The treatment of customary practices has been widely debated in many areas of the law, but there has been virtually no discussion of how custom is and should be treated in the context of intellectual property (“IP”). Nevertheless, customary practices have a profound impact on both de facto and de jure IP law. The unarticulated incorporation of custom threatens to swallow up IP law, and replace it with industry-led IP regimes that give the public and other creators more limited rights to access and use intellectual property than were envisioned by the Constitution and Congress. This article presents a critique of the current system of unreflected and often wholesale incorporation of custom in IP law. The article then provides a theoretical framework exploring the limited ways customary practices should be considered in IP law. The analysis provides additional support to those who have criticized the incorporation of custom in tort, contract, and property law, while at the same time providing guidelines that could revolutionize the treatment of custom in IP.
Jurisdictional Exceptionalism
Challenges to federal court subject matter jurisdiction enjoy exceptional treatment: They resist procedural regulation, they are immune to waiver, and they may be raised at any time during a case, even by the party who invoked the federal court’s jurisdiction in the first instance. Such treatment is said to arise from the limited nature of federal judicial power. Nevertheless, the current ability to raise jurisdictional challenges—however and whenever—proves to be a comparatively recent development. During the early Republic, the federal courts were governed by a highly formalized common-law pleading regime that constricted the time and manner of jurisdictional objections, that embraced a robust notion of waiver, and that created disincentives to challenging jurisdiction. The result was that federal courts heard cases in which the pleadings may have suggested subject matter jurisdiction but in which jurisdiction was lacking in fact. Mid-nineteenth century developments associated with code pleading brought an increased focus on jurisdictional facts, and the Reconstruction Congress provided greater opportunities for jurisdictional challenges than those available at common law. But it was not until the mid-1930’s that the Supreme Court fully articulated the modern notion that jurisdictional defects could be raised in any manner and at any time—a notion that was soon embodied in the Federal Rules of Civil Procedure. This underexplored history of pleading and jurisdiction—particularly that of the early Republic—suggests understandings of the federal courts’ limited jurisdiction that may be in tension with current views. It may also offer possibilities for (as well as limits on) procedural reform aimed at restricting the currently open-ended ability to raise jurisdictional challenges in federal court.
Democratic Failure and Emergencies: Myth or Reality?
Academics have long debated the ability of a democratic government to respond to emergencies. This historical debate has assumed new significance as scholars attempt to respond to the challenges presented by the twenty-first century and the “War on Terror.” Commentators have reached different conclusions regarding how a government should operate during times of emergency, but each commentator’s ultimate conclusion must first answer an underlying, prior question: What exactly happens to democracy during times of emergency?
Traditional emergency-politics theorists explain democratic government during emergency with the “democratic failure theory.” But revisionists, led by Professors Eric Posner and Adrian Vermeule, recently have attacked the “democratic failure” theory, asserting that nothing relevant happens during an emergency to inhibit the ability of a democratic government to function. Certainly, they concede, minorities might “lose” during emergencies, but they do in normal times as well.
This Note, while remaining ambivalent about a broad application of the traditionalists’ democratic failure theory, offers one counterpoint to Posner and Vermeule and their revisionist claim. Introducing primary source research and re-introducing forgotten or overlooked academic arguments, this Note presents a case study of the Japanese internment during World War II. The internment of individuals of Japanese descent was not merely the result, as revisionists argue, of a continuation of the peacetime baseline or of rational concerns for national security. Without contesting that those factors were relevant in the internment decisions, this Note argues that individuals of Japanese descent were interned primarily because an anti-Japanese West-Coast coalition successfully exploited the democratic failure caused by the emergency of World War II. The coalition had long sought these exclusionary measures, but before World War II, those measures lacked mainstream political appeal. World War II changed the political playing field, and the anti-Japanese coalition on the West Coast knew it. Capitalizing on the World War II democratic failure, the coalition finally harnessed the political capital necessary to achieve its exclusionary goal, if only temporarily.