conflict with the modern regulatory state. Tort law interacts with regulations and their enabling statutes in different ways that are fully addressed by the doctrines of negligence per se, the regulatory compliance defense, and statutory preemption. According to a substantial body of scholarship, […]

James Stern, ‘Property, Exclusivity, Jurisdiction’

Introduction: … It is time conflict-of-laws scholarship became equivalently sophisticated in its contemplation of property, and as this Article will argue, a fuller appreciation of property’s structure and function offers compelling reasons to adhere to the situs rule and the principles it instantiates. Drawing on insights from the property theory literature and offering further refinements […]

European Parliament adopts proposal for a Common European Sales Law

“By 416 votes to 159, with about 65 abstentions, the European Parliament today adopted a legislative resolution on an optional Common European Sales Law (CESL). This is good news for European businesses and consumers who want to sell or buy online across borders. It is to be hoped that the Council will eventually give a […]