Why do we have more than one form of intellectual property rights? Why are the structures of patent and copyright forms so different? What factors influence the optimal structure of each form? We can move toward addressing some of these enduring puzzles and understanding the effects of the differences between intellectual property forms by examining the presence and distribution of information costs in the propertarian relationship. In this article, I explore the relationship between the nature of protected intellectual goods and differences in the structures of patent and copyright. Intellectual property rules in patent and copyright can make it easier or more difficult for parties to gather and comprehend information regarding protected goods. The literature on the law of organizations has recognized that it is most efficient to align transactions, which differ in their attributes, with organizational forms, which differ in structural ways, so as to minimize transaction costs. I argue that similarly, when intellectual property forms are structured to minimize information costs they are more efficient, all else equal, than when they are not so structured. Examining the presence and distribution of information costs can suggest ways in which we might increase efficiency in intellectual property.
The Supreme Court’s 1944 decision in Lyons v. Oklahoma, affirming the murder conviction of W.D. Lyons, a poor, young, black man from rural Oklahoma, failed to garner mention in any major newspaper. Now almost seventy years old, Lyons has received little attention among legal scholars and historians. But the story of W.D. Lyons offers the modern reader a window into the world of criminal justice during the Jim Crow era.
Rather than being an obscure footnote in the history of constitutional criminal procedure, or just another example of racial discrimination in the pre-civil rights era, Lyons is an important case that deserves to be revisited. Lyons presents an intriguing constitutional puzzle that provides insight into the confused evolution of coerced confessions and the Due Process Clause of the Fourteenth Amendment under the Hughes, Stone, and Vinson Courts. Interestingly, this period marks the beginning of both the doctrine and the debates that ultimately culminated in Miranda v. Arizona, a case that continues to be a source of controversy.
This Note examines the early evolution of the doctrine surrounding coerced confessions and the Due Process Clause, using Lyons as a point of departure. Lyons provides an excellent case study in that it shares many characteristics with the early Southern cases that inspired the coerced confession doctrine, yet it also marks the boundary that divides one stage of cases from the other. Finally, Lyons also casts light upon the larger jurisprudential battles that divided the Supreme Court in the 1940s and beyond.
In his recent essay, Why Conservative Jurisprudence Is Compassionate, Judge J. Harvie Wilkinson defends conservative jurisprudence against a claim that he believes unfairly derogates the normative attractiveness of conservative jurisprudence—specifically that conservative jurisprudence lacks compassion. To Judge Wilkinson, conservative jurisprudence, properly understood, can “more than hold [its] own” against its liberal counterpart in the compassion debate.
This essay responds to Judge Wilkinson’s thesis. It first articulates the arguments advanced by Judge Wilkinson in support of his thesis but then suggests that, even if his contentions hold some resonance, they still fall short of the goal of defending contemporary conservative jurisprudence as compassionate.
To begin with, Judge Wilkinson’s arguments are essentially only negative points about the purported overuse of compassion in liberal jurisprudence; they are not positive propositions suggesting that conservatism has its own unique vision or understanding of compassion. Moreover, Judge Wilkinson’s attempt to defend conservative jurisprudence is misplaced because the conservatism he describes is not contemporary conservative jurisprudence. Rather contemporary conservative jurisprudence, in order to achieve its desired results, is marked with the exact same jurisprudential deficiencies that Judge Wilkinson condemns in liberal jurisprudence. Finally, Judge Wilkinson’s attempt to defend contemporary conservative thought against liberal attack is misdirected because the liberal/conservative dichotomy he describes is not the primary line that currently divides the conservative and liberal camps. The division is not between a jurisprudence that inappropriately responds to individual poignancies and one that relies on sharp lines and collective concerns. Rather the essential division is between a liberal jurisprudence geared to protecting the marginalized groups in society versus a conservative jurisprudence that tends to reinforce the existing powers of dominant groups. As this essay demonstrates, conservatives have taken their role in protecting entrenched interests quite seriously. They have expanded the constitutional rights of already powerful interests. They have opposed liberal attempts to increase the constitutional protections accorded marginalized groups. They have invalidated legislative attempts that would reduce the disparities between the powerful and the marginalized in the political marketplace. They have consistently resisted both constitutional and legislative attempts to increase the access of disadvantaged litigants to courts of justice. Accordingly, the essay contends that the claim that such a jurisprudence is “compassionate” is difficult to sustain.