Within intellectual property, Darcy v. Allen and the Statute of Monopolies are frequently, almost reflexively, invoked as establishing a baseline norm of economic freedom from which governments depart when they grant exclusive rights to deal in any trade or article of commerce. Against this free-market backdrop, all such grants are suspect, and only those that are justified by reference to their originality or utility (copyrights and patents) are valid. Rejecting the dominant view of Darcy and the Statute of Monopolies, this Article provides a more detailed political and legislative history of both the compromise leading to Darcy and the adoption of the Statute of Monopolies than any to date, and consequently demonstrates that their true importance lies in their political, not economic, content. This reinterpretation suggests that both events are best viewed through the lens of political accountability, a departure from the prevailing understanding of these events, both in and out of intellectual property. The Article concludes by considering the ramifications that this new understanding has for modern debates about intellectual property. Both events suggest that politics and coalition, not litigation, is the most promising brake on the seemingly ever-expanding scope of intellectual property laws. Further, the mercantilist experience with market controls suggests that targeted measures like compulsory licenses are more likely to perpetuate rather than restrict the power of special interests who hold large amounts of intellectual property.
Issue 6
Choice of Law, the Constitution, and Lochner
The rise and fall of constitutional limits on state choice of law coincides almost perfectly with the so-called Lochner era in Supreme Court history and the connection is by no means accidental. This Note reveals that nearly half of all of the decisions in which the Court used “liberty of contract” reasoning to invalidate state or federal action—including the very first case to do so—dealt not with fundamental economic rights but with choice of law issues. After explaining how the Court’s choice of law doctrines worked, this Note concludes that for the most part they are not susceptible to the traditional criticisms of Lochner. This Note also concludes, however, that although Lochner may not teach us about the choice of law cases, the choice of law cases may help us better understand Lochner. Notions of consent-based political obligation evident in the choice of law cases can reconcile competing interpretations of the Lochner Court’s more controversial substantive due process decisions, while the embrace of legal realism that led the Court in the 1930s to discard its choice of law doctrines suggests that nonpolitical explanations for the abandonment of “Lochnerism” have been underappreciated in accounts of the New Deal Era Constitutional revolution. Choice of law theorists and legal historians alike would do well to revisit the complexities of the Supreme Court’s now-forgotten attempt to address the constitutional limits on the reach of state laws.
Destabilizing Discourses: Blocking and Exploiting a New Discourse at Work in Gonzales v. Carhart
The purpose of this Note is to identify and analyze the interrelated discourses at work in Gonzales v. Carhart, focusing on the woman-protective discourse, in order to reveal the discourse’s origins, expose its manipulations of Casey’s undue burden test, and identify its strengths and weaknesses. Part I of this Note defines and describes the discourses at work in Gonzales, focusing on the cumulative work these discourses perform together and noting a meaningful series of shifts over time. Part II analyzes the woman-protective discourse in a variety of ways in order to draw out its assumptions, expose its historical predecessors, and outline exactly how it has manipulated the undue burden test. Part III examines ways in which this discourse can be resisted, using more traditional feminist methods, as well as ways in which it can be exploited to destabilize the undue burden test and promote women’s autonomy in non-abortion contexts.