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Article
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)
  • Malla Pollack, American Justice School of Law
Abstract

Government can bypass citizen control if it can use revenue not publicly scrutinized through the public taxing/spending system. One method of bypass is paying with non-monetary compensation such as (i) property, or (ii) the right to charge others for some necessary good or service, intangible property. The Takings/Just Compensation Clause of the Fifth Amendment is one authority controlling government's ability to bypass financial scrutiny. In this article, I argue that the Intellectual Property Clause also should be used to control some governmental bypass. I attempt to justify this suggestion both theoretically and historically. The historical material included focuses on English crown revenue sources and indirect payment of officials during the Elizabethan and early Stuart periods because Parliament's responses to related Crown abuses are the historical basis of the Intellectual Property Clause. In addition, I suggest that the same historical material counsels careful consideration before choosing to use economic incentives to motivate private entities to perform governmental functions.

Keywords
  • monopolies,
  • statute of monopolies,
  • intellecutal property,
  • copyright,
  • statutes,
  • purveyance,
  • regulation,
  • takings,
  • constitutuion,
  • privatization
Disciplines
Publication Date
October, 2001
Publisher Statement
Author holds copyright. Permission for any use is given in return for a citation.
Citation Information
Malla Pollack. "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. Vol. 30 (2001)
Available at: http://works.bepress.com/malla_pollack/14/