A Flying Leap at Vitiating the First Amendment

  Let us, for a moment, imagine someone who breaches the no-fly zone over the U.S. Capitol, calling forth bomb squads, triggering investigations at the FBI and NORAD, to protest perceived violations of the Second Amendment. Could the editorial pages of Washington find a limb high enough from which to hang him? Probably not. But if a…

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 once again criticized originalists for…

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 and religious organizations.  Whereas for-profits…

From the Blog

Mike Rappaport
University of San Diego School of Law

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…

Reasonable Regulation of the Right to a Jury Trial

I have been blogging about the original meaning of the Seventh Amendment.  Here I want…

John O. McGinnis
Northwestern University School of Law

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…

Originalists Need a Distinctive Theory of Precedent

In Comptroller v. Wynne, the Supreme Court this week invalidated a Maryland tax on the…

Michael S. Greve
George Mason School of Law

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…

Our Postmodern Bill of Rights

Last week, John McGinnis had a characteristically insightful post on Our Two Supreme Courts. One…

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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