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.
Volume 91
Specialize the Judge, Not the Court: A Lesson from the German Constitutional Court
The federal courts of appeals are in the midst of a crisis. The exploding volume of cases in those courts and the increasing complexity of the law present a real threat to the quality of appellate justice. Borrowing Adam Smith’s basic insight about the division of labor, many commentators have argued that the federal appellate courts might manage this crisis through greater specialization. The particular mode of specialization that has come into favor is the establishment of appellate courts with limited and exclusive jurisdiction over a set of subject matters. An example of such a court is the Court of Appeals for the Federal Circuit, and the apparent success of this court in the rationalization and harmonization of patent law has engendered proposals for many other specialized courts of appeals.
However, there are a host of problems with relying on such “specialized courts,” including judicial “tunnel vision,” the lack of cross-pollination of legal ideas, judicial capture by special interests, and excessive judicial policymaking. Commentators often defend their proposals for more specialized courts by pointing to the success that some European countries have had with highly specialized appellate judiciaries. But the apparent success of the European experience with specialized courts may be peculiar to the civil law philosophy of judging; borrowing a distinctly civil law solution for the American common law landscape may not be successful.
This Note proposes a different mode of specialization: staffing cases with a mix of expert and non-expert judges. The German Constitutional Court has used a similar system for many years. Since this solution is being borrowed from a constitutional court, which is far more like an American court than a civil law court, problems of translation are reduced. The proposal balances our desire for generalist judges with the need for judicial expertise as law grows increasingly complex. It helps solve the problem of exploding caseloads by allowing the federal appellate courts to take on more judges without sacrificing intra-circuit coherence of federal law. It achieves the goal of expertise by leveraging the differing abilities and interests of appeals court judges. While doing all this, the proposal also avoids many of the problems with the use of specialized courts of limited, exclusive jurisdiction.
A Normative Theory of Business Bankruptcy
It is widely agreed that capital cost reduction should be among the goals that a business bankruptcy law should pursue. This Essay argues that capital cost reduction should be the only goal, and that a bankruptcy system seriously committed to this goal would be both smaller and less centralized than the current U.S. Bankruptcy Code. In particular, a bankruptcy law that sought to reduce the cost of debt capital to firms would (a) require the trustee or debtor in possession to maximize the value of the insolvent firm rather than the payoffs of general creditors; (b) permit preferences (but continue to bar fraudulent conveyances); (c) permit suppliers and customers to contract for the right to cease dealing with a firm that has become insolvent; (d) not subsidize the use of expert professionals by junior creditors, but sometimes subsidize expert use by seniors; and (e) permit parties in the lending agreement to induce the debtor to use the bankruptcy procedure, either Chapter 7 or Chapter 11, that turns out to be optimal in the state of the world in which insolvency occurred.