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Abstract:
Intellectual property scholars have begun to explore the curious dynamics of IP's negative spaces, areas in which IP law offers scant protection for innovators, but where innovation nevertheless seems to thrive. Such negative spaces pose a puzzle for the traditional theory of IP, which holds that IP law is necessary to create incentives for innovation.

This paper presents a study of one such negative space which has so far garnered some curiosity but little sustained attention - the world of performing magicians. This paper argues that idiosyncratic dynamics among magicians make traditional copyright, patent, and trade secret law ill-suited to protecting magicians' most valuable intellectual property. Yet, the paper further argues that the magic community has developed its own set of unique IP norms which effectively operate in law's absence. The paper details the structure of these informal norms that protect the creation, dissemination, and performance of magic tricks. The paper also discusses broader implications for IP theory, suggesting that a norm-based approach may offer a promising explanation for the puzzling persistence of some of IP's negative spaces.

intellectual property, copyright, patent, trade secret, IP, property, magic, magicians, magic tricks, norms, negative spaces

Abstract:
This article is the first piece of legal scholarship to address the land use issues associated with signs and billboards in a comprehensive and systematic manner. Although other scholars have addressed signs as a category of First Amendment law, the land use side of the sign issue has been neglected. Signs are a pervasive form of land use, and they pose distinctive practical and theoretical problems for land use law and policy. Yet, the land use literature has rarely treated signs as such. This article seeks to fill the void. The article has three principal aims. First, it provides a comprehensive history of sign and billboard disputes, using one city's century-long experience as a case study. The article relies on original research from primary sources to explain how and why patterns of sign land use and sign regulation have evolved over time. It pays special attention to the economics of signs and the public choice aspects of sign regulation. Secondly, the article uses lessons gleaned from this history to construct a framework for thinking about sign regulation. It examines how signs relate to concerns about nuisance, aesthetics, information, and expression. It also corrects certain conceptual mistakes made by judges and policymakers. Finally, the article evaluates the regulatory tools available for controlling sign land use. It critiques some common approaches to regulating signs, and it argues that sign regulation should embrace alternative regulatory tools, such as nuisance law and taxation, which have so far been underutilized and underappreciated.

Abstract:
United States v. Booker has reignited a long-smoldering debate over the crack sentencing ratio contained in the United States Sentencing Guidelines, which punishes crack offenders much more harshly than powder cocaine offenders. Courts disagree over whether Booker's standard of “reasonableness review” permits judges to categorically abandon the ratio. This article argues that it does not. In doing so, this article revises the traditional argument against the crack sentencing ratio and suggests that this revised argument can be accommodated by a new “structural” approach to post-Booker sentencing. The article elaborates this structural approach, suggests a doctrinal framework, and sketches its limits and possibilities for future crack sentencing cases. In practice, this article contends that the new approach allows a resolution of the crack issue that has so far gone unappreciated by both sides of the debate: Contrary to common assumption, sentencing judges can reduce the harm caused by the crack disparity without treading on policy choices made by Congress.

Booker, Blakely, crack, cocaine, sentencing, sentencing guidelines, drug