Journal of Intellectual Property Law & Practice最新文献

{"title":"Ad Coelum and the Design of Property Rights","authors":"Joseph A. Schremmer","doi":"10.37419/jpl.v9.i4.11","DOIUrl":"https://doi.org/10.37419/jpl.v9.i4.11","url":null,"abstract":"This Article seizes on a specific doctrinal discussion in Eric Claeys’s Natural Property Rights to argue for the importance of understanding property doctrines in the context of a system of interconnecting rules and standards and not in isolation. The ad coelum doctrine provides that land ownership entails ownership of the suprajacent airspace as well as the underlying subsurface. As Claeys’s discussion highlights, scholars disagree about the significance of ad coelum both conceptually, as to what function the rule serves in defining and allocating property, and normatively. It is only by viewing ad coelum in the context of how it interacts with various other doctrines—as a cog in a complex machine that serves larger purposes—that a comprehensive conceptual and normative account of the doctrine emerges. Natural Property Rights presents such an account of ad coelum and many other doctrines by attending to both the details of property law’s rules and the body of property law as a system with a larger purpose. In this way, Claeys’s Natural Property Rights is praiseworthy for its approach.","PeriodicalId":44529,"journal":{"name":"Journal of Intellectual Property Law & Practice","volume":"38 10S 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2023-05-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"135337767","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Natural Property Rights: A Reply","authors":"Eric R. Claeys","doi":"10.37419/jpl.v9.i4.14","DOIUrl":"https://doi.org/10.37419/jpl.v9.i4.14","url":null,"abstract":"This Reply concludes the symposium hosted by the Texas A&M University Journal of Property Law on the author’s forthcoming book Natural Property Rights. The Reply shows how natural law and rights apply to a wide range of doctrinal examples raised in this symposium—including business associations, correlative oil rights, timber extraction, sinking coastlands, water law, nuisance law, property rights in subsurface minerals, and the issues about sovereignty and property disposition associated with Johnson v. M’Intosh (1823). The Reply also addresses a wide range of skeptical objections to natural law—especially the arguments that it relies too much on intuitions and not enough on hard empirical data. The Reply responds to objections to natural rights familiar from law and economic scholarship—and rehearses important but often-neglected reasons why economic analysis of law needs support from moral and political theory. And the Reply responds to criticisms of rights theories typical from Progressive property scholarship—and argues that a Lockean theory of rights is more sober and tougher-minded than Progressive theories are about whether and how much law can secure justice in practice.","PeriodicalId":44529,"journal":{"name":"Journal of Intellectual Property Law & Practice","volume":"21 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2023-05-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"135337771","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"The Natural Right of Property","authors":"Timothy Sandefur","doi":"10.37419/jpl.v9.i4.10","DOIUrl":"https://doi.org/10.37419/jpl.v9.i4.10","url":null,"abstract":"This Article offers a critical examination of Eric Claeys’s argument for natural property rights, focusing in particular on the questions of self-ownership and the so-called “Lockean proviso.” It argues that while Claeys is generally on the right track in his argument for natural property rights, he errs in omitting a self-ownership argument, some version of which is necessary for a proper naturalistic account of property, and that the Lockean proviso is neither necessary for such an account nor defensible in its own right. I conclude that the concerns animating the Lockean proviso argument are adequately dealt with by an alternative argument: that one has a right to equal participation in an existing property rights scheme.","PeriodicalId":44529,"journal":{"name":"Journal of Intellectual Property Law & Practice","volume":"38 10S 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2023-05-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"135337565","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Natural Law, Assumptions, and Humility","authors":"Ezra Rosser","doi":"10.37419/jpl.v9.i4.9","DOIUrl":"https://doi.org/10.37419/jpl.v9.i4.9","url":null,"abstract":"This review of Natural Property Rights celebrates Eric Claeys’s efforts to resuscitate natural law as a viable approach to property law. Although readers unlikely to be convinced that natural law is the way to best understand property rights, Claeys succeeds in breathing new life into natural law. Natural Property Rights’ emphasis on use as property law’s fundamental value creates space to reconceptualize the rights of property owners and the place of non-owners within a just theory of property rights. The main critiques of Natural Property Rights offered in this review center around the choice to prioritize rights over duties and the logically inconsistencies involved in Claeys’s attempts to defend the justice of non-Indian claims to land that had belonged to Indian nations.","PeriodicalId":44529,"journal":{"name":"Journal of Intellectual Property Law & Practice","volume":"17 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2023-05-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"135337948","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Balancing the Inequities in Applying Natural Property Rights to Rights in Real or Intellectual Property","authors":"Lolita Darden","doi":"10.37419/jpl.v9.i4.3","DOIUrl":"https://doi.org/10.37419/jpl.v9.i4.3","url":null,"abstract":"Eric Claeys’s book, Natural Property Rights, introduces a Lockean-based theory of interest-based natural property rights. Central to Claeys’s theory are the concepts of justified interests and productive use. A justified interest, Claeys writes, exists when an individual demonstrates a stronger interest in a resource than anyone else in the community and uses the resource productively in a manner that is “intelligent, purposeful, value-creating, . . . sociable,” and leads to survival or flourishing. Claeys’s theory demonstrates “how a standard justification for property gets implemented in practice” and how a community’s “goods” build on the individual’s goods. 
 Claeys’s community “goods” focus, however, is antithetical to a Lockean private property ownership theory, which prioritizes an individual’s interest, except for the provisos—no waste and enough and as good. Although Claeys adequately addresses the differences between his and Locke’s theories, Claeys’s regard for both community and individual interests causes one to question whether his theory is truly Lockean-based.
 Claeys’s book consists of four parts: Natural Law and Natural Rights (Part I), Property’s Foundations (Part II), Property Law (Part III), and Property in Law and Policy Generally (Part IV). This Article addresses Parts I and II and explores the defenses and justification for Claeys’s interest-based natural property rights theory under a Lockean framework. 
 This Article also addresses the defects in a Lockean natural rights theory, including Claeys’s application of that theory. Locke’s theory focuses on the natural rights of a specific community. Such a focus often disfavors people situated in out-of-power positions, for example, a land ownership dispute between indigenous people and recent immigrants that have organized themselves under laws that do not recognize the existing rights (natural or otherwise) of the indigenous people. Yet, both Claeys and Locke contend that natural rights emanate from a divine source (God) that intended humankind to use the things of nature for its survival and flourishing. But, when fundamentally different views exist concerning a resource’s ownership or productive use, rights conflicts arise. These conflicts often result in one community’s natural rights trampling another’s. This Article introduces a balancing interest test as a possible resolution to this conflict. The proposed balancing interest test seeks to maximize the common good in the most equitable way by finding an equitable mean between conflicting interests. Finally, this Article explores whether Claeys’s theory can justify natural property rights in intellectual property, specifically patents.","PeriodicalId":44529,"journal":{"name":"Journal of Intellectual Property Law & Practice","volume":"47 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2023-05-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"135337563","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"The Future of Natural Property Law: Comments on Eric Claeys’s Natural Property Rights","authors":"Christopher Serkin","doi":"10.37419/jpl.v9.i4.12","DOIUrl":"https://doi.org/10.37419/jpl.v9.i4.12","url":null,"abstract":"Professor Eric Claeys is among the most thoughtful modern proponents of natural property rights. His new book, provided to conference participants in draft form, is typical of his rigorously analytical approach. It is an impressive articulation of a natural rights-based account of property. It significantly advances the debate over natural rights and should be taken seriously even by those who do not find it entirely convincing.
 There are real-world political stakes in abstract-seeming questions of property theory because natural rights are often deployed to limit government regulation of property. Natural rights contrast with positivist accounts that locate the content of property rights in the substance of positive law. Where property rights come from the State, the State has broad authority to reconfigure those rights. Natural rights theorists, like Claeys, want property to be a bulwark against regulation and so insist that property has a pre-political core.
 That core is deeply contested, however. For rights to be “natural,” they must apply widely, if not universally, accepted, or at least be derivable in the abstract. To operate at this level, they generally underdetermine the substantive content of property law. Reasoning from natural rights, therefore, often devolves into contingent consequentialist or utilitarian arguments that look anything but natural.
 Often, natural law is deployed to rationalize existing legal doctrines and rights. But this can sometimes feel like a bit of a failure of imagination, assuming aspects of law are necessary or inherent when in fact, they may be quite contingent. If natural law reasoning can defend even dramatically different substantive property rights, it becomes worryingly thin as a justificatory enterprise. It risks sliding into outcome-driven and conclusory analyses.
 One way to explore the limits of natural rights reasoning is to see whether natural rights reasoning could be used to defend a radically different set of property institutions. Instead of looking anthropologically at different communities around the world or historically at different property arrangements in our own legal history, it is perhaps interesting—or at least entertaining—to consider how natural rights theorists in the future might defend a transformed property law. What follows, then, is a thought experiment—an Article from the perspective of a fictional future. It is intended to explore whether natural law actually imposes limits on the substantive content of imagined property rights of the future. If not, it should serve as a caution for the use of natural law to justify the property regime we have today.","PeriodicalId":44529,"journal":{"name":"Journal of Intellectual Property Law & Practice","volume":"32 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2023-05-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"135337772","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"How Far Does Natural Law Protect Private Property?","authors":"James W. Ely","doi":"10.37419/jpl.v9.i4.5","DOIUrl":"https://doi.org/10.37419/jpl.v9.i4.5","url":null,"abstract":"This Article first explores the ambiguous relationship between natural law and the rights of property owners in American history. It points out that invocation of natural law principles was frequently conflated with English common law guarantees of property rights in the Revolutionary Era. Reliance on natural law as a source of protection for private property faded during the nineteenth century and was largely rejected in the early twentieth century.
 The Article then considers the extent to which natural law principles are useful in addressing contemporary issues relating to eminent domain and police power regulation of private property. Taking a skeptical review, it concludes that natural law, standing alone, is largely theoretical and does not appear to offer meaningful guidance to current problems.","PeriodicalId":44529,"journal":{"name":"Journal of Intellectual Property Law & Practice","volume":"1 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2023-05-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"135337567","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Property and Moral Responsibilities: Some Reflections on Modern Catholic Social Theory","authors":"Lucia A. Silecchia","doi":"10.37419/jpl.v9.i4.13","DOIUrl":"https://doi.org/10.37419/jpl.v9.i4.13","url":null,"abstract":"Professor Eric Claeys’s forthcoming book, Natural Property Rights, offers a deep perspective on property rights principles. However, while the law tends to focus—as I believe it must—on property rights, rights are inextricably intertwined with duties or responsibilities. The natural rights framework for property is, as Claeys says, “good enough for government work.” It reflects a principled way for the government to allocate property rights and use the law to protect them.
 However, it is necessary to look beyond what is desirable for government to protect through law. Other sources propose parameters for reasoned use of property with an emphasis on duties. The Catholic social tradition offers a perspective on the moral duties and responsibilities that accompany property rights. This is not a substitute for natural property rights and their robust legal protection. Rather, it is a way to supplement legally defined rights with a moral perspective stressing the correlative duties and responsibilities that come with those rights. This paper argues that the more focus there is on a rights-based view of property from a legal perspective, the more important it is to look at moral frameworks to promote a healthy and holistic vision of property. Modern Catholic social theory offers just such a framework.","PeriodicalId":44529,"journal":{"name":"Journal of Intellectual Property Law & Practice","volume":"47 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2023-05-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"135337759","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Opus as the Core of Property","authors":"Adam MacLeod","doi":"10.37419/jpl.v9.i4.8","DOIUrl":"https://doi.org/10.37419/jpl.v9.i4.8","url":null,"abstract":"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.","PeriodicalId":44529,"journal":{"name":"Journal of Intellectual Property Law & Practice","volume":"66 1 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2023-05-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"135337960","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"A Bibliography of Key Final Agency Determinations of the United States Department of Agriculture Risk Management Agency","authors":"Chad Marzen","doi":"10.37419/jpl.v9.i2.3","DOIUrl":"https://doi.org/10.37419/jpl.v9.i2.3","url":null,"abstract":"This Article is the first law review article to comprehensively examine Final Agency Determinations (FADs) of the United States Department of Agriculture. A key part of the administrative process within the Risk Management Agency of USDA, FADs contribute to the interpretation and understanding of the Common Crop Insurance Policy, which is the federally-reinsured multi-peril insurance contract. This Article surveys ten of the most significant recent FADs and emphasizes the importance of FADs to litigated disputes between insurance providers and insureds with regard to the federal crop insurance program. Overall, understanding of FADs is critical for stakeholders with the multi-peril crop insurance program.","PeriodicalId":44529,"journal":{"name":"Journal of Intellectual Property Law & Practice","volume":"236 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2023-05-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"135145942","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}