FedSoc Blog

Irina Manta on the Constitutional Flaws of Intellectual Property Prosecutions


by Publius
Posted February 19, 2014, 4:20 PM

Will Baude, assistant professor at the University of Chicago Law School, comments at the Volokh Conspiracy:

A while ago, over at our old site, I posted about a technical but important question at the intersection of constitutional law and criminal procedure: when some fact is necessary in order for a federal criminal statute to be constitutional (sometimes called, a “jurisdictional fact”), does the government have to prove it, and to whom?

A new article by my friend Irina Manta provides an excellent example of how this can come up. Manta argues that current criminal prosecutions for copyright and trademark violations fall short of the constitutional standard. From the abstract:

Our current methods of imposing criminal convictions on defendants for copyright and trademark infringement are constitutionally defective. Previous work has argued that due process under the Sixth Amendment requires prosecutors to prove every element of a crime beyond a reasonable doubt, including the jurisdictional element. Applying this theory to criminal trademark counterfeiting results in the conclusion that prosecutors should have to demonstrate that an infringing mark needs to have traveled in or affected interstate commerce, which is currently not mandated. Parallel to this construction of the Commerce Clause, criminal prosecutors would also have to prove that Congress has the power to reach individual copyright infringers under the Intellectual Property Clause. This presents little difficulty under the traditional understanding of the clause as prosecutors would only need to show that convicting a defendant serves to secure the rights of authors. Some contemporary scholars have argued, however, that the text of the Intellectual Property Clause must be understood to mean that Congress can only enact copyright legislation if it serves to promote progress. If this notion is correct and is combined with this article’s theory of the requirements of the Sixth Amendment, prosecutors would have to prove that individual convictions will serve to promote progress before courts can impose sentences in given cases. While this could raise costs and has the potential to reduce the number of cases brought, prosecutors may have little choice but to introduce expert testimony to demonstrate an effect on progress, similar to the use of expert evidence in antitrust litigation and related contexts.

In January 2014, Manta delivered a talk on intellectual property at the Federalist Society's 16th Annual Faculty Conference. She participated in a a panel discussion on the question “Is IP Property or Government-Conferred Monopoly?” You can read about the event and watch a video of it here.

FedSoc Faculty Conference Hosts Panel on “Is IP Property or Government-Conferred Monopoly?”


by Publius
Posted January 28, 2014, 5:39 PM

On Friday January 3, 2014, the Federalist Society opened its 16th Annual Faculty Conference with a panel discussion on the question “Is IP Property or Government-Conferred Monopoly?” Randy Barnett, Carmack Waterhouse Professor of Legal Theory, Georgetown University Law Center, served as the moderator.

The first panelist was David S. Olson, Associate Professor of Law at Boston College Law School, who began by noting that we have property rights for very good reasons, whether utilitarian or Natural Law: the world works best with such laws. Intellectual property (IP) is something different, however. True property has the property of rivalrousness: you can’t eat an apple that someone else is eating. It is a statement about physical reality. IP, by contrast, is not rivalrous. “If I come up with a new way to plough my crops, someone else can copy that on their land at the same time,” he said.

Defenders of IP, whether regarding patent or copyright law, claim that we will get fewer inventions if inventors do not have rights to exclude others from their inventions. Likewise for authors and their writings. There is a moral component to that argument, he claimed. It is not a matter of placing a tax on other users. There is a different mindset, however, if one takes a utilitarian perspective, as opposed to an argument from inherent rightness. In the former case, there would be an optimum level of IP protection, but the reality is that people create many positive externalities they can never reclaim. Typically we have not given IP protection to fashion and to natural phenomena (for example, discovering that a tree bark has an aspirin-like property). The question should always be: do we need to assign this particular right? If not, we should stop doing so.

Irina Manta, associate professor at Hofstra Law School, spoke next. She explained that she does not ground property rights in natural rights: Supporters of natural rights argue that the government must grant property rights yet she said the government does not own the right it is supposed to give. Rather, she said she sees property rules as maximizing social welfare. She stressed, however, that rhetoric does matter. When we liken IP to property in Congress or courts, more rights tend to be accorded. This is unfortunate since it contains an inaccurate understanding of non-IP property law. For instance, the doctrine that a man’s home is his castle has been modified over the years. We all agree there is a middle ground when it comes to property rights, she claimed. Nothing is achieved by making IP law more like property law or less like it. In her conclusion, she denied the claim that IP is nonrivalrous by offering the counterexample of trademarks in status goods: the value of owing a genuine Louis Vuitton bag is diminished if knockoffs are permitted.

Following Manta was Adam Mossoff, professor at George Mason University School of Law. He said his view was that IP is in fact a kind of property right. And it is so for both conceptual and normative reasons. As a preliminary matter he explained it is important to recognize that law can protect what people possess based on what those rights refer to: new values were secured as property rights as new kinds of things of value were created over the eons. For instance, the notion that property is not land per se but the disposition to use that land to the exclusion of other people. Other examples of new values are air rights, a water well (which is built), corporate forms of property (which we take for granted), and patents and inventions. IP is thus a legitimate example of the protection of values that have been created by individuals.

The final speaker was Gregory Dolin, Co-director of the Center for Medicine and Law at the University of Baltimore School of Law. He explained that his position falls between that of Manta and Mossoff but he disagrees with both. Beginning where Manta left off, he said he agreed that nomenclature matters in a visceral sense but what we should ultimately care about are the rules.  Courts assume foxes and whales can become property and thus apply certain sets of rules. Yet property is not a thing but a relation between individuals via legal rules. Calling it government privilege or property versus calling it IP does not matter.

He said that there do exist certain moral claims if IP is property. The classic assumption is that an owner of property has obtained the ownership by his labor at some point in the chain of possession. Suppose, for instance, that someone steals someone else’s Ph.D. dissertation. We think such copying is wrong even if there was no trespassing. There is no such moral implication, however, if we view IP as a matter government-conferred monopoly.

FedSoc Junior Faculty Workshops: Request for Proposals


by Publius
Posted January 28, 2014, 11:10 AM

The Federalist Society's Faculty Division is pleased to announce its sponsorship of a new round of Junior Faculty Workshops.  These workshops are intended to provide a structured—but relatively informal—environment in which six or so faculty members from different law schools can gather to spend a day workshopping each others’ papers, followed by a group meal.  The workshops can focus on a particular subject area or cover a broad range of interests, depending on the organizer’s preference.

We envision workshop participants consisting primarily of junior tenure track faculty (defined as people who have been in tenure track positions less than seven years), but also encompassing fellowship recipients or doctoral candidates in appropriate cases.  A junior faculty member will be responsible for organizing and directing the workshop, and will receive a budget for the event.  Wherethe participants are in relatively close geographical proximity, the maximum budget will generally be $1,000.  Where some degree of air/rail travel and lodging will be necessary, we may increase the budget to as much as $3,000 to help defray travel costs. Organizers should plan to hold the workshop sometime in 2014.

We invite interested junior faculty members to submit a workshop proposal setting forth a topic, date, location, schedule, list of potential participants, and description of anticipated expenditures. Proposals should be sent via email to anthony.deardurff@fed-soc.org no later than Friday, March 7, 2014.


FISA Court Judge Chafes at Obama Administration Secrecy


by Publius
Posted November 20, 2013, 4:51 PM

Josh Gerstein reports for Politico:

The largely-secret court that oversees many federal surveillance programs is chafing at the Obama Administration's reluctance to declassify one of the court's rulings.

In an order Wednesday, Foreign Intelligence Surveillance Court Judge Dennis Saylor faults the government for its taciturn response Monday to court orders instructing the executive branch to conduct a declassification review of the opinion, one of several sought by the American Civil Liberties Union.

"On November 18, 2013, the government advised that, '[a]fter careful review of the Opinion by senior intelligence officials and the U.S. Department of Justice, the Executive Branch has determined that the Opinion should be withheld in full and a public version of the Opinion cannot be provided,'" Saylor wrote. "The government has provided no explanation of this conclusion."

Betraying apparent irritation at the response, Saylor continued: "Accordingly, it is hereby ORDERED that, no later than December 20, 2013, the government shall submit a detailed explanation of its conclusion that the Opinion is classified in full and cannot be made public, even in a redacted form."

In his two-page order (posted here), the judge also reminded Justice Department lawyers that court rules require that the government prepared an unclassified or redacted version of the explanation and provide it to the other party in the litigation.

A spokesman for the Justice Department, which represents the government in front of the court, had no immediate response to a message seeking comment on the new order.

It is unclear why the Obama Administration concluded that nothing about the opinion, issued in February, could be made public. In recent months, the Director of National Intelligence has published or cleared for release dozens of court opinions and other filings in connection with sensitive surveillance programs revealed by former National Security Agency contractor Edward Snowden.

A total of 15 federal district court judges sit on the FISA court on a rotating basis. Saylor is a district court judge in Worcester, Mass.. He was appointed to that position by President George W. Bush.

Categories: Faculty Division

Nita Farahany, Winner of Federalist Society’s 2013 Paul M. Bator Award, Joins Volokh Conspiracy


by Publius
Posted October 17, 2013, 12:08 PM

Nita Farahany published her first post at the Volokh Conspiracy:

Hello Conspiracy! I am truly delighted to be joining you as the newest Conspirator, and thank Eugene for the invitation and warm welcome. I’ll be blogging primarily about issues at the intersection of law and the biosciences, including developments in neuroscience, philosophy of biology, and bioethics and the law. Occasionally, I’ll be posting about seemingly random but truly amazing breakthroughs in the biosciences. For those of you who don’t know me, I’m a Professor of Law and Philosophy, and a Professor of Genome Sciences and Policy at Duke. I’m also one of the co-founders of a new peer-reviewed journal, The Journal of Law and the Biosciences (a collaborative effort between Duke University, Stanford University, Harvard University and Oxford University Press). As a member of the Presidential Commission for the Study of Bioethical Issues (our esteemed staff is now back at work), and the most recent recipient of the Paul M. Bator award from the Federalist Society, I’m also a bit of an enigma. You can also find me on Twitter @NitaFarahany where you’ll get daily morsels of science. And if you followed the Law and Biosciences Digest, please join me here from now on, instead. I look forward to engaging with my fellow co-conspirators, and with all of you, our excellent readers!

New Faculty Book Podcast: A Distinct Judicial Power


by Publius
Posted June 07, 2012, 4:53 PM

Written by Northwestern University Law professor Scott Gerber, A Distinct Judicial Power: The Origins of an Independent Judiciary 1606-1787 analyzes the origins of judicial independence in the United States.  The book sets forth both the political theory behind and the historical progression of independent judicial power during the colonial period.  It concludes with an examination of how this mixture of theory and practice coalesced to produce Article III of the U.S. Constitution and a power of judicial review committed to the protection of individual rights.

Professor Gerber is joined by critical commenter Jim Pfander, also a professor at Northwestern University School of Law, to discuss the book.



Click here to view this article on the source site »

Upcoming Panel on John Inazu’s “Liberty’s Refuge: The Forgotten Freedom of Assembly” May 8


by Publius
Posted May 02, 2012, 8:20 AM

Ask Americans what they think the First Amendment protects, and they will tell you “freedom of speech.”  Some will also mention “freedom of religion.”  But few if any will think of “freedom of assembly.”  In his provocative new book, Liberty’s Refuge, The Forgotten Freedom of Assembly, Washington University School of Law’s John Inazu argues that this is an important loss.

During the past decade, courts have struggled to reconcile anti-discrimination statutes with claims by private organizations to First Amendment protection for decisions regarding their missions and membership.  Can the Boy Scouts expel a gay Scoutmaster? (Boy Scouts of America v. Dale)  Can a state law school deny official recognition to a religious club that requires members to affirm certain beliefs regarding homosexuality? (Christian Legal Society v. Martinez)  In resolving these questions courts have frequently invoked the freedom of "expressive association," a phrase that appears nowhere in the text of the First Amendment but has been a part of judicial doctrine since the mid-twentieth century.  Professor Inazu argues that this "expressive association" mode of analysis is at least in part responsible for what he argues is inadequate protection for associational autonomy--and that a return to the more textually and historically grounded "right of the people peaceably to assemble" is necessary to recapture the benefits of a meaningful pluralism.  The Constitution contemplated forcefully dissenting political and expressive groups that would serve as a check on majority rule’s tendency to turn into a force for stifling conformity.  To maintain an environment in which these groups will flourish, Inazu contends, our First Amendment jurisprudence must recover a more robust conception of associational autonomy grounded in a better understanding of the centrality and breadth of the assembly right.  

Is a more robust conception of associational autonomy desirable?  Is it what the Constitution contemplates What about the rights of individuals or groups excluded from participation as a result of private discrimination What is the proper balance between social equality and organizational autonomy?  Join the Federalist Society and the American Enterprise Institute as we explore these and other questions in a panel discussion of John Inazu’s thoughtful new book.


Start : Tuesday, May 8, 2012 4:30 PM

End   : Tuesday, May 8, 2012 6:30 PM


Location: American Enterprise Institute, 1150 17th St NW, Floor 12, Washington, DC 20036

Please register through the American Enterprise Institute's event webpage.

There is no charge for this event.

IHS to Hold Online Conference for Potential Law Professors


by Justin Shubow
Posted April 17, 2012, 10:35 AM

Kosmos Online, a project of the Institute for Humane Studies, will be holding an online conference for law students considering entering legal academia:

The seminar will consist of five one hour sessions held on weeknight evenings in May. Over the course of the program, presenters will offer advice on researching, networking, the job market, vitae building, and learning to think like a successful future academic. You can also look forward to practical advice about how to flourish during your time in law school.

Presentations will include:

  • Legal Academic Publishing with David Bernstein, professor at GMU Law School
  • Making the Most of Your Time in Law School with Ilya Somin, professor at GMU Law School
  • The AALS Process with Lee Liberman Otis, Senior Vice President & Director of the Federalist Society's Faculty Division

The conference will also feature current research discussions where students can receive feedback on their work from top law professors.

Upcoming Event: Taming Globalization: International Law, the Constitution, and the New World Order


by Publius
Posted April 12, 2012, 7:41 AM

In our increasingly global society, dozens of international institutions, from the International Court of Justice to border commissions to the World Trade Organization, cast a legal net across the globe.  This presents an unavoidable challenge to American constitutional law, especially to the separation of powers and the allocation of powers between the national government and the States.  In their new book, Taming Globalization: International Law, the U.S. Constitution, and the New World Order, Hofstra and Berkeley Law Professors Julian Ku and John Yoo propose that domestic actors should invoke “mediating devices” --  such as non-self-execution of treaties, recognition of the President’s authority to interpret international law, and a reliance on state implementation of international law and agreements.  These devices, Ku and Yoo argue, will help us resolve this challenge in a way that minimizes both constitutional and international difficulties.  Does this approach make sense?  How faithful is it to our Constitution?  To our traditions?  To our international law obligations?

Join the Federalist Society and the American Enterprise Institute on April 19 for a panel discussion of Yoo and Ku's new book.

Details below:

Start : Thursday, April 19, 2012 4:30 PM

End   : Thursday, April 19, 2012 6:30 PM

Location: American Enterprise Institute, 1150 17th St NW, 12th Floor, Washington, DC 20036




There is no charge for this event.  Please register online through the American Enterprise Institute's event webpage.

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