The use and abuse of ip at the birth of the administrative state

University of Pennsylvania Law Review

Volumn 157, Issue 6, 2009, Pages 2001-2050

  Adam, Mossoff ^a  

^a GEORGE MASON UNIVERSITY   (United States)

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EID: 69849098353     PISSN: 00419907     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Review

References (296)

1. See, e.g., Stuart Minor Benjamin & Arti K. Rai, Who's Afraid of the APA? What the Patent System Can Learn from Administrative Law, 95 GEO. L.J. 269, 270 (2007) (noting that "inattention to administrative law principles has long been a striking feature of the patent system") ;
2. John F. Duffy, The FCC and the Patent System: Progressive Ideals, Jacksonian Realism, and the Technology of Regulation, 71 U. COLO. L. REV. 1071, 1079 (2000) (observing that "the patent system ... has been customarily ignored in stuthes of administrative regulation");
3. Craig Allen Nard, Deference, Defiance, and the Useful Arts, 56 OHIO ST. L.J. 1415, 1420-21 (1995) (observing that "an analysis of the appropriate allocation of interpretive authority between the Federal Circuit and PTO, in the context of patent law, has never fully been performed").
4. See Orin S. Kerr, Rethinking Patent Law in the Administrative State, 42 WM. & MARY L. REV. 127, 127 n.l (2000) (citing sources from the 1990s discussing the PTO as an administrative agency);
5. see also sources cited supra note 1.
6. Shubha Ghosh, Patents and the Regulatory State: Rethinking the Patent Bargain Metaphor After Eldred, 19 BERKELEY TECH. L.J. 1315,1388 (2004).
7. 527 U.S. 150, 152 (1999).
8. Tafas v. Doll, No.08-1352, 2009 WL 723353, at *5 (Fed. Cir. Mar. 20, 2009) (Prost J.) ("Thus, on review of a procedural rule that has been issued by the USPTO, we will give Chevron deference to the USPTO's interpretation of statutory provisions that relate to the exercise of its delegated authority.").
9. See id. at *17 (Bryson, J., concurring) (rejecting the distinction adopted in Judge Prost's opinion on procedural versus substantive rules and arguing that "it is unnecessary to decide whether deference would be due to the agency's interpretation of its own authority, as we conclude, even without deference, that the agency has authority to issue regulations of the sort issued in this case");
10. id. at *19 (Rader, J., concurring in part and dissendng in part) (arguing that the PTO's rules "are substantive, not procedural," and thus maintaining that the panel should "affirm the district court's conclusion that the PTO exceeded its statutory rulemaking authority").
11. See id. at *15 (Prost J.) (acknowledging the "complexity of this case" and identifying five additional legal and factual issues that need to be resolved on remand).
12. See Duffy, supra note 1, at 1133 ("Unlike the sweeping delegations conferred in the Progressive and New Deal eras, the delegations of governmental power for the patent system were, and still are, extraordinarily narrow.");
13. Kerr, supra note 2, at 129 ("The patent system operates not through regulation, but rather through the private law mechanisms of contract, property, and tort").
14. See U.S. CONST, art. I, §8 ("The Congress shaU have powerTo promote the progress of science and useful arts, by securing for Umited times to authors and inventors the exclusive right to their respective writings and discoveries.").
15. See, e.g., JAMES M. LANDIS, THE ADMINISTRATIVE PROCESS 7, 16 (1938) (claiming that "the growing interdependence of individuals" requires "that government assume responsibUity not merely to maintain etiiical levels in the economic relations of the members of society, but to provide for the efficient functioning of the economic processes of the state");
16. Francis S. Philbrick, Changing Conceptions of Property in Law, 86 U. PA. L. REV. 691, 726 (1938) ("It is not, however, the use of ordinary property, nor the property of ordinary or 'natural' persons, that presents today serious problems of adjusting law to new social conditions. Those problems arise in connection with property for power, and therefore primarily in connection with industrial property.").
17. See Robert L. Hale, Rate Making and the Revision of the Property Concept, 22 COLUM. L. REV. 209, 214-15 (1922) (discussing how "ownership in a manufacturing plant" is controlled under the law);
18. see also Eric R. Claeys, Essay, Euclid Lives? The Uneasy Legacy of Progressivism in Zoning 73 FORDHAM L. REV. 731, 731 (2004) (recounting the standard story that the "Industrial Revolution, growing cities, and motor-powered transportation all created intense land-use conflicts," which ultimately led to the Supreme Court's endorsement of zoning as a superior land-use regulatory model).
19. See generally Eric R. Claeys, The National Regulatory State in Progressive Political Theory and Twentieth-Century Constitutional Law, in MODERN AMERICA AND THE LEGACY OF THE FOUNDING 35 (Ronald J. Pestritto & Thomas G. West eds., 2007).
20. Thomas W. Merrill & Henry E. Smith, What Happened to Property in Law and Economics?, 111 YALE L.J. 357, 365 (2001).
21. See generally Wesley Newcomb Hohfeld, Fundamental Legal Conceptions as Applied in Judicial Reasoning 26 YALE L.J. 710 (1917).
22. See, e.g., Lingle v. Chevron U.S.A., Inc., 544 U.S. 528, 539 (2005) ("A permanent physical invasion, however minimal the economic cost it entails, eviscerates the owner's right to exclude others from entering and using her property-perhaps the most fundamental of all property interests.");
23. Andrus v. Allard, 444 U.S. 51, 66 (1979) (rejecting a takings claim arising from a federal prohibition on the sale of eagle feathers because the "loss of future profits-unaccompanied by any physical property restriction-provides a slender reed upon which to rest a takings claim").
24. Joseph William Singer, Legal Realism Now, 76 CAL L. REV. 465, 467 (1988) (book review).
25. See infra notes 182-183,197-202 and accompanying text.
26. See infra note 145 and accompanying text
27. Within extant legal-realist scholarship, Felix Cohen developed the most sophisticated and systemic property theory, which is probably why his work is cited often by modern property scholars. Accordingly, Cohen's arguments deserve serious consideration as the best representative example of legal-realist property theory.
28. See infra notes 86-87 and accompanying text
29. JOHN LOCKE, TWO TREATISES OF GOVERNMENT 285-302 (Peter Laslett ed., Cambridge Univ. Press, student ed. 1988) (1690).
30. See Richard A Epstein, Intellectual Property: Old Boundaries and New Frontiers, 76 IND. L.J. 803, 827 (2001) (stating that theoretical accounts of intellectual property help "make sense of the [inteUectual property] system in its basic outlines," which then orients scholars and judges toward "a set of guidelines that should help us deal with the second-order questions of filling in the details of the system").
31. See, e.g., Kaiser Aetna v. United States, 444 U.S. 164,176 (1979) (stating that the right to exclude is "one of the most essential sticks in the bundle of rights that are commonly characterized as property").
32. See, e.g., Bowles v. Wilhngham, 321 U.S. 503, 517 (1944) (upholding federal price control on the housing market and noting that all "forms of regulation[] may reduce the value of the property regulated" but "that does not mean that the regulation is unconstitutional");
33. Vill. of Euclid v. Ambler Realty Co., 272 U.S. 365 (1926) (holding that zoning is a valid regulation of property use that does not violate the Due Process Qause of the Fourteenth Amendment);
34. Pa. Coal Co. v. Mahon, 260 U.S. 393, 413 (1922) (holding a mining regulation to be an unconstitutional taking but noting that "[g]overnment hardly could go on if to some extent values incident to property could not be diminished without paying for every such change in the general law").
35. See BRUCE A. ACKERMAN, PRIVATE PROPERTY AND THE CONSTITUTION 28 (1977) (observing that the bundle conception of property "permits the [lawyer] to escape a 'literal' construction of the [Takings] clause that would transform him into an implacable foe of the modern state").
36. See, e.g., id. at 26-29, 98-100 (contrasting the "layman's" view of property as thing ownership with the lawyer's "scientific" analysis of property as a "bundle" of legal relations).
37. See Singer, supra note 16, at 467 ("All major current schools of thought are, in significant ways, products of legal realism. To some extent, we are all realists now.").
38. See, e.g., Robert G. Bone, A New Look at Trade Secret Law: Doctrine in Search of Justification, 86 CAL. L. REV. 241, 251-60 (1998);
39. Adam Mossoff, What is Property? Putting the Pieces Back Together, 45 ARIZ. L. REV. 371, 372 (2003).
40. See Eric R. Claeys, Jefferson Meets Coase: Land-Use Torts, Law and Economics, and Natural Property Rights, 85 NOTRE DAME L. REV. (forthcoming 2010) (manuscript at 4647), available at http://ssrn.com/abstract-l 117999. Qaeys writes, The Realists ... needed to revise property conceptual theory for substantive political reasons. The political assumptions informing their conception of social science led them to believe that resource uses could and needed to be managed by experts applying "scientific" conceptions of social efficiency. If the concept "property" is a nominalist term-that is, if "property" refers to "that which the law happens to caU property in a particular case"-the term would allow experts to manage particular uses of property in particular resource disputes without needing to worry overmuch that the conceptual structure of property might limit their efforts.
41. Id. (footnotes omitted).
42. See JESSE DUKEMINTER ET AL., PROPERTY 81 (6th ed. 2006) (defining property as comprising "a number of disparate rights, a 'bundle' of them: the right to possess, the right to use, the right to exclude, the right to transfer");
43. JOSEPH WILLIAM SINGER, PROPERTY LAW, at xxxix, xlix (4th ed. 2006) (noting that "[o]wners of property generally possess a bundle of entitlements and that property theory helps justify the nature and scope of these intricate "social relations").
44. Gerald Korngold & Andrew P. Morris, Introduction: The Story of Property Stories, in PROPERTY STORIES 1 (Gerald Korngold & Andrew P. Morris eds., 2004);
45. see also United States v. Craft, 535 U.S. 274, 278 (2002) ("A common idiom describes property as a 'bundle of sticks'-a collection of individual rights which, in certain combinations, constitute property.");
46. STEPHEN R. MUNZER, A THEORY OF PROPERTY 16-17 (1990) (discussing the "sophisticated conception" of property as a "bundle of 'sticks'" or a set of legal "relations among persons or other entities with respect to things").
47. See generally Hohfeld, supra note 14.
48. See, e.g., BENJAMIN N. CARDOZO, THE PARADOXES OF LEGAL SCIENCE 129 (1928) ("The bundle of power and privileges to which we give the name of ownership is not constant through the ages. The faggots must be put together and rebound from time to time.").
49. Felix S. Cohen, Dialogue on Private Property, 9 RUTGERS L. REV. 357, 361-63 (1954);
50. see also 1 RICHARD T. ELY, PROPERTY AND CONTRACT IN THEIR RELATION TO THE DISTRIBUTION OF WEALTH 96 (1914) ("The essence of property is in the relations among men arising out of their relations to things." (emphasis omitted));
51. ALEXANDER LINDSAY, ESSAY IN PROPERTY: ITS DUTIES AND RIGHTS 70 (2d ed. 1922) ("[P]rivate property.... is a right vested in individuals thought of as set over against one another, and it requires the recognition and protection of society for its existence.");
52. Hohfeld, supra note 14, at 743 ("[T]he supposed single right in rem [in property] ... really involves as many separate and distinct 'right-duty' relations as there are persons subject to a duty....").
53. RESTATEMENT (FIRST) OF PROPERTY ch. 1, introductory note (1936);
54. see also Arthur L. Corbin (A.L.C.), Comment, Taxation of Seats on the Stock Exchange, 31 YALE L.J. 429, 429 (1922) ("Our concept of property has shifted....'[P]roperty' has ceased to describe any res, or object of sense, at all, and has become merely a bundle of legal relations....").
55. Walton H. Hamilton & Irene Till, Property, in 11 ENCYCLOPAEDIA OF THE SOCIAL SCIENCES 528, 528 (Edwin R.A. Sehgman & Alvin Johnson eds., 1937).
56. Thomas C. Grey, The Disintegration of Property, in PROPERTY: NOMOS XXII, at 69, 69 (J. Roland Pennock & John W. Chapman eds., 1980);
57. see also Nestor M. Davidson, Standardization and Pluralism in Property Law, 61 VAND. L. REV. 1597, 1646-47 (2008) (recognizing that the legal realists had an "anti-essentialist focus on the legally constructed and contingent nature of property" that was "predicated on the disintegration of property into constituent elements");
58. Mossoff, supra note 28, at 372-374 (identifying the same point and citing others who have also observed this problem).
59. See DAVID HUME, A TREATISE OF HUMAN NATURE 269 (LA. Selby-Bigge ed., Oxford University Press 2d ed. 1978) (1793);
60. see also DAVID HUME, ENQUIRIES CONCERNING HUMAN UNDERSTANDING AND CONCERNING THE PRINCIPLES OF MORALS 160 (L.A. Selby-Bigge ed., Oxford University Press 3d ed. 1975) (1777).
61. Cohen, supra note 34, at 378;
62. cf. Michael A Heller, The Boundaries of Private Property, 108 YALE L.J. 1163, 1193 (1999) ("While the modern bundle-of-legal relations metaphor reflects well the possibility of complex relational fragmentation, it gives a weak sense of the 'thingness' of private property.").
63. See, e.g., Int'l News Serv. v. Associated Press, 248 U.S. 215, 246 (1918) (Holmes, J., thssenting) (asserting that "[p]roperty depends upon exclusion by law from interference");
64. id. at 250 (Brandeis, J., dissenting) ("An essential element of individual property is the legal right to exclude others from enjoying it");
65. Hamilton & Till, supra note 36, at 536 ("It is incorrect to say that the judiciary protected property; rather they called that property to which they accorded protection.");
66. Hohfeld, supra note 14, at 745-46 (explaining that the right to exclude is the only claim-right constituting the in rem legal relation among citizens known as "property").
67. Cohen, supra note 34, at 378.
68. Id. at 373.
69. Morris R. Cohen, Property and Sovereignty, 13 CORNELL L.Q. 8, 12 (1927).
70. OLIVER WENDELL HOLMESJR., THE COMMON LAW 246 (1881).
71. Kaiser Aetna v. United States, 444 U.S. 164, 176 (1979);
72. see also Coll. Sav. Bank v. Fla. Prepaid Postsecondary Educ. Expense Bd., 527 U.S. 666, 673 (1999) ("The hallmark of a protected property interest is the right to exclude others.").
73. Thomas W. Merrill, Property and the Right to Exclude, 77 NEB. L. REV. 730, 730 (1998).
74. See Eric R. Claeys, Property 101: Is Property a Thing or a Bundle?, 32 SEATTLE U. L. REV. 617, 635 (2009) (book review) ("Contemporary property scholars ... often assume that the ad hoc bundle conception was the only legacy from Realist property scholarship.");
75. Merrill & Smith, supra note 13, at 365 (claiming that the bundle of rights metaphor "became popular among the legal realists in the 1920s and 1930s").
76. See, e.g., Merrill, supra note 46, at 737 ("For the Realists, property was not defined by a single right or definitive trilogy of rights. Rather it is a 'bundle of rights.' Moreover, this bundle has no fixed core or constituent elements.").
77. See THOMAS W. MERRILL & HENRY E. SMITH, PROPERTY, at v (2007) (claiming that "property at its core entails the right to exclude others from some discrete thing");
78. Merrill, supra note 46, at 754 (asserting that "property means the right to exclude others from valued resources, no more and no less").
79. Cf. Adam Mossoff, Exclusion and Exclusive Use in Patent Law, 22 HARV. J.L. & TECH. 321, 360-370 (2009) (identifying a nexus between the legal realists' exclusion conception of property theory and modern patent theory).
80. See Karl N. Llewellyn, Some Realism About Realism-Responding to Dean Pound, 44 HARV. L. REV. 1222, 1233-34 (1931) (observing that the legal realists were not of one mind on any issue in law or politics);
81. see also NEIL DUXBURY, PATTERNS OF AMERICAN JURISPRUDENCE 69 (1995) ("Realism was more a mood than a movement. That mood was one of thssatisfaction with legal formalism...").
82. See CARDUZO, supra note 33, at 129 ("The bundle of power and privileges to which we give the name of ownership is not constant through the ages.");
83. Corbin, supra note 35, at 429 (asserting that "'property' has ceased to describe any res, or object of sense, at all, and has become merely a bundle of legal relations-rights, powers, privileges, immunities");
84. Hale, supra note 11, at 214 ("The right of ownership in a manufacturing plant is, to use Hohfeld's terms, a privilege to operate the plant, plus a privilege not to operate it plus a right to keep others from operating it, plus a power to acquire all the rights of ownership in the products.");
85. see also J.E. Penner, The "Bundle of Rights" Picture of Property, 43 UCLA L. REV. 711, 714 (1996) (observing that "'[property is a bundle of rights' is little more than a slogan" and noting that "[t]here is no real theory that property is a bundle of rights").
86. Walton H. Hamilton, Property-According to Locke, 41 YALE L.J. 864, 865 (1932) (citing PA&HAL LARKIN, PROPERTY IN THE EIGHTEENTH CENTURY (1930)).
87. McKeon v. Bisbee, 9 Cal. 137, 143 (1858);
88. see also Vanhorne's Lessee v. Dorrance, 2 U.S. (2 Dall.) 304, 310 (1795) ("[T]he right of acquiring and possessing property, and having it protected, is one of the natural, inherent, and unalienable rights of man.");
89. City of Denver v. Bayer, 2 P. 6, 6-7 (Colo. 1883) ("Property, in its broader and more appropriate sense, is not alone the chattel or the land itself, but the right to freely possess, use, and alienate the same....");
90. Eaton v. B. C. & M. R.R., 51 N.H. 504, 511 (1872) ("Property is the right of any person to possess, use, enjoy, and dispose of a thing." (quoting Wynehamer v. People, 13 N.Y. 378, 433 (1856))).
91. Felix S. Cohen, Transcendental Nonsense and the Functional Approach, 35 COLUM. L. REV. 809, 815 (1935).
92. Id. at 809.
93. Cohen, supra note 34, at 361.
94. See Mossoff, supra note 50, at 360-365 (discussing the realists' use of patents and other IP rights to justify the conceptual claim that "property" means only a right to exclude).
95. Corbin, supra note 35, at 429.
96. Cohen, supra note 34, at 360.
97. See Johnson v. M'Intosh, 21 U.S. (8 Wheat) 543 (1823) (upholding first possession for claiming land as property);
98. Pierson v. Post, 3 Cai. 175 (N.Y. Sup. Ct. 1805) (upholding the rule of capture for claiming property in wild animals).
99. Felix Cohen summarized "property in terms of a simple label" as follows: "To the world: Keep off X unless you have my permission, which I may grant or withhold. Signed: Private Citizen. Endorsed: The state." Cohen, supra note 34, at 374 (italics added).
100. See HOLMES, supra note 44, at 246;
101. Cohen, supra note 43, at 45.
102. Cohen, supra note 55, at 815.
103. Cohen, supra note 34, at 363-364
104. Id.at 364.
105. Id.
106. Id.
107. Modem trademark law is conceptually muddled. Cohen recognized that the doctrine is muddled, but he argued that trademarks are classified conceptually as "property" because courts permit trademark owners to obtain "injunctive relief," which is the legal remedy that enforces the right to exclude. Cohen, supra note 55, at 814. In fact, law and economics now identifies legal entitlements providing for injunctive relief as "property rules."
108. See generally Guido Calabresi & A Douglas Melamed, Property Rules, Liability Rules, and Inalienability: One View of the Cathedral, 85 HARV. L. REV. 1089 (1972) (setting forth the now-famous property rule (injunction) and liability rule (damages) distinction).
109. Cohen, supra note 55, at 814.
110. See Mark P. McKenna, The Normative Foundations of Trademark Law, 82 NOTRE DAME L. REV. 1839, 1873-85 (2007).
111. Amoskeag Mfg. Co. v. Spear, 2 Sand. Ch. 599,606 (N.Y. Sup. Ct 1849).
112. See Cohen, supra note 55, at 815 n.18 (discussing Am. Agrie. Chem. Co. v. Moore, 17 F.2d 196 (M.D. Ala. 1927)).
113. Id. at 815. This is a formalized representation of Cohen's sentence. It could be symbolically presented as A → B, B = C, A, :. C.
114. 248 U.S. 215 (1918).
115. Id. at 246 (Holmes, J., dissenting in part).
116. LINDSAY, supra note 34, at 70. Lindsay's work was known to the American legal realists.
117. See, e.g., MORRIS R. COHEN & FEUX S. COHEN, READINGS IN JURISPRUDENCE AND LEGAL PHILOSOPHY 98-99 (1951) (reproducing an excerpt of Lindsay's Essay in Property: Its Duties and Rights, supra note 34).
118. See, e.g., Sommer v. Kridel, 378 A.2d 767, 772-773 (N.J. 1977) (holding that "antiquated real property concepts which served as the basis for the pre-existing rule, shall no longer be controlling," and that "claims must be governed by more modern notions of fairness and equity");
119. RESTATEMENT (THIRD) OF PROPERTY: SERVITUDES §1.4, §1.4 cmt. a (2000) (eliminating the distinction between real covenants and equitable servitudes because "much of the 19th century complexity is irrelevant and unnecessary").
120. See Vill. of Euclid v. Ambler Realty Co., 272 U.S. 365, 394-395 (1926) (holding that zoning regulations are not arbitrary because "zoning has received much attention at the hands of commissions and experts" and their comprehensive reports "bear every evidence of painstaking consideration").
121. DUXBURY, supra note 51, at 112 (referring to Fred Rodell and Thurman Arnold).
122. Cohen, supra note 55, at 826.
123. See JOHN AUSTIN, THE PROVINCE OF JURISPRUDENCE DETERMINED 231 (Wilfrid E. Rumble ed., 1995) (1832) ("Every legal right is the creature of positive law.");
124. JEREMY BENTHAM, THE THEORY OF LEGISLATION 113 (C.K. Ogden ed., Richard Hildreth trans., Routiege &
125. Kegan Paul Ltd. 1931) (1864) ("Property and law are born together, and the together. Before laws were made there was no property; take away laws, and prop-eity ceases.");
126. see also Philbrick, supra note 10, at 729 (citing Bentham for the proposition that "property is the creature and dependent of law").
127. See Penner, supra note 52, at 713 n.8 (discussing the provenance of the bundle metaphor in the late 1800s).
128. See Cohen, supra note 55, at 826 (advancing a functionalist account of law based in the pragmatic and positivist philosophy "vigorously pressed by C. S. Peirce, James, Dewey, Russell, Whitehead, C. I. Lewis, C. D. Broad, and most recendy by the Viennese School, primarily by Wittgenstein and Camap").
129. Id.
130. See Richard A Epstein, No New Property, 56 BROOK. L. REV. 747, 750 (1990) (observing that American property lawyers are the "inheritors of the Lockean tradition").
131. See, e.g., David L. Wardle, Reason to Ratify: The Influence of John Locke's Religious Beliefs on the Creation and Adoption of the United States Constitution, 26 SEATTLE U. L. REV. 291, 297 (2002) ("Locke's influence on the Constitution was not as strong in the actual substance and form of the document as that of Montesquieu;
132. rather, it was more indirect creating an atmosphere in early America conducive to its creation and adoption.") ;
133. see also GARRY WILLS, INVENTING AMERICA: JEFFERSON'S DECLARATION OF INDEPENDENCE 171-75 (1978) (arguing that Locke had little to no influence in the actual writing of the Declaration of Independence);
134. Jason F. Robinson, Book Review: Gerber's To Secure These Rights, 12 J.L. & POL. 123, 132-33 (1996) ("Since the mid-1960s, historians have challenged the prevailing Lockean interpretation of the American founding, arguing that the American revolutionaries were concerned less with individual rights and limited government than with the cultivation of a virtuous, public-spirited citizenry willing to sacrifice individual self interest for the greater public good.").
135. The specifics of Locke's property theory will be explicated in greater detail at the relevant points in assessing Felix Cohen's critique.
136. See, e.g., infra notes 147-160 and accompanying text (discussing how "labor" refers to "production" in Locke's property theory).
137. LOCKE, supra note 21, at 299. In his famous mixing-labor argument for property, Locke claims "[t]he labour that was mine, removing [things] out of that common state they were in, hath fixed my Property in them."
138. Id. at 289.
139. Id. at 296.
140. See Adam Mossoff, Locke's Labor Lost, 9 U. CHI. L. SCH. ROUNDTABLE 155 (2002) (discussing Locke's thick notion of "labor" in his theory of property);
141. see also STEPHEN BUCKLE, NATURAL LAW AND THE THEORY OF PROPERTY 151 (1991) (The doctrine of the origin of property through labor will not properly be understood if it is not recognized that Locke thinks of labour as a rational (or purposeful), value-creating activity.").
142. See LOCKE, supra note 21, at 292 ("The Measure of Property, Nature has well set, by the Extent of Mens['] Labour....").
143. See id. at 350 (observing that people "joyn [sic] in Society ... for the mutual Preservation of their Lives, Liberties and Estates, which I call by the general Name, Property").
144. Vanhome's Lessee v. Dorrance, 2 U.S. (2 Dall.) 304, 310 (1795).
145. James Madison, Property, NAT'L GAZETTE, Mar. 29, 1792, reprinted in JAMES MADISON, WRITINGS 515 (Jack N. Rakové ed., 1999).
146. Id. at 515 (emphasis added).
147. Id at 517.
148. See Laura S. Underkuffler, On Property: An Essay, 100 YALE L.J. 127, 137 (1990) (The broad conception of property found in Madison's essay, and implicit in the writings of others in the Founding Era, is not an aberration in intellectual history.");
149. see also Mossoff, supra note 28, at 404-407 (same).
150. D.J. Brewer, Justice, U.S. Supreme Court, Protection of Private Property from Public Attack, Address at the Yale Law School Graduation Ceremony (June 23, 1891), as reprinted in 10 GREEN BAG 2D 495, 501 (2007).
151. In re Jacobs, 98 N.Y. 98,105 (1885).
152. Id. at 115.
153. In re Flintham's Appeal, 11 Serg. & Rawle 16, 23 (Pa. 1824) (Duncan.J.).
154. 98 Mass. 452, 458 (1868).
155. Id. at 457.
156. 467 U.S. 986, 1003 (1984) (citing JOHN LOCKE, THE SECOND TREATISE OF CIVIL GOVERNMENT AND A LETTER CONCERNING TOLERATION 14-26 (J.W. Gough ed., 1946) (1690)).
157. Peabody, 98 Mass. at 457-458
158. See Adam Mossoff, Who Cares What Thomas Jefferson Thought About Patents? Reevaluating the Patent "Privilege"in Historical Context, 92 CORNELL L. REV. 953, 992-993 (2007).
159. See Adam Mossoff, Patents as Constitutional Private Property: The Historical Protection of Patents Under the Takings Clause, 87 B.U. L. REV. 689, 700-707 (2007).
160. 2 JAMES KENT, COMMENTARIES ON AMERICAN LAW 474 (O.W. Holmes, Jr. ed., 12th ed., Little, Brown, and Co. 1873) (1826).
161. Id.
162. 41 ANNALS OF CONG. 934 (1824). Even the congressmen who disagreed with Webster's specific legislative proposal, such as Representative Buchanan, found common cause with Webster that the law should secure "the property which an inventor has in that which is the product of his own genius." Id. at 936.
163. CHARLES SLACK, NOBLE OBSESSION: CHARLES GOODYEAR, THOMAS HANCOCK, AND THE RACE TO UNLOCK THE GREATEST INDUSTRIAL SECRET OF THE NINETEENTH CENTURY 182-188 (2002).
164. Argument in the Goodyear Rubber Case, in 15 THE WRITINGS AND SPEECHES OF DANIEL WEBSTER 437, 438 (Edward Everett ed., 1903).
165. Hawes v. Gage, 11 F. Cas. 867, 867 (C.C.N.D.N.Y. 1871) (No.6237);
166. see also Birdsall v. McDonald, 3 F. Cas. 441, 444 (C.C.N.D. Ohio 1874) (No. 1434) ("Patent laws are founded on the policy of giving to [inventors] remuneration for the fruits, enjoyed by others, of their labor and their genius.");
167. Middletown Tool Co. v. Judd, 17 F. Cas. 276, 278 (C.C.D. Conn. 1867) (No. 9536) (recognizing that the patent laws secure even "the fruit of a very small amount of inventive skill");
168. Clark Patent Steam & Fire Regulator Co. v. Copeland, 5 F. Cas. 987, 988 (C.C.S.D.N.Y. 1862) (No. 2866) ("Congress has wisely provided by law that inventors shall exclusively enjoy, for a limited season, the fruits of their inventions.");
169. Davoll v. Brown, 7 F. Cas. 197, 199 (C.C.D. Mass. 1845) (No. 3662) (explaining that the law "protects] intellectual property, the labors of the mind, productions and interests as much a man's own, and as much the fruit of his honest industry, as the wheat he cultivates, or the flocks he rears");
170. Brooks v. Bicknell, 4 F. Cas. 247, 251 (C.C.D. Ohio 1843) (No. 1944) (stating that "a man should be secured in the fruits of his ingenuity and labor" and that "it seems difficult to draw a distinction between the fruits of mental and physical labor");
171. McKeever v. United States, 14 Ct Cl. 396, 420 (1878) (quoting an unnamed constitutional commentator that the Copyright and Patent Clause in Article I, Section 8, secures to authors and inventors "a natural right to the fruits of mental labor").
172. See Mossoff, supra note 107, at 993 n.193 (listing cases in which infringers are identified as "pirates").
173. See supra notes 69-77 and accompanying text (explaining Cohen's view of Lockean theory as circular).
174. 2 J. THOMAS McCARTHY, McCARTHY ON TRADEMARKS AND UNFAIR COMPETITION §12:1 (4th ed. 2008) (discussing the rule that firms are prohibited from claiming trademark protection for generic terms).
175. See Dixi-Cola Labs., Inc. v. Coca-Cola Co., 117 F.2d 352 (4th Cir. 1941).
176. See Charles R. De Bevoise Co. v. H. & W. Co., 60 A. 407 (N.J. Ch. 1905).
177. "Wonderbra" is a trademark owned by CanadeUe Limited Partnership of Canada, a wholly owned subsidiary of HanesBrands Inc.
178. Harley-Davidson, Inc. v. Grottanelli, 164 F.3d 806 (2d Cir. 1999).
179. See infra Section II.D.
180. See Adam Mossoff, Rethinking the Development of Patents: An Intellectual History, 1550 - 1800,52 HASTINGS L.J. 1255, 1270-76 (2001).
181. See Craig Allen Nard & Andrew P. Morriss, Constitutionatizing Patents: From Venice to Philadelphia, 2 REV. L. & ECON. 223, 233-258 (2006).
182. See supra notes 103-104 and accompanying text To this day, England refuses to recognize trade secrets as property, protecting them instead under various contract and tort doctrines.
183. See generally AIXISON COLEMAN, THE LEGAL PROTECTION OF TRADE SECRETS 8-9 (1992).
184. See, e.g., Dennis D. Crouch, The Patent Lottery: Exploiting Behavioral Economics for the Common Good, 16 GEO. MASON L. REV. 141, 141 (2008) ("[O]ur patent system is built primarily on assumptions about how incentives operate.").
185. See WILLIAM M. LANDES & RICHARD A POSNER, THE ECONOMIC STRUCTURE OF INTELLECTUAL PROPERTY LAW 18-20 (2003) (discussing how "the public-good character of intellectual property ... can make it difficult to prevent misappropriation and to exclude free riders" and thus "[u]nless there is power to exclude, the incentive to create intellectual property in the first place may be impaired").
186. See Mossoff, supra note 50, at 349-360
187. See supra notes 114-115 and accompanying text
188. See Lioyd Cohen, Holdouts and Free Riders, 20 J. LEGAL STUD. 351 (1991).
189. See, e.g., Lee Anne Fennell, Taking Eminent Domain Apart, 2004 MICH. ST. L. REV. 957, 995-1002.
190. See E. AIXAN FARNSWORTH, CONTRACTS §12.4, at 768 (3d ed. 1999) ("Only for land, which English courts regarded with particular esteem, was a general exception made [in remedies for breach of contract], on the ground that each parcel of land was 'unique' so money damages were inadequate.").
191. See, e.g., Conway v. White, 9 F.2d 863, 866 (2d Cir. 1925) ("It is of course wellsetded law that a contract to sell or transfer a patented right, like a contract to sell real estate, may be specifically enforced. The reason is that there is no accurate measure of damages, and a pecuniary payment is inadequate relief.").
192. Cohen, supra note 34, at 364.
193. Id.
194. See supra notes 65-67 and accompanying text.
195. Cohen, supra note 34, at 364.
196. See, e.g., W.T.JONES, THE CLASSICAL MIND 153 (2d ed. 1970) (explaining that the goal of Plato's moral philosophy was to "show that values are objective facts about the universe and that knowledge of them is possible").
197. See supra notes 65-68 and accompanying text.
198. Cohen, supra note 34, at 364.
199. U.S. Patent No. 360,070 (filed Nov. 19,1886) (issued Mar. 29,1887).
200. U.S. Patent No. 3,633 (issued June 15,1844).
201. U.S. Patent No. 4,750 (issued Sept. 10,1846).
202. U.S. Patent No. 223,898 (filed Nov. 4,1878) (issued Jan. 27,1880).
203. The following four paragraphs are based on the author's arguments in Locke's Labor Lost, supra note 91, at 159-161
204. The study of Locke and other natural law philosophers was fundamental to a legal education in the early American Republic.
205. See 1 DAVID HOFFMAN, A COURSE OF LEGAL STUDY 59-63 (2d ed. 1836) (identifying texts by Aristotle, Cicero, Seneca, Grotius, Puffendorf, Locke, and others as essential subjects of study in a legal education);
206. Louis D. Brandeis, The Harvard Law School, 1 GREEN BAG 10, 14 (1889) (discuss ing Justice Joseph Story's appointment as a professor at Harvard Law School in 1829 to teach, among other subjects, a course in "The Law of Nature"), reprinted in 11 GREEN BAG 2D 483, 489-90 (2008);
207. James Kent A Lecture, Introductory to a Course of Law Lectures in Columbia College (Feb. 2, 1824), in THE LEGAL MIND IN AMERICA 92, 10001 (Perry Miller ed., 1962) (identifying "the learned Grotius," as well as "Puffendorf, Barbeyrac, Bynkershoeck, Burlemaqui, Wolfius, Vattel, Heineccius, Montesquieu, Rutherforth, and Martens," as the scholars whom law students should study in preparing for a career in the law (italics omitted)).
208. See LOCKE, supra note 21, at 288 ("Whatsoever then he removes out of the State that Nature hath provided, and left it in, he hath mixed his Labour with, and joyned to it something that is his own, and thereby makes it his Property").
209. Id. at 286-91,294-300.
210. Id. at 298 (emphasis omitted).
211. Id. at 271.
212. JOHN LOCKE, Labour (1693), reprinted in POLITICAL ESSAYS 326, 328 (Mark Goldie ed., 1997).
213. JOHN LOCKE, Of the Conduct of the Understanding, in SOME THOUGHTS CONCERNING EDUCATION AND OF THE CONDUCT OF THE UNDERSTANDING 163, 215 (Ruth W. Grant & Nathan Tarcov eds., 1996);
214. see also JOHN LOCKE, Some Thoughts Concerning Reading and Study for a Gentleman (1703), reprinted in SOME THOUGHTS CONCERNING EDUCATION AND OF THE CONDUCT OF THE UNDERSTANDING, supra, at 348.
215. LOCKE, supra note 21, at 296.
216. Id. at 298.
217. Id.
218. Id.
219. This also suggests that labor creates the conditions by which men can rise above subsistence-level living in the state of nature and thereby transcend the "enough and as good" proviso on original acquisition.
220. See, e.g., id at 294 ("[H]e who appropriates land to himself by his labour, does not lessen but increase the common stock of mankind.").
221. See 1 HUGO GROTIUS, DE JURE PRAEDAE COMMETARIUS [COMMENTARY ON THE LAW OF PRIZE AND BOOTY] 227-28 (Gwladys L. Williams & Walter H. Zeydel trans., Oxford University Press 1950) (1604) (agreeing with Horace, Cicero, and Seneca that in the early stages of the state of nature "there were no commercial transactions");
222. see also id. at 230 ("At a subsequent stage in the evolution of property,... commerce began to be widely practised.").
223. See LOCKE, supra note 21, at 300-301 (recognizing that after producing the items necessary to live, "thus came in the use of Money, some lasting thing that Men might keep without spoiling, and that by mutual consent Men would take in exchange for the truly useful").
224. Id. at 301-302
225. This is a rhetorical move that has a long pedigree in intellectual debate. In fact, Locke has no grounds to complain, because he uses this technique in the First Treatise against his own seventeenth-century antagonist, Robert Filmer, a proponent of the political theory of the divine right of kings. See Peter Laslett, Introduction to LOCKE, supra note 21, at 69 ("Not only did Locke refuse to meet Filmer on his own ground, and fail to recognize the full strength, antiquity and importance of the patriarchal tradition, he persistently ignored the searching counter-criticisms which are the strength of Filmer's case." (footnote omitted)).
226. See JAMES L. HUSTON, SECURING THE FRUITS OF LABOR 17 (1998) ("[T]he American Revolution was virtually built on the labor theory of property/value."); Underkuffier, supra note 98, at 133-42 (discussing the substantial influence of Locke's conception of property on early American property jurisprudence).
227. See DANIEL J. BOORSTIN, Preface to the Beacon Press Edition of THE MYSTERIOUS SCIENCE OF THE LAW (Beacon Press 1958) (1941)
228. ("In the history of American institutions, no other book - except the Bible - has played so great a role as Blackstone's Commentaries on the Laws of England."); CLINTON ROSSTTER, SEEDTIME OF THE REPUBUC 141 (1953)
229. ("No one can spend any time in the newspapers, library inventories, and pamphlets of colonial America without realizing that Cato's Letters rather than Locke's Civil Government was the most popular, quotable, esteemed source of political ideas in the colonial period."). The influence of Locke on Cato's Letters is undeniable. See 1 JOHN TRENCHARD & THOMAS GORDON, CATO'S LETTERS 427 (Ronald Hamowy ed., 1995)
230. (Letter No. 62, Jan. 20, 1721) ("By liberty, I understand the power which every man has over his own actions, and his right to enjoy the fruit of his labour, art, and industry .... And dius ... every man is sole lord and arbiter of his own private actions and property."). The same is true of Blackstone. See generally 1 WILLIAM BLACKSTONE, COMMENTARIES *1-115 (citing Grotius, Pufendorf, and Locke repeatedly in discussing how natural rights, including property, arise in the state of nature and how society is formed to secure these rights).
231. See supra note 114 and accompanying text.
232. See generally Richard A Posner, Utilitarianism, Economics, and Legal Theory, 8 J. LEGAL STUD. 103 (1979).
233. See generally RICHARD A POSNER, OVERCOMING LAW 11 (1995) (defining his pragmatic theory of law as "practical, instrumental, forward-looking, activist, empirical, skeptical, antidogmatic, [and] experimental").
234. See Richard A Posner, Pragmatic Adjudication, 18 CARDOZO L REV. 1, 14-15 (1996) (discussing myriad normative questions raised by a life sentence of a sixteenyear-old for the sale of a single marijuana cigarette);
235. see also Martha Minow, Religion and the Burden of Proof : Posner's Economics and Pragmatism in Metzl v. Leininger, 120 HARV. L. REV. 1175, 1176-79 (2007) (describing the "overlap" in the domains of pragmatism and economics, and how the latter now serves the former in Posner's mature theory of adjudication).
236. AYN RAND, The Objectivist Ethics, in THE VIRTUE OF SELFISHNESS 13, 15 (1964).
237. See TARA SMITH, VIABLE VALUES ch. 4 (2000).
238. See Ayn Rand, What is Capitalism?, in CAPITALISM: THE UNKNOWN IDEAL 11, 26 (1967) ("The economic value of a man's work is determined, on a free market, by a single principle: by the voluntary consent of diose who are willing to trade him their work or products in return.").
239. See supra notes 73-77 and accompanying text.
240. See supra notes 67-68 and accompanying text.
241. See supra note 55 and accompanying text.
242. LOCKE, supra note 21, at 325 (emphasis omitted).
243. See id. at 301 (observing that the creation of large cattle ranches in America would not occur "where [one] had no hopes of Commerce with other Parts of the World, to draw Money to him by the Sale of the Product").
244. See generall JAMES M. ACHESON, THE LOBSTER GANGS OF MAINE (1988).
245. See ROBERT C. ELLICKSON, ORDER WITHOUT LAW: HOW NEIGHBORS SETTLE DISPUTES (1991).
246. See supra notes 69-76 and accompanying text.
247. See supra notes 41-42 and accompanying text.
248. But see Gary Lawson, The Rise and Rise of the Administrative State, 107 HARV. L. REV. 1231, 1231 (1994) ("The post-New Deal administrative state is unconstitutional, and its validation by the legal system amounts to nothing less than a bloodless constitutional revolution." (footnoteomitted)).
249. See, e.g., Mossoff, supra note 108, at 711-24.
250. See Arti K. Rai, Engaging Facts and Policy: A Multi-Institutional Approach to Patent System Reform, 103 COLUM. L. REV. 1035, 1075 (2003) ("A policy of deference to PTO fact finding in the context of patent denials may also discipline any institutional tendency that the Federal Circuit has towards pro-patent bias."). To be fair, Professor Rai highlights some policy concerns with treating the PTO exactly on par with other administrative agencies, see id. at 1132-33, but her criticisms here are entirely contingent insofar as they are based on the PTO's current institutional structure. Thus, for instance, her concern that the PTO has not hired any economists to assist it with costbenefit analysis of its rule changes, see id. at 1133, can be addressed with appropriate legislation from Congress.
251. See Ghosh, supra note 3, at 1388 ("Just as securities regulation is designed to promote investment in securities markets, so too should regulatory patent law... be designed to promote trust in the process of innovation in new technologies.").
252. Cohen, supra note 55, at 817.
253. See generally Robert L. Hale, Coercion and Distribution in a Supposedly Non-Coercive State, 38 POL Sa. Q. 470 (1923).
254. Cohen, supra note 55, at 816.
255. See Cohen, supra note 43, at 12 ("The character of property as sovereign power compelling service and obedience may be obscured for us in a commercial economy by the fiction of the so-called labor contract as a free bargain and by the frequency with which service is rendered indirectly through a money payment"); Hamilton, supra note 53, at 877 ("The coming of industrialism left its impact upon the words of Locke. It separated the laborer from the instruments of production, articulated establishments into an industrial system, and enabled a capitalistic ownership to come into the repute of a personalized property.... [T] he property of the Reports is not a proprietary thing; it is rather a shibboleth in whose name the domain of business enterprise has enjoyed a limited immunity from the supervision of the state.").
256. Rai, supra note 182, at 1110.
257. Cohen, supra note 55, at 817.
258. Theodore Roosevelt, The New Nationalism, Speech Delivered in Osawatomie, Kansas (Aug. 31, 1910), in THEODORE ROOSEVELT, AN AMERICAN MIND 139, 146 (Mario R. DiNunzio ed., 1994).
259. See, e.g., Lochner v. New York, 198 U.S. 45 (1905) (invalidating labor regulation in the baking industry).
260. Roosevelt supra note 190, at 146.
261. Id. at 149; see also Cohen, supra note 43, at 30 (asserting that "we need a certain liberal insight into the more intangible desires of the human heart" in order to "promote a better communal life").
262. Compare Gary Lawson, Delegation and Original Meaning, 88 VA. L. REV. 327, 332 (2002)
263. ("Sophisticated academics can decry the naivety of a bench, bar, and public that stubbornly cling to a model that legal events have long since left behind, but to abandon openly the nondelegation doctrine is to abandon openly a substantial portion of the foundation of American representative government"), with Cass R. Sunstein, Constitutionalism After the New Deal, 101 HARV. L. REV. 421, 494 (1987) ("A general revival of the nondelegation doctrine would also be a mistake in light of a range of considerations: good reasons support the delegation of discretion, standards can be extrapolated from seemingly vague statutes, judicial administration of a nondelegation principle would be both difficult and intrusive, and surrogate safeguards are available." (footnotes omitted)).
264. In modern scholarship, one oft-cited text discussing the intersection of property and constitutional law is Bruce Ackerman's Private Property and the Constitution, supra note 25, but its omnipresence in law journal footnotes is a testament to its status as one of the few monographs on this topic. Since its publication, a few more scholars have addressed the topic and have engaged Professor Ackerman.
265. See generaUy JAMES W. ELY, JR., THE GUARDIAN OF EVERY OTHER RIGHT: A CONSTITUTIONAL HISTORY OF PROPERTY RIGHTS (3d ed. 2008);
266. RICHARD A EPSTEIN, SUPREME NEGLECT: HOW TO REVIVE CONSTITUTIONAL PROTECTION FOR PRIVATE PROPERTY (2008);
267. RICHARD A EPSTEIN, TAKINGS: PRIVATE PROPERTY AND THE POWER OF EMINENT DOMAIN (1985).
268. Andrew J. Cappel, Note, A Walk Along Willow: Patterns of Land Use Coordination in Pre-Zoning New Haven (1870-1926), 101 YALE L.J. 617, 635 (1991) (emphases added) (footnotes omitted).
269. Id. at 634.
270. SIVA VAIDHYANATHAN, COPYRIGHTS AND COPYWRONGS: THE RISE OF INTELLECTUAL PROPERTY AND HOW IT THREATENS CREATIVITY 15 (2001).
271. He has argued elsewhere that "[c]opyright is not about 'property' as commonly understood. It is a specific state-granted monopoly issued for particular policy reasons." Siva Vaidhyanathan, Copyright as Cudgel, CHRON. HIGHER EDUC., Aug. 2, 2002, at B7, B9, available at http://chronicle.com/free/ v48/i47/47b00701.htm.
272. See Tom W. Bell, Authors' Welfare: Copyright as a Statutory Mechanism for Redistributing Rights, 69 BROOK. L. REV. 229 (2003).
273. See Pamela Samuelson, Toward a "New Deal" for Copyright in the Information Age, 100 MICH. L. REV. 1488 (2002) (book review).
274. Mark Lemley, Property, Intellectual Property, and Free Riding, 83 TEX. L. REV. 1031, 1032 (2005).
275. See Stuart Minor Benjamin & Arti K. Rai, Fixing Innovation Policy: A Structural Perspective, 77 GEO. WASH. L. REV. (forthcoming 2009) (manuscript at 105-07), available at http://ssrn.com/abstract-1259850.
276. See Brief for Intellectual Property, Administrative Law, and Public Health Professors as Amici Curiae Supporting Defendants at 2-4, Tafas v. Dudas, 541 F. Supp. 2d 805 (E.D. Va. 2008) (No. 07-0846), rev'd sub nom. Tafas v. Doll, No. 08-1352, 2009 WL 723353 (Fed. Cir. Mar. 20, 2009).
277. See supra Section II.B.
278. See Mossoff, supra note 91, at 156-63 (discussing Waldron's and Nozick's misunderstanding of Locke's property theory).
279. See, e.g., Gregory S. Alexander, Commentary, The Ambiguous Work of "Natural Property Rights, " 9 U. PA. J. CONST. L. 477, 478-81 (2007)
280. (restating the postrealist critique of natural property rights theory as "indeterminate" and "ambiguous"); Abraham Bell & Gideon Parchomovsky, Reconfiguring Property in Three Dimensions, 75 U. CHI. L. REV. 1015, 1023 (2008) (asserting that in legal doctrine, "the surface attractiveness of the Blackstonian ideal breaks down" as the conception of property, because "providing a single owner with absolute dominion over a tiling often proves unreachable, leaving owners and the policymakers the challenge of maximizing property value");
281. Amnon Lehavi, Mixing Property, 38 SETON HALL L. REV. 137, 211 (2008) ("As Carol Rose has demonstrated, even William Blackstone's famous depiction of private property as endowing absolute rights was more wishful thinking than a depiction of the doctrinal reality of his time - an anxiety-relieving rhetoric of clarity uttered against a complex background of overlapping interests and mixed societal values.").
282. See Liam Séamus O'Melinn, Software and Shovels: How the Intellectual Property Revolution is Undermining Traditional Concepts of Property, 76 U. CIN. L. REV. 143, 148 (2007) (claiming that "Locke's theory does not accord with either copyright or patent law");
283. cf. Tom W. Bell, Indelicate Imbalancing in Copyright and Patent Law, in COPY FIGHTS: THE FUTURE OF INTELLECTUAL PROPERTY IN THE INFORMATION AGE 1, 4 (Adam Thierer & Clyde Wayne Crews Jr. eds., 2002) ("More pointedly, copyright and patent protection contradicts Locke's justification of property.").
284. See Hamilton, supra note 53, at 875 (foreshadowing modern criticism of Lockean property theory for being indeterminate given that "[t]he conversion of the prophetic narrative of a neocanonist into a chronicle of the emergence of a legal institution is no automatic task").
285. See, e.g., Mossoff, supra note 107, at 967-76 (identifying modern scholars' misunderstanding of the natural rights term of art "privilege" as it was used in antiquarian legal texts).
286. See, e.g, ROÑAN DEAZLEY, RETHINKING COPYRIGHT 144 n.32 (2006) ("Locke himself did not consider his theory of property extended to inteUectual properties such as copyrights and patents.") ;
287. Lior Zemer, The Making of a New Copyright Lockean, 29 HARV. J.L. & PUB. POL'Y 891, 894 (2006) (describing how copyright scholars "claim that Locke does not, either in the Two Treatises or elsewhere, address the issues of the intellectual commons, intellectual property in general, or copyright in particular").
288. LOCKE, supra note 21, at 298-99.
289. JOHN LOCKE, Liberty of the Press, reprinted in SOME THOUGHTS CONCERNING EDUCATION AND OF THE CONDUCT OF THE UNDERSTANDING, supra note 151, at 329, 337;
290. see ato Justin Hughes, Copyright and Incomplete Historiographies: Of Piracy, Propertization, and Thomas Jefferson, 79 S. CAL. L. REV. 993, 1012 (2006) (discussing the memorandum in which Locke makes this argument).
291. LOCKE, supra note 212, at 338.
292. See supra Section II.B.
293. Duffy, supranote 1, at 1071.
294. See, e.g, Zoltek Corp. v. United States, 442 F.3d 1345, 1352 (Fed. Cir. 2006) (holding that patents are not constitutional private property within the ambit of the Takings Qause because "patent rights are a creature of federal law").
295. Hamilton, supra note 53, at 880.
296. Charles A Reich, The New Property, 73 YALE L.J. 733, 771 (1964).