The Working Group on Property, Citizenship, and Social Entrepreneurism (PCSE) ( is sponsored by the Syracuse University College of Law and its Program in Law and Market Economy. The Program in Law and Market Economy is an interdisciplinary program focusing on the relationship among law, markets, and culture. Within this context the Working Group on PCSE brings together experts from a variety of institutions to discuss and explore issues related to property law, governance, and globalization. The Group will provide an ongoing forum for the publication of important new works.

Table of Contents

O'Reilly v. Morse

Adam Mossoff, George Mason University School of Law

Navigability and its Consequences: State Title, Mineral Rights, and the Public Trust Doctrine

Robin Kundis Craig, University of Utah S.J. Quinney College of Law

Unconstitutional Perpetual Trusts

Steven J. Horowitz, Sidley Austin LLP
Robert H. Sitkoff, Harvard Law School

Sponsored by Syracuse University, College of Law

"O'Reilly v. Morse" Free Download
George Mason Law & Economics Research Paper No. 14-22

ADAM MOSSOFF, George Mason University School of Law

O’Reilly v. Morse (1854) is a famous patent case. It is relied on by Justices and judges, discussed by scholars, and taught to students. Everyone agrees it was correctly decided: Chief Justice Roger Taney’s majority opinion stopped Samuel Morse’s attempt to control all telecommunication technologies with a patent that went far beyond his invented telegraph and encompassed modern email, fax machines and text messages. This conventional wisdom, however, is profoundly mistaken. It fails to account for the historical context in which Morse invented, patented, commercialized and ultimately was swept up in massive litigation over his innovative telegraph.

This paper corrects this anachronism by reinserting this full historical context back into our understanding of Morse. It details the invention and innovative commercial development of the telegraph, and it reveals that Chief Justice Taney’s opinion was not a sterling exemplar of patent law. Similar to his decisions in constitutional law and in other patent cases, Chief Justice Taney ignored established patent doctrines and instead decided the case on the basis of his own political biases. As a fervent Jacksonian Democrat, Chief Justice Taney viewed patents as state-granted monopolies, and not as property rights in technological innovation. It is only a happy accident for him that his judicial activism in O'Reilly v. Morse comported with much-later changes in patent law that made his opinion appear correct to our modern eyes — unlike Chief Justice Taney’s similar twisting of established law in Dred Scott to reach a result similarly dictated by his personal political preferences.

"Navigability and its Consequences: State Title, Mineral Rights, and the Public Trust Doctrine" Free Download
Proceedings of the 2014 Rocky Mountain Mineral Law Foundation Summer Institute (2015 Forthcoming)

ROBIN KUNDIS CRAIG, University of Utah S.J. Quinney College of Law

“Navigability? and “navigable waters? are two of the most complex terms of art in American law because their meanings vary from context to context. A “navigable water? for purposes of the federal courts’ admiralty jurisdiction is not precisely the same thing as a “navigable water? for Commerce Clause purposes, and the Commerce Clause definition can be further refined in statute like the federal Clean Water Act. Other important federal law definitions of navigability govern state title to banks and beds of waterways and the scope of the federal navigation servitude. As this article will discuss, these tests overlap considerably, and attempts to distinguish them can cause confusion. State law definitions of “navigability? for state regulatory purposes complicate the multiple valences of “navigable water? even further.

This article provides an overview of some of the more important definitions of “navigability? and “navigable waters.? In general, labeling a waterway as “navigable? signals that either the federal government or the public acquires some right to the waterway in question. However, if the waterway also meets the “navigable water? test for state title, complicated legal relationships among the federal government, the relevant state, the general public, and private riparian landowners almost inevitably follow.

"Unconstitutional Perpetual Trusts" Free Download
67 Vanderbilt Law Review, Forthcoming

ROBERT H. SITKOFF, Harvard Law School

Perpetual trusts are an established feature of today's estate planning firmament. Yet little-noticed provisions in the constitutions of nine states, including five states that purport to al-low perpetual trusts by statute, proscribe "perpetuities." This article considers those provisions in light of the meaning of "perpetuity" as a legal term of art across history. The article considers the constitutionality of perpetual trust statutes in states that have a constitutional ban on perpetuities and whether courts in states with such a ban may give effect to a perpetual trust settled in another state. Because text, purpose, and history all suggest that the constitutional proscriptions of perpetuities were meant to proscribe entails, whether in form or in function, and because a perpetual trust is in purpose and in function an entail, we conclude that recognition of perpetual trusts is prohibited in states with a constitutional prohibition of perpetuities.


About this eJournal

Sponsored by: Syracuse University, College of Law.

The eJournal of Property, Citizenship, and Social Entrepreneurism (PCSE) is an interdisciplinary journal dedicated to exploring the core principle that a just and accessible property law system is the basis for both good citizenship and successful socio-legal development. This eJournal distributes working and accepted paper abstracts primarily concerned with matters of property as they relate to the human process of exchange, the fostering of democratic institutions, the building of sustainable communities, the stewardship of the global environment and its natural resources, the promotion of citizenship, and the development of market institutions that respond to and promote a worthy social mission.

Our goal is to explore the legal infrastructure of property in broad terms: encompassing concerns for real, personal, intangible, and intellectual property, as well as looking at property related financial markets (including real estate mortgages, personal property security interests, licensing, and securitization).

Making reference to specific examples of property (in its various forms) we will address the following types of issues.

1) To what extent do property rights reduce or eliminate the need for government regulation (particularly command and control-regulation) while enhancing the environment for open market approaches to economic development and globalization? This includes consideration of the way in which property rights actually reduce transaction costs, correct for problems raised by the tragedy of the commons, and organize society in a way that fosters efficient economic development.

2) What is the role of privatization of State controlled property in the transformation process? How should privatization be approached and what distinctions need to be made between public, private, and state property? This includes discussion of necessary support infrastructure for successful privatization, and consideration of the need for government control over private companies dealing with public utilities, natural resources, and transportation systems.

3) To what extent do property rights enhance citizenship and advance democratic institutions? What role does private property play in creating political elites and the structures needed for controlled development and social transformation? How can property rights be used to make the rule of law more tangible, and to promote civic participation and inclusion? How are property rights related to citizenship issues respecting matters of race, gender, ethnicity, urban or rural location, and other factors?

4) To what extent do property rights promote entrepreneurism, including social entrepreneurism focusing on values other than mere maximization of economic wealth and efficiency? How can property rights fuel economic development while helping to reduce poverty?

5) In a world of global financial institutions such as the European Development Bank, The World Bank, and the IMF, with the power to influence indirect or quasi-law making, how are global property law systems to develop and become institutionalized? How do these institutions facilitate problems related to globalization and harmonization, and what are the socio-legal implications from such activity?


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