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This paper argues that the revolution in intellectual property rights is not forward-looking, but backward looking, and that it is not consonant with the purposes of the…
This paper argues that the revolution in intellectual property rights is not forward-looking, but backward looking, and that it is not consonant with the purposes of the patent and copyright clause. It is animated by the theory of common law copyright, which deliberately reconceptualizes social relations in order to recast them as property, and which has been with us for centuries. This paper investigates the “mythology of common law copyright,” showing how this reconceptualization has worked both historically and in the present day to push the law in a direction that is ostensibly author-centered, but is actually focused on the rights of intermediaries.
In this article Professor Perry argues that Plessy v. Ferguson and the de jure segregation it heralded has overdetermined the discourse on Jim Crow. She demonstrates…
In this article Professor Perry argues that Plessy v. Ferguson and the de jure segregation it heralded has overdetermined the discourse on Jim Crow. She demonstrates through a historical analysis of activist movements, popular literature, and case law that private law, specifically property and contract, were significant aspects of Jim Crow law and culture. The failure to understand the significance of private law has limited the breadth of juridical analyses of how to respond to racial divisions and injustices. Perry therefore contends that a paradigmatic shift is necessary in scholarly analyses of the Jim Crow era, to include private law, and moreover that this shift will enrich our understandings of both historic and current inequalities.
Property is considered paramount to one’s existence, as a natural, absolute and inalienable right. Occupancy is required for man to secure what his thoughts have already made his. Property is realized in use but the right of occupancy and the status of res nullius are not established by the absence of use only, but in addition there must be also the absence of will of original owners. Arguing that appropriation precedes production dismisses the assertion that property is the fruit of labour. In contrast to the followers of the “state of nature” point of view, it is argued that common property is not natural and as such it is only transitory. Private property is at the root of man’s universality because it is common to all and individuals recognize each other only as owners. To base the origin of property in a social contract is erroneous because any contract must be based on the mutual recognition of parties involved who are already property owners. It is necessary that everybody have property not only in his or her persons but also to provide for subsistence. This would be regarded by natural law as just. Justice does not require the equality of property. Perpetual inequalities in property rights are not natural but the result of man‐made institutions which would not in themselves be right and would not have the obligatory power in virtue of their rightness. As such they would not be morally binding. Society that systematically consigns whole classes to conditions of poverty undermines the rationality of the ethical order and as such heads towards self‐destruction. Today, people are generally convinced that a person’s happiness depends on the satisfaction of that person’s actual desires. Property in things and enjoyment of one’s possessions, is often perceived as prerequisites for happiness. Individual happiness as an outcome derived from the distribution of property rights should be demoted from its status as the final good in preference to freedom.
Historians have long understood that transforming people into property was the defining characteristic of Atlantic World slavery. This chapter examines litigation in…
Historians have long understood that transforming people into property was the defining characteristic of Atlantic World slavery. This chapter examines litigation in British colonial Vice Admiralty Courts in order to show how English legal categories and procedures facilitated this process of dehumanization. In colonies where people were classified as chattel property, litigants transformed local Vice Admiralty Courts into slave courts by analogizing human beings to ships and cargo. Doing so made sound economic sense from their perspective; it gave colonists instant access to an early modern English legal system that was centered on procedures and categories. But for people of African descent, it had decidedly negative consequences. Indeed, when colonists treated slaves as property, they helped to create a world in which Africans were not just like things, they were things. Through the very act of categorization, they rendered factual what had been a mere supposition: that Africans were less than human.
I begin with a dispute over a fox hunt, by which to understand the law of tangible property, then develop that metaphor for the major types of intellectual property. I…
I begin with a dispute over a fox hunt, by which to understand the law of tangible property, then develop that metaphor for the major types of intellectual property. I start with domestic U.S. patent law for the sake of concreteness, and generalize to other jurisdictions and types of intellectual property. In the latter parts of the paper I discuss the international implications of intellectual property, including especially the effects of information spillovers. The last part of the paper describes the hazards in analogizing “trade” in intellectual property rights to trade in goods, and particularly in interpreting international patent data. These hazards motivate the search for a structural model specially adapted to the purpose of valuing international intellectual property rights and rules. The goal is to give economists a simple and integrated framework for analyzing intellectual property across time, jurisdiction and regime type, with an eye towards eventually developing other incentive systems that have the advantages of property (such as decentralized decision-making), but fewer of the disadvantages.
The purpose of this paper is to explore the status of economic analysis of laws relating to property and contracts during ancient times in India.
Modern research tools are used to present Kautilya's ideas on contracts and property.
Kautilya implicitly proposes a labor theory of property. He devised economic laws related to contracts, property and tort, which promoted economic efficiency and encouraged ethical behavior.
Current approaches ignore the role of ethics in designing legal rules for promoting economic efficiency.
Unless laws are designed to encourage and promote ethical conduct optimum economic efficiency is unlikely to be achieved.
Kautilya advocated a contract theory (between the ruler and the ruled), which was utilitarian in nature, however, unlike Bentham, he still appealed to the moral motivation.
The argument is presented that, is contrast to expectations, the Civil Asset Forfeiture Reform Act (CAFRA) of 2000 will not be responsible for significant change in the…
The argument is presented that, is contrast to expectations, the Civil Asset Forfeiture Reform Act (CAFRA) of 2000 will not be responsible for significant change in the practice of civil asset forfeiture, that the Act is a sheep in wolf's clothing. While it has ushered in some important procedural changes, CAFRA does not address several of what critics perceive to be the most significant problems associated with civil asset forfeiture, among them are a questionable standard of proof, equitable sharing, and the so‐called “taint doctrine.” Thus, it is likely that civil asset forfeiture will continue to be a valuable law enforcement tool in the war on drugs.
This paper aims to consider a more visual approach to property law teaching practices. This will be achieved by exploring the existence of “visual learners” as a student body, evaluating the use of more visual teaching techniques in academic practice, recognising the historic dominance of text in legal education, and examining the potential for heightening visual teaching practices in the teaching of property law.
The paper reviews and analyses some of the available literature on visual pedagogy, and visual approaches to legal education, but also introduces an amount of academic practitioner analysis.
This paper evidences that, rather than focusing on the categorisation of “visual learner”, the modern academic practitioner should use the customary use of more visual stimuli, consequently becoming a more “visual teacher”. This paper demonstrates that these practices, if performed effectively, can impact upon the information literacy of the whole student body. It also proffers a number of suggestions as to how this could be achieved within property law teaching practices.
The paper will provide support for early-career academic practitioners, who are entering a teaching profession in a period of accelerated and continual change, by presenting an overview of pedagogic practices in the area. It will also provide a stimulus for those currently teaching on property law modules and support their transition to a more visual form of teaching practice.
This paper provides a comprehensive overview of visual pedagogy in legal education, and specifically within that of property law, which has not been conducted elsewhere.