Intellectual Property Law

While I?ll always be a legal realist

By wu

I reread today Felix Cohen’s 1935 classic and became convinced that Columbia ought rededicate itself to the cause of functionalism in the legal system.  I was also reminded of the reason law reviews articles today are rarely read: it’s because they don’t read like this (from the introduction).

Some fifty years ago a great German jurist had a curious dream.
He dreamed that he died and was taken to a special heaven reserved for
the theoreticians of the law. In this heaven one met, face to face, the
many concepts of jurisprudence in their absolute purity, freed from
all entangling alliances with human life. Here were the disembodied
spirits of good faith and bad faith, property, possession, laches, and
rights in rem. Here were all the logical instruments needed to manip-
ulate and transform these legal concepts and thus to create and to solve
the most beautiful of legal problems. Here one found a dialectic-
hydraulic-interpretation press, which could press an indefinite number
of meanings out of any text or statute, an apparatus for constructing
fictions, and a hair-splitting machine that could divide a single hair into
999,999 equal parts and, when operated by the most expert jurists,
could split each of these parts again into 999,999 equal parts. The
boundless opportunities of this heaven of legal concepts were open to
all properly qualified jurists, provided only they drank the Lethean
draught which induced forgetfulness of terrestrial human affairs. But
for the most accomplished jurists the Lethean draught was entirely
superfluous. They had nothing to forget.

Full post as published by What’s New With Wu on May 12, 2008 (boomark / email).