One Man, One Vote in Texas

New litigation in Texas threatens to undermine a basic principle of our constitutional design: that our elected officials represent all of us. The President of the United States represents all of us—even if we didn’t vote for him; even if we didn’t vote at all, even if we were not yet born when he was…

Fast Track for the Trans Pacific Partnership Accords with Democracy

The left and even some Republicans have argued that the procedures for agreeing to the Trans Pacific Partnership are undemocratic.…

Fragility of the Republic

In a curious way, Julius Caesar isn’t the most important figure in The Death of Caesar: The Story of History’s…

From the Blog

Mike Rappaport
University of San Diego School of Law

The Statutory Limitation on Recess Appointments

I know that interest in Recess Appointments has waned since the Supreme Court decided the…

What Would Happen if the Dormant Commerce Clause Were Overruled?

With the debate in the Wynn case over the Dormant Commerce Clause, Michael Greve has…

Amending the Seventh Amendment

I have been exploring the original meaning of the Seventh Amendment right to a civil…

John O. McGinnis
Northwestern University School of Law

Fast Track for the Trans Pacific Partnership Accords with Democracy

The left and even some Republicans have argued that the procedures for agreeing to the…

A Culture of Authenticity versus a Jurisprudence of Principle

Our literary, journalistic, and thespian culture is, to put it mildly, not hospitable to conservatism…

For-Profit and Non-profit Organizations Should Enjoy the Same Civic Rights

In Burwell v. Hobby Lobby, Justice Ruth Bader Ginsburg drew a sharp contrast between for-profit…

Michael S. Greve
George Mason School of Law

Federalism, Upside-Down and Executive

The Upside-Down Constitution isn’t for the faint of heart, or for people who actually work…

A Wynne For “Judicial Fraud”

Huzzah: the Supreme Court has finally decided Comptroller v. Wynne, the second-oldest case on its docket.…

Give Me Guidance

This past week, the Food and Drug Administration formally withdrew 47 draft guidances. (I have…

Liberty Law Forum

Protect ideas and brainstorming

Why Intellectual Property Rights? A Lockean Justification

Today, the dominant justification for intellectual property (IP) rights is a broadly framed utilitarian theory.[1] But this was not always the case, and nor should it be. Both utilitarian and labor-desert theories offer robust normative justifications for IP rights, and historically they were both called upon by courts and commentators.[2] Unfortunately, widespread misunderstanding about labor-desert theories…

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Responses

Theory and Empirics: Where Do Locke and Mossoff Leave Us

In his Liberty Forum essay, “Why Intellectual Property Rights? A Lockean Justification,” Professor Adam Mossoff argues that Lockean property theory extends to intellectual property and provides justification for related laws.[1] Like Professor Mossoff, I do not see a sharp dividing line between property and intellectual property. Indeed, as I have discussed elsewhere,[2] there are significant similarities…

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As Newton Meets the A-Bomb, So Locke Meets Copyright

How does Locke’s theory of property apply to copyrights?[1] It applies in the same way that Newtonian physics applies to relativistic or quantum-scale events. It applies badly, in other words, giving uncertain and even misleading results. The essay under review, alas, offers ample proof of that effect. We would do better to reserve Locke’s property…

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Why “If Value, Then Rights” Is Untenable

Adam Mossoff says it is one of Lockean property theory’s “strengths” that “it recognizes that IP rights are fundamentally the same as all property rights in all types of assets.” I am not so sure that counts as a strength. Nor do I think Locke’s theory claims to recognize this. Indeed, understanding why Locke’s argument…

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