Vested Patents and Equal Justice

In a time of renewed interest in equal justice, the vested patent right may be timely again. Vested patent rights helped marginalized Americans to secure equal justice earlier in American history. And they helped to make sense of the law. Vested patent rights can perform those tasks again today. The concept of vested rights render patent law coherent. And it explains patent law’s interactions with other areas of law, such as property, administrative, and constitutional law. The vested rights doctrine also can serve the requirements of equal justice, as it has several times in American history. Vested rights secure justice for vulnerable minorities against majority factions. They resist the tendency of law to devolve into power. And they solve practical problems consistent with what we owe each other as equal agents of practical reason

Opus as the Core of Property

No account of property law can achieve a comprehensive understanding without factoring in natural rights. Professor Eric Claeys’s new book offers a significant contribution to contemporary property theory by setting out the most comprehensive and defensible theory of natural property rights to appear in a long time. Claeys describes the function of property as productive work. Intentional planning, purposeful effort, and creative ordering enable people to achieve lives of flourishing. And, as Claeys demonstrates in careful detail, the various norms and institutions of property law make possible those exercises of practical reason and the flourishing that results from them. Natural property rights turn out to have both pragmatic utility and ethical value. They enable human beings to flourish both materially and as reasoning, choosing, moral agents

The Mystery of Life in the Laboratory of Democracy: Personal Autonomy in State Law

This article attempts to carve a path between the two sides in this autonomy war. It begins by bringing into dialogue with each other four of the most influential legal philosophers of our day: Joseph Raz, Ronald Dworkin, John Finnis, and Robert George. Each of these four scholars makes bold and instructive claims about the value and limits of personal autonomy. The article then examines several different areas of state law where one might expect a principle of autonomy to be implicated, and articulates six important lessons that one can glean from state law about the relationship between personal autonomy and other human goods

A Gift Worth Dying For: Debating the Volitional Nature of Suicide in the Law of Personal Property

Suicide poses difficult and foundational problems for the law. Those who most highly value personal autonomy, those who believe in the inviolability of human life, and those who remain uncommitted on end-of-life issues, all must settle challenging questions about suicide before advancing upon the more complex terrain of physician-assisted suicide, euthanasia, and infanticide. And the way in which a society fashions legal responses to suicidal choices reveals much about the society\u27s cultural commitments and legal assumptions. The bodies of insurance law, tort, and health care law are also among those areas of the law in which lawmakers reserve special exceptions for the consequences of suicidal acts. One area that has received insufficient attention is the intersection of personal property law and suicide. In particular, suicide implicates a special exception to the enforceability of gifts made in contemplation of impending death. The issue is whether a gift of personal property causa mortis is valid when made in contemplation of and conditional upon the donor\u27s suicide. This question, like so many others that implicate suicide, is not easily resolved. This article addresses the enforceability of gifts of personal property made conditional upon acts of suicide and the attendant debate that has surfaced in the last three decades over the volitional nature of suicide

All for One: A Review of Victim-Centric Justifications for Criminal Punishment

Disparate understandings of the primary justification for criminal punishment have in recent years divided along new lines. Retributivists and consequentialists have long debated whether a community ought to punish violators of legal norms primarily because the violator has usurped communal standards (the retributivist view), or rather merely as a means toward some end such as rehabilitation or deterrence (the consequentialist view). The competing answers to this question have demarcated for some time the primary boundary in criminal jurisprudential thought. A new fault line appears to have opened between those who maintain the historical view that criminal punishment promotes the common good and those who believe that criminal punishment should primarily or exclusively serve or vindicate the interests of individual victims. For lack of commonly-used labels, this article shall refer to the former as Blackstonian retributivists and the latter as victim-centrists. Victim-centrists would allow states and communities to punish those who usurp certain rights of particular victims and would, in some instances, excuse conduct that has historically been understood as criminal on the ground that such conduct best serves a victim\u27s interest. Victim-centric justifications for punishment or forbearance from punishment can naturally be understood from a consequentialist perspective. Consequentialist reasoning provides a link between the harm suffered by a particular victim and the culpability of the perpetrator. For this reason, consequentialism and victim-centrism make an obvious fit. However, the divide between the Blackstonians and the victim-centrists is not contiguous with the line between retributivists and consequentialists. Rather, some retributivists, most notably George Fletcher, have pitched their tents with consequentialist victim-centrists. This article will review briefly the Blackstonian conception of criminal punishment. It will then examine some victim-centric schemes, taken as representative of victim-centric schemes offered from consequentialist and retributivist perspectives. Finally, it will survey three putative victim-centric developments in positive law. The goals of this survey are to discern whether victim-centrism constitutes an improvement upon Blackstonian retributivism and whether Blackstonian jurisdictions, including the common law states in the United States, have anything to learn from putative victim-centric developments in positive law

All for One: A Review of Victim-Centric Justifications for Criminal Punishment

Disparate understandings of the primary justification for criminal punishment have in recent years divided along new lines. Retributivists and consequentialists have long debated whether a community ought to punish violators of legal norms primarily because the violator has usurped communal standards (the retributivist view), or rather merely as a means toward some end such as rehabilitation or deterrence (the consequentialist view). The competing answers to this question have demarcated for some time the primary boundary in criminal jurisprudential thought. A new fault line appears to have opened between those who maintain the historical view that criminal punishment promotes the common good and those who believe that criminal punishment should primarily or exclusively serve or vindicate the interests of individual victims. For lack of commonly-used labels, this article shall refer to the former as Blackstonian retributivists and the latter as victim-centrists. Victim-centrists would allow states and communities to punish those who usurp certain rights of particular victims and would, in some instances, excuse conduct that has historically been understood as criminal on the ground that such conduct best serves a victim\u27s interest. Victim-centric justifications for punishment or forbearance from punishment can naturally be understood from a consequentialist perspective. Consequentialist reasoning provides a link between the harm suffered by a particular victim and the culpability of the perpetrator. For this reason, consequentialism and victim-centrism make an obvious fit. However, the divide between the Blackstonians and the victim-centrists is not contiguous with the line between retributivists and consequentialists. Rather, some retributivists, most notably George Fletcher, have pitched their tents with consequentialist victim-centrists. This article will review briefly the Blackstonian conception of criminal punishment. It will then examine some victim-centric schemes, taken as representative of victim-centric schemes offered from consequentialist and retributivist perspectives. Finally, it will survey three putative victim-centric developments in positive law. The goals of this survey are to discern whether victim-centrism constitutes an improvement upon Blackstonian retributivism and whether Blackstonian jurisdictions, including the common law states in the United States, have anything to learn from putative victim-centric developments in positive law

Public Rights after Oil States Energy

The concept of public rights plays an important role in the jurisprudence of the Supreme Court of the United States. But as the decision in Oil States last Term revealed, the Court has often used the term to refer to three different concepts with different jurisprudential implications. Using insights drawn from historical and analytical jurisprudence, this Article distinguishes the three concepts and examines how each of them is at work in patent law. A precise reading of Oil States also bears lessons for other areas of law that implicate both private rights and duties and the administration of public regulatory schemes