Academic

Reis on Intellectual Property in the Supreme Court

By Lawrence Solum

Robert I. Reis (University at Buffalo School of Law (SUNY)) has posted Checks, Balance and Judicial Wizardry: Constitutional Delegation and Congressional Legislation (Akron Intellectual Property Journal, Forthcoming) on SSRN. Here is the abstract:

The Supreme Court has decided a number of cases over the past decade affecting Patents and Copyrights. These are preemptive statutory rights, the creation of which has historically been recognized as exclusively delegated to Congress under in Article I, Section eight, cl.8. The apparent spate of recent cases decided by the court is the catalyst for embarking on taking a renewed and expanded look at how these cases relate to issues and resolutions of the past two centuries. As a starting point, the question is whether these cases represent an atypical level of activity on the part of the court and how is that measure to be determined? Does this level of activity reflect the court assuming a distinct role in separation of powers and checks and balances either by their role in (1) reviewing limitations on the power of Congress to enact the legislation in question (Checks) or (2) by accepting a deferential role relative to the delegated powers of Congress, but performing their constitutional function of facilitating purpose through interpretation, implementation and application to specific cases and controversies statutory language tempered by constitutional purpose (Balance). These and related issues provide an interesting change in perspective if followed over time avoiding the micro, viewing the macro and appreciating the "wizardry" of the court through the past two centuries. Despite, the belief that things are "different" in kind or meaning, one observes, for the most part, that the more things change, the more they remain true to the constants that warrant the creation of these rights with purposeful balance of public benefit and private reward. Despite the passage of almost two centuries, and an occasional blip, digression, or momentary paradigm shift, it can be observed through the recitation of the same, or similar, language and articulation of balance and purpose, that with rare exception, the court has accommodated changes in technology, normative behavior and the role of "intellectual property" in a global order.

Full post as published by Legal Theory Blog on March 23, 2011 (boomark / email).