Should copyright infringement claims be treated as marketable assets? Copyright law has long emphasized the free and independent alienability of its exclusive rights. Yet, the right to sue for infringement—which copyright law grants authors in order to render its exclusive rights operational—has never been thought of as independently assignable, or indeed as the target of investments by third parties. As a result, discussions of copyright...
Essay
Since it was decided in 2003, Lawrence v. Texas has underwritten the effort to expand access to marriage to same-sex couples. It is curious that Lawrence has served as a foundation for same-sex marriage. After all, Lawrence was not a case about marriage—same-sex or otherwise. Instead, Lawrence was a case about criminal sex and more specifically about limiting the state’s authority to regulate and...
The property–information interface is perhaps the most crucial and undertheorized dimension of property law. Information about property can make or break property rights. Information about assets and property rights can dramatically enhance the value of ownership. Conversely, a dearth of information can significantly reduce the benefits associated with ownership. It is surprising, therefore, that contemporary property theorists do not engage...
This Essay provides a new framework for criticizing originalism or its alternatives—the framework of positive law.
Existing debates are either conceptual or normative: They focus either on the nature of interpretation and authority, or on originalism’s ability to serve other values, like predictability, democracy, or general welfare. Both sets of debates are stalled. Instead, we ought to ask: Is originalism our law? If not, what...