Public agencies in the United States have long contracted with private firms for a wide range of public goods and services. Together, public procurement contracts account for more than ten percent of the entire U.S. economy. Yet examples of breathtaking cost overruns, delays, and substandard contractor performance are ubiquitous, particularly in the high-stakes realm of large-scale public projects. Despite the magnitude of this contractor-performance problem, it remains largely unexplored by legal scholars. This Article argues that the contractor-performance problem is at its core a contract-remedies problem: Governments lack an effective, credible remedy for poor contractor performance. Although a number of scholars have assumed that the remedies used by private buyers can be similarly utilized by government buyers, that is not the case. Because of the unique political and institutional context in which the government operates, neither traditional contract damages nor the alternative, reputation-based remedies often utilized by private firms translate to government contracts. This Article proposes an alternative remedial approach that can be utilized effectively by government buyers. By horizontally dividing contracts between multiple, competing firms, a government can foster ongoing competition to incentivize peak performance and, when necessary, obtain cost-effective substitute performance by terminating one contract and exercising a call option for the same scope of work in a second contract. Through thoughtful design, accounting for public and private incentives and the nature of the good or service being procured, nearly any public procurement contract can be divided—and remedied—in this manner.
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A Theory of Copyright Authorship
The U.S. Constitution gives Congress the power to grant rights to “Authors” for their “Writings.” Despite the centrality of these terms to copyright jurisprudence, neither the courts nor scholars have provided coherent theories about what makes a person an author or what makes a thing a writing. This Article articulates and defends a theory of copyrightable authorship. It argues that authorship involves the intentional creation of mental effects in an audience. A writing, then, is any fixed medium capable of producing mental effects. According to this theory, copyright attaches to the original, fixed, and minimally creative form or manner in which an author creates mental effects.
After setting out the theory, this Article applies it to a series of current copyright disputes. My authorship theory both expands and contracts the scope of potentially copyrightable works. Some media that have previously been excluded from copyright law, such as gardens, cuisine, and tactile works, now fall within the constitutional grant of rights. By contrast, aspects of copyrightable works, including photographs, taxonomies, and computer programs, may not constitute copyrightable authorship. This theory resolves a number of current and recent copyright cases, and it offers a new approach to the emerging challenges associated with artificial intelligence, the Internet of things, and, ultimately, the impending revision of the Copyright Act.
Property’s Ceiling: State Courts and the Expansion of Takings Clause Property
The Federal Constitution and nearly all state constitutions include takings clauses providing that private property shall not be taken for public use without just compensation. To the extent that scholars have considered the role of state courts with regard to these takings clauses, they have focused around constitutional limits on judicial restrictions of what constitutes property. Little attention has been paid, however, to how state courts can expand the definition of private property—and the problems and possibilities associated with that capability.
Through an original case study derived from unexamined historical sources, this Article explores the complex questions raised by constitutional property creation. It tells the story of a series of nineteenth- and twentieth-century cases on street grading, in which property owners sought relief when municipal officials vertically shifted streets—sometimes in excess of a hundred feet—to improve transportation. Though these regrades often loomed over people’s homes or left them stranded on inaccessible cliffs, government officials contended that because the regrades did not physically take any property, abutting owners could not bring takings claims. In response, state courts created a novel “right of access” to land and treated this right as constitutional property confiscated by the regrades, an innovation which entitled affected owners to compensation for the serious damages their land suffered.
As this history demonstrates, state courts have played an important role in takings law by recognizing new forms of constitutional property. By neglecting constitutional property innovation, scholars who argue that legislatures should be responsible for changes in property rules have missed a significant piece of the puzzle. Consequently, the history of court-made constitutional property rights carries implications for institutional choice analyses in property law. While there may be good reasons to prefer that legislatures allocate and define novel property interests as a general matter, courts have been overlooked as sites where constitutional property rights are created and debated in response to perceived political failures.