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Balancing the Inequities in Applying Natural Property Rights to Rights in Real or Intellectual Property
Get PDFEric Claeys’s book, Natural Property Rights, introduces a Lockean-based theory of interest-based natural property rights. Central to Claeys’s theory are the concepts of justified interests and productive use. A justified interest, Claeys writes, exists when an individual demonstrates a stronger interest in a resource than anyone else in the community and uses the resource productively in a manner that is “intelligent, purposeful, value-creating, . . . sociable,” and leads to survival or flourishing. Claeys’s theory demonstrates “how a standard justification for property gets implemented in practice” and how a community’s “goods” build on the individual’s goods.
Claeys’s community “goods” focus, however, is antithetical to a Lockean private property ownership theory, which prioritizes an individual’s interest, except for the provisos—no waste and enough and as good. Although Claeys adequately addresses the differences between his and Locke’s theories, Claeys’s regard for both community and individual interests causes one to question whether his theory is truly Lockean-based.
Claeys’s book consists of four parts: Natural Law and Natural Rights (Part I), Property’s Foundations (Part II), Property Law (Part III), and Property in Law and Policy Generally (Part IV). This Article addresses Parts I and II and explores the defenses and justification for Claeys’s interest-based natural property rights theory under a Lockean framework.
This Article also addresses the defects in a Lockean natural rights theory, including Claeys’s application of that theory. Locke’s theory focuses on the natural rights of a specific community. Such a focus often disfavors people situated in out-of-power positions, for example, a land ownership dispute between indigenous people and recent immigrants that have organized themselves under laws that do not recognize the existing rights (natural or otherwise) of the indigenous people. Yet, both Claeys and Locke contend that natural rights emanate from a divine source (God) that intended humankind to use the things of nature for its survival and flourishing. But, when fundamentally different views exist concerning a resource’s ownership or productive use, rights conflicts arise. These conflicts often result in one community’s natural rights trampling another’s. This Article introduces a balancing interest test as a possible resolution to this conflict. The proposed balancing interest test seeks to maximize the common good in the most equitable way by finding an equitable mean between conflicting interests. Finally, this Article explores whether Claeys’s theory can justify natural property rights in intellectual property, specifically patents
Ad Coelum and the Design of Property Rights
Get PDFThis Article seizes on a specific doctrinal discussion in Eric Claeys’s Natural Property Rights to argue for the importance of understanding property doctrines in the context of a system of interconnecting rules and standards and not in isolation. The ad coelum doctrine provides that land ownership entails ownership of the suprajacent airspace as well as the underlying subsurface. As Claeys’s discussion highlights, scholars disagree about the significance of ad coelum both conceptually, as to what function the rule serves in defining and allocating property, and normatively. It is only by viewing ad coelum in the context of how it interacts with various other doctrines—as a cog in a complex machine that serves larger purposes—that a comprehensive conceptual and normative account of the doctrine emerges. Natural Property Rights presents such an account of ad coelum and many other doctrines by attending to both the details of property law’s rules and the body of property law as a system with a larger purpose. In this way, Claeys’s Natural Property Rights is praiseworthy for its approach
Opinion on the EU Commission\u27s proposals for broader protection in geographical indications law
No full textIn spring 2022, the EU Commission launched two proposals concerning the protection of Geographical Indications (GIs): COM(2022) 134 of 31 March 2022 amending current Regulation 2012/1151 on agricultural products and foodstuff (APFP) and COM(2022) 174 of 13 April 2022 on craft and industrial products (CIPP). The aims of the proposed regulations align in that they are meant to provide a harmonised and (relatively) simpler framework for registration as well as more resilient protection, in particular on the internet. Furthermore, both aim to bolster economic incentives to invest in production and creation or maintenance of quality jobs in rural and/or less developed regions, as well as—in the case of the agrifood regulation—to stimulate sustainable ways and methods of food production. Overall, those goals are welcome, as are most of the measures proposed to implement them. However, there are a number of problematic points which concern us, which we address in this article
Conclusions: a research agenda for the water law of the future
No full textManaging water has never been an easy task given the ever-changing nature of the resource and its uses. Innovation in regulatory structures has been a given in water law. In the near and distant future, water resources and their governing institutions will be further challenged by new changes, particularly those prompted by climate change. This book offers some regulatory solutions for the local, national, regional, and international levels to face these challenges and identifies the areas where water law scholars should work on to further strengthen our water regimes amidst changes
Introduction to A Research Agenda for Water Law
No full textThis book lays out a research agenda for the study, application, and development of water law in the coming decades. Each individual chapter reflects either existing challenges to water law that require new solutions, or else new challenges to water law requiring adaptation and imagination on the part of researchers, practitioners, activists, and governments. The chapter authors include leading figures in water law as well as rising younger voices, and they come from around the world. Together, these authors lay out a path for the future of the laws governing the fundamental molecule of life
A critical appraisal of the COVID-19 TRIPS waiver
No full textThis chapter offers a critical appraisal of an unprecedented proposal that India and South Africa submitted to the World Trade Organization (WTO) in October 2020, which called for a waiver of more than 30 provisions in the Agreement on Trade-Related Aspects of Intellectual Property Rights to help combat COVID-19. It begins by identifying the arguments for and against this waiver, including those questioning its necessity, expediency, and effectiveness. The chapter then explores the difficult decision on whether one should support the instrument’s ultimate adoption. Breaking down the decision into two sub-questions - one on text-based negotiations and the other on the waiver’s adoption - this analysis sheds light on why the WTO membership ended up embracing the Ministerial Decision on the TRIPS Agreement in lieu of the waiver
The Ever-Shifting Ground of Pretrial Detention Reform
Get PDFIn the past six decades, pretrial detention systems have undergone waves of reform. Despite these efforts, pretrial jail populations across the country continue to swell. The causes of such growth in jail populations are difficult to pinpoint, but some are more readily apparent: Fear over rising crime rates, judicial reluctance to release accused persons, and monetary burdens associated with release have all contributed to increased detention pretrial across criminal legal systems in the United States. This article examines various pretrial detention reform efforts and highlights the need for greater research in the area
The Intersection of NFTs and Structured Finance
Get PDFBlockchain technology, cryptocurrencies, stablecoins and non-fungible tokens (NFTs) continue to invade financial markets. Whether through partnerships between financial institutions and tech firms or through in-house initiatives at some of the nation’s largest banks, blockchain-based products, services, and transactional structures are a major point of interest. In a recent work by Professor Steven Schwarcz, the growing NFT market is analyzed using the traditional tools of structured finance. Creating a new conceptual model called non-cash-flow monetizations, Professor Schwarcz reveals the risks to investors and markets, if the tokenization of non-traditional and largely illiquid assets proliferates. Having identified the potential harms, he offers a package of regulatory solutions grounded in public law frameworks, which might mitigate, though not completely eliminate, these potential downsides. In this Essay, we review Schwarcz’s Article and highlight how its insights advance the understanding of novel blockchain-based transactions and their disruption of the existing financial landscape. Additionally, we provide an analysis of the private law dimension of non-cash flow monetizations—a perspective we believe is absent from much of the public discourse and relevant academic literature
Legal Clutter: How Concurring Opinions Create Unnecessary Confusion and Encourage Litigation
Get PDFGood judges are clear writers. And clear writers avoid legal clutter. Legal clutter occurs when judges publish multiple individually written opinions that are neither useful nor necessary. This essay argues that concurring opinions are the worst form of legal clutter. Unlike majority opinions, concurring opinions are legal asides, musings of sorts—often by a single judge—that add length and confusion to an opinion often without adding meaningful value. Concurring opinions do not change the outcome of a case. Unlike dissenting opinions, they do not claim disagreement with the ultimate decision. Instead, concurring opinions merely offer an idea or viewpoint that failed to garner support from the rest of the Court. They are cries for attention that are, usually, better left unwritten. Concurring opinions are legal clutter.This essay challenges judges—particularly Supreme Court Justices— to refrain from subjecting lawyers and law students to legal clutter. Court opinions are already too long. They can be complex. Distracting readers from the actual holding of a case causes unnecessary confusion, even for other judges. Two recent examples, Justice Kavanaugh’s individual concurrence in NCAA v. Alston and Justice Thomas’s individual concurrence in Dobbs v. Jackson Women’s Health Organization , illustrate the problem. Journalists and lawyers, eager to see systematic change at the NCAA, have latched on to one sentence in Justice Kavanaugh’s Alston concurrence—repeating lines that are neither the Court’s holding nor controlling. Similarly, Justice Thomas’s solo concurrence in Dobbs suggesting the entire line of substantive due process cases should be overturned, left some wondering if overturning Roe was just the beginning of a stare decisis regression. Worse still, both Justice Kavanaugh and Thomas seemingly invite new litigation to ensure that their individual viewpoints ultimately become the law. This is the danger of concurring opinions. Below the surface, many concurring opinions are nothing more than a latent form of judicial activism. On the surface they are mere legal clutter
Texas\u27s Operation Lone Star : The Supremacy Clause and Dual Federalism in Light of Arizona v. United States
Get PDFThe Supremacy Clause of Article Six of the United States Constitution was enacted to remedy the failures of the Articles of Confederation. Initially, the states enjoyed near-boundless state sovereignty in nearly all aspects of the first federalist government. However, in practice, the necessity of federal supremacy for conducting the business of governing obligated the states to prioritize national interests above the states’ sovereignty. To do so required revision of the Articles of Confederation. This drafting culminated in the contentious ratification of the Constitution in 1788, including the Supremacy Clause and the Tenth Amendment. That said, ratifying the Supremacy Clause and establishing the demarcations of state sovereignty as provided by the Tenth Amendment was antagonistic, while state and federal laws each explored the margins of the other’s authority. The first challenge commenced with McCulloch v. Maryland and the Necessary and Proper Clause, which established the implicit powers necessary to exercise those powers enumerated in the Constitution. Commencing with the Naturalization Act of 1790, immigration became a matter for the federal government to regulate. Since the Naturalization Act’s enactment, the U.S. Supreme Court has consistently held that the federal government has broad and exclusive authority in immigration