Constitutional Law
Patriotism for Profit and Persuasion: The Trademark, Free Speech, and Governance Problems with Protection of Governmental Marks in the United States, Trademark Reporter (2010)
“Governmental marks” are words or phrases which involve the identity of a social group that...
The Unaffordable Cost of Not Having Positive Rights, A United States Perspective, Charleston L. Rev. (2008)
This is an updated version of the book chapter published in Brazil earlier in 2008....
A Listener’s Free Speech, A Reader’s Copyright, Hofstra Law Review (2007)
Despite the Supreme Court’s repeated use of free speech doctrine to derail media reforms, some...
eBay Inc. v. MercExchange, LLC , U.S. Supreme Court (2006)
Brief argues that Constitution and public policy support a presumption against graniting injunctive relief to...
Dampening the Illegitimacy of the United States' Government: Reframing the Constitution from Contract to Promise, Idaho Law Review (2005)
Realistic political philosophers working in the United States face a serious problem. The public accepts...
MGM v. Grokster, U.S. Supreme Court (2004)
This brief makes three aguments against copyright liability for Grokster. First, Petitioners’ request to close...
The Democratic Public Domain: Reconnecting the Modern First Amendment and the Original Progress Clause (a.k.a. Copyright and Patent Clause), Jurimetrics (2004)
Empirical investigation of public usage of the word "progress" in the United States of 1789...
Dastar Corp. v. 20th Century Fox Film Corp., filed with U.S. Supreme Court (2003)
Amicus brief filed in support of Dastar regarding use of Lanham Act to stop distribution...
Dealing with Old Father William, or Moving from Constitutional Text to Constitutional Doctrine: Progress Clause Review of the Copyright Term Extension Act, Loyola of Los Angeles L. Rev. (2002)
The author suggests a textual approach to the choice of review standards for statutes enacted...
What Is Congress Supposed to Promote? Defining ‘Progress” in Article I, Section 8, Clause 8 of the U.S. Constitution, or Introducing the Progress Clause, Nebraska L. Rev. (2002)
Empirical reserach into ratification-era uses of the word "progress" in the United States demonstrates that...
The Multiple Unconstitutionality of Business Method Patents: Common Sense, Congressional Choice, and Constitutional History, Rutgers Computer & Tech. L.J. (2002)
Business method patents are of sufficiently doubtful constitutionality that the Supreme Court should either render...
Eldred v. Ashcroft, U.S. Supreme Court (2002)
Brief argues that statutes passed subject to the Progress Clause (also known as the Intellectual...
Purveyance and Power or Over-Priced Free Lunch: The Intellectual Property Clause as an Ally of the Takings Clause in the Public’s Control of Government, Southwestern Univ. L. Rev. (2001)
Government can bypass citizen control if it can use revenue not publicly scrutinized through the...
J.E.M. Ag Supply v. Pioneer, U.S. Supreme Court (2001)
Brief argues against allowing utility patents on plants reproduced from seed without a clearer statement...
TrafFix Devices v. Marketing Displays, U.S. Supreme Court (2000)
Brief argues against allowing extension of utility patent through trade dress protection. Opinion at 523...
Veeck v. SBCCI, 5th Cir. (2000)
Brief argues against copyright in enacted statutes which are identical in wording to privately authored...
The Right to Know?: Delimiting Database Protection at the Juncture of the Commerce Clause, the Intellectual Property Clause, and the First Amendment, Cardozo Arts & Ent. L.J. (1999)
The people of the United States have a constitutional right to know; the government has...
Prayer in Public Schools: Without Heat, How Can There Be Light?, or Narrative as the Reasonable Way to Discuss the Arational. Report on the Second Annual Law Day Symposium Jointly Sponsored by the Center for First Amendment Rights and the University of Connecticut School of Law, Quinnipiac L. Rev. (1996)
Prayer in public schools cannot be discussed fully without recognizing the high emotions tied to...
Unconstitutional Incontestability?: The Intersection of the Intellectual Property and Commerce Clauses of the Constitution: Beyond a Critique of Shakespeare Co. v. Silstar Corp., Univ. of Seattle L. Rev. (1995)
This article makes several assertions: (1) The Intellectual Property Clause of the Constitution, even read...
Intellectual Property Law
Reclassifying Reverse Passing Off as Failure to Contract or as False Advertising, BU J. of Sci & Tech. Law (2011)
The tort of reverse passing off should be abolished. This conclusion stems from a combination...
Patriotism for Profit and Persuasion: The Trademark, Free Speech, and Governance Problems with Protection of Governmental Marks in the United States, Trademark Reporter (2010)
“Governmental marks” are words or phrases which involve the identity of a social group that...
Teaching Intellectual Property as a Skills Course , American Justice Law Review (2007)
Students can gain experience in practical skills in substantive courses if professors spend the time...
A Listener’s Free Speech, A Reader’s Copyright, Hofstra Law Review (2007)
Despite the Supreme Court’s repeated use of free speech doctrine to derail media reforms, some...
Callmann on Unfair Competition, Trademarks, and Monopolies (Westlaw database CALLMANN) (with Louis Altman) (2007)
Rebalancing Section 512 to Protect Fair Users from Herds of Mice-Trampling Elephants, or a Little Due Process Is Not Such a Dangerous Thing, Santa Clara Comp. & High Tech. L.J. (2006)
I agree with the basic concept of 17 U.S.C. § 512; to protect Internet functionality,...
Towards a Feminist Theory of the Public Domain, or The Gendered Scope of United States’ Copyrightable and Patentable Subject Matter, William & Mary J. of Women and the Law (2006)
Feminism does not speak with a single voice. Each voice tells a different story. These...
eBay Inc. v. MercExchange, LLC , U.S. Supreme Court (2006)
Brief argues that Constitution and public policy support a presumption against graniting injunctive relief to...
Originalism, J.E.M., and the Food Supply, or Will the Real Decision Maker Please Stand Up?, J. of Environmental Law & Litigation (2005)
In 2001, the United States Supreme Court decided that sexually reproduced plants (which include major...
MGM v. Grokster, U.S. Supreme Court (2004)
This brief makes three aguments against copyright liability for Grokster. First, Petitioners’ request to close...
The Democratic Public Domain: Reconnecting the Modern First Amendment and the Original Progress Clause (a.k.a. Copyright and Patent Clause), Jurimetrics (2004)
Empirical investigation of public usage of the word "progress" in the United States of 1789...
KP Permanent Make-up v. Lasting Impression, U.S. Supreme Court (2004)
Brief argues for allowing fair use defense in trademark despite existence of likelihood of confusion....
Dastar Corp. v. 20th Century Fox Film Corp., filed with U.S. Supreme Court (2003)
Amicus brief filed in support of Dastar regarding use of Lanham Act to stop distribution...
Dealing with Old Father William, or Moving from Constitutional Text to Constitutional Doctrine: Progress Clause Review of the Copyright Term Extension Act, Loyola of Los Angeles L. Rev. (2002)
The author suggests a textual approach to the choice of review standards for statutes enacted...
What Is Congress Supposed to Promote? Defining ‘Progress” in Article I, Section 8, Clause 8 of the U.S. Constitution, or Introducing the Progress Clause, Nebraska L. Rev. (2002)
Empirical reserach into ratification-era uses of the word "progress" in the United States demonstrates that...
The Multiple Unconstitutionality of Business Method Patents: Common Sense, Congressional Choice, and Constitutional History, Rutgers Computer & Tech. L.J. (2002)
Business method patents are of sufficiently doubtful constitutionality that the Supreme Court should either render...
Moseley v. V Secret Catalogue, U.S. Supreme Court (2002)
Brief argues that Lanham Act requires actual dilution. Opinion at 123 S. Ct. 1115 (2003)....
Eldred v. Ashcroft, U.S. Supreme Court (2002)
Brief argues that statutes passed subject to the Progress Clause (also known as the Intellectual...
Purveyance and Power or Over-Priced Free Lunch: The Intellectual Property Clause as an Ally of the Takings Clause in the Public’s Control of Government, Southwestern Univ. L. Rev. (2001)
Government can bypass citizen control if it can use revenue not publicly scrutinized through the...
J.E.M. Ag Supply v. Pioneer, U.S. Supreme Court (2001)
Brief argues against allowing utility patents on plants reproduced from seed without a clearer statement...
The Owned Public Domain: The Constitutional Right Not To Be Excluded – Or the Supreme Court Chose the Right Breakfast Cereal in Kellogg v. National Biscuit Co., Hastings Comm/Ent (2000)
Before the rise of law and economics, the Supreme Court decided several cases involving patent...
TrafFix Devices v. Marketing Displays, U.S. Supreme Court (2000)
Brief argues against allowing extension of utility patent through trade dress protection. Opinion at 523...
Southco v. Kanebridge, 3rd Cir. (2000)
Brief arguing against copyright protection for parts numbers. Opinion 258 F.3d 148 (3rd Cir. 2001);...
Veeck v. SBCCI, 5th Cir. (2000)
Brief argues against copyright in enacted statutes which are identical in wording to privately authored...
The Right to Know?: Delimiting Database Protection at the Juncture of the Commerce Clause, the Intellectual Property Clause, and the First Amendment, Cardozo Arts & Ent. L.J. (1999)
The people of the United States have a constitutional right to know; the government has...
Time to Dilute the Dilution Statute and What Not to Do When Opposing Legislation: Beyond a Comment on Professor Port's The "Unnatural" Expansion of Trademark Rights: Is a Federal Dilution Statute Necessary?, J. Pat. & Trademark Off. Soc’y (1996)
This article has three goals: to state clearly the practical problems with the Federal Trademark...
Unconstitutional Incontestability?: The Intersection of the Intellectual Property and Commerce Clauses of the Constitution: Beyond a Critique of Shakespeare Co. v. Silstar Corp., Univ. of Seattle L. Rev. (1995)
This article makes several assertions: (1) The Intellectual Property Clause of the Constitution, even read...
A Rose Is a Rose Is a Rose--But Is a Costume a Dress?, J. Copyright Soc’y of the U.S.A. (1994)
Law differs from life. If a judge, or more importantly a justice, calls a tail...
Your Image Is My Image: When Advertising Dedicates Trademarks to the Public Domain--With an Example from the Trademark Counterfeiting Act of 1984, Cardozo L. Rev. (1993)
Trademark laws protect the mental association between the source n4 of a product and the...
The Author in Copyright: Notes for the Literary Critic (with Monroe Price), Cardozo Arts & Ent. L.J. (1992)
This article discusses disparate approaches to the under-theorized concept of authorship in American copyright jurisprudence....
Intellectual Property Protection for the Creative Chef, or How to Copyright a Cake: A Modest Proposal, Cardozo L. Rev. (1991)
This Note presents an original proposal for extending copyright protection to food (not to the...
Teaching
Teaching Intellectual Property as a Skills Course , American Justice Law Review (2007)
Students can gain experience in practical skills in substantive courses if professors spend the time...
Internet
A Listener’s Free Speech, A Reader’s Copyright, Hofstra Law Review (2007)
Despite the Supreme Court’s repeated use of free speech doctrine to derail media reforms, some...
Opt-In Government: Using the InterNet to Empower Choice – Privacy Application, Catholic Univ. L. Rev. (2001)
This article proposes a relatively novel model of government regulation and illustrates how the model...
Comment to FTC on Ecommerce (1999) (1999)
Comment on Ecommerce submitted to FTC suggesting an opt-in government program for finding web sites...
Legal History
Purveyance and Power or Over-Priced Free Lunch: The Intellectual Property Clause as an Ally of the Takings Clause in the Public’s Control of Government, Southwestern Univ. L. Rev. (2001)
Government can bypass citizen control if it can use revenue not publicly scrutinized through the...
Death Penalty
The Underfunded Death Penalty: Mercy as Discrimination in a Rights Based System of Justice, UMKC L. Rev. (1998)
This paper suggests that the relationship between justice and mercy is dependent on the system...
Media Regulation
A Listener’s Free Speech, A Reader’s Copyright, Hofstra Law Review (2007)
Despite the Supreme Court’s repeated use of free speech doctrine to derail media reforms, some...
Comment to FCC on Media Ownership Rules (2007)
Comment Submitted Jan. 2007 in Media Ownership Rules Docket.
Governance
Patriotism for Profit and Persuasion: The Trademark, Free Speech, and Governance Problems with Protection of Governmental Marks in the United States, Trademark Reporter (2010)
“Governmental marks” are words or phrases which involve the identity of a social group that...
The Unaffordable Cost of Not Having Positive Rights, A United States Perspective, Charleston L. Rev. (2008)
This is an updated version of the book chapter published in Brazil earlier in 2008....
The Unaffordable Cost of Not Having Positive Rights, A United States Perspective (in English, published in Portuguese), DIREITO FUNDAMENTAIS, ORÇAMENTO E RESERVA DO POSSÍVEL (The Cost of Rights) (2008)
Despite the high value of advanced economic theory and the enviable wealth of the United...
Warning! Experts May Be Hazardous To Your Health, Dartmouth Law Journal (2008)
The academy is now emphasizing inter-disciplinary scholarship and decision-making, especially the use of science to...