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.

Sponsored by Syracuse University, College of Law

"Copyright’s Private Ordering and the 'Next Great Copyright Act'" Free Download
29 Berkeley Technology Law Journal 1595 (2014)
Loyola-LA Legal Studies Paper No. 2015-10

JENNIFER E. ROTHMAN, Loyola Law School Los Angeles

Private ordering plays a significant role in the application of intellectual property laws, especially in the context of copyright law. In this Article, I highlight some of the dominant modes of private ordering and consider what formal copyright law should do, if anything, to engage with private ordering in the copyright space. I conclude that there is not one single approach that copyright law should take with regard to private ordering, but instead several different approaches. In some instances, the best option is for the law to get out of the way and simply continue to provide room for various approaches to flourish. In other contexts, the copyright statute should actively support private ordering efforts that may be jeopardized by the current regime. Private ordering may also highlight areas where the law is in need of reform. This is perhaps most noticeable in the context of fair use which has led to the proliferation of much of the private ordering. The combination of the unpredictability and expense of fair use litigation combined with potentially high statutory damages has created a series of risk-averse litigation-avoidance practices and an underutilization of fair use. Legislation may be necessary to prevent a lock-in effect of some of these industry practices and norms. In particular, courts should be barred from using these customs to set the boundaries of fair use. Revisions to the Copyright Act could also address some of the uncertainty surrounding fair use and facilitate the use of works in instances that we would like to encourage. In recent years, copyright holders have used technology and contracts to greatly limit what users can do with copyrighted works and even with uncopyrightable elements of those works. Revisions to copyright law should engage with these private efforts and protect a significant fair use zone. Copyright’s private ordering also reveals some areas of agreement which merit codification, such as faculty ownership of course materials and scholarship. Copyright law does not operate in a vacuum and any major revisions to copyright law must take into consideration the practices that have developed in its wake. As we look forward to a Copyright Act for the twenty-first century, Congress must not only consider ways to limit online piracy, but also how to protect the public’s vital space to engage with, comment on, and rework copyrighted material in light of the myriad practices that have developed in the shadow of the 1976 Act.

"Takings and Extortion" Free Download
Florida Law Review, Forthcoming
Loyola-LA Legal Studies Paper No. 2015-11

DANIEL P. SELMI, Loyola Law School Los Angeles

In a series of controversial decisions the Supreme Court has addressed the constitutionality of governmental exactions that require developers to dedicate land or pay fees as a condition of developing property. Rather than focusing on the questionable doctrinal consistency of these decisions, this article sees them as reflecting an underlying judicial narrative that assumes local governments unfairly "extort" exactions. The article demonstrates how this "extortion narrative" explains the decisions and, if the Court continues to follow it, will lead to further contraction of governmental discretion and possibly to a reformulation of takings law generally. The article then evaluates the foundations of the narrative and concludes that it cannot support the reformulation of exactions takings law on which the Court has embarked.

"Protecting the Boundaries: Unclaimed Consideration in the Patentee's Social Contract" Free Download
Tulane Journal of Technology & Intellectual Property, Volume 18, Forthcoming
Chapman University, Fowler Law Research Paper No. 15-02

SAMUEL F. ERNST, Chapman University, The Dale E. Fowler School of Law

This article argues that the primary value society receives in the patentee’s social contract is not new inventions, but “unclaimed consideration.? Unclaimed consideration takes many forms: additional innovations to improve on the patented invention; additional innovations created through efforts to design around the patented invention; innovations created by losers in the patent race; innovations informed by the unclaimed technical information in patents; commercialization of the patented invention or these other innovations; and the signals that patents give to investors regarding the value of a company or research lab. This unclaimed consideration is not necessarily a positive externality or “spillover,? because the inventor herself may well capture the value of the unclaimed consideration. And while there are many schools of patent scholarship engaged in spirited debate regarding how patents serve (or fail to serve) society, this article is the first to recognize and map the growing consensus among modern patent theories that this unclaimed consideration is of primary value and importance to society. Indeed the majority of claimed inventions are never commercialized or licensed, and so granting the patent monopoly in most cases can only be justified by society receiving some other form of consideration. The courts should therefore guard the boundaries of patent claims to avoid the perverse result of allowing the thicket of claimed inventions to stifle the development of unclaimed consideration. The article demonstrates this point through a case study of Siemens Medical Solutions v. Saint-Gobain Ceramics & Plastics, in which the Federal Circuit decided that an accused product can equivalently infringe a patent even after it is declared by the Patent and Trademark Office to be separately patentable and non-obvious over the asserted patent. The majority of a sharply divided court thereby allowed a broad doctrine of equivalents to ensnare unclaimed consideration, relying on reasoning myopically wed to the belief that the sole way in which the patent laws promote progress is by incentivizing claimed inventions. The courts should instead lean on the side of protecting unclaimed consideration, which modern patent theory recognizes is the substantial return society ought to receive in return for the patent grant.

"O’Bannon v. National Collegiate Athletic Association: Why the Ninth Circuit Should Not Block the Floodgates of Change in College Athletics" Free Download
71 Wash. & Lee L. Rev. Online 299
Cleveland-Marshall Legal Studies Paper No. 2575764

MICHAEL A. CARRIER, Rutgers University School of Law - Camden
CHRIS SAGERS, Cleveland-Marshall College of Law, Cleveland State University

In O’Bannon v. National Collegiate Athletic Ass’n, then-Chief Judge Claudia Wilken of the U.S. District Court for the Northern District of California issued a groundbreaking decision, potentially opening the floodgates for challenges to National Collegiate Athletic Association (NCAA) amateurism rules. The NCAA was finally put to a full evidentiary demonstration of its amateurism defense, and its proof was found emphatically wanting.

We agree with Professor Edelman that O’Bannon could bring about significant changes, but only if the Ninth Circuit affirms. We write mainly to address the NCAA’s vigorous pending appeal and the views of certain amici, and to explain our strong support for the result at trial.

Reversal of Judge Wilken’s comprehensive and thoughtful decision would thwart needed changes just as colleges are beginning to embrace them and would be mistaken as a matter of law. O’Bannon is a correct, justifiable, garden-variety rule-of-reason opinion and should be affirmed by the Ninth Circuit.

"Creative Place-Making: Where Legal Geography Meets Legal Consciousness" Free Download

ANTONIA LAYARD, Bristol Law School
JANE MILLING, Independent

This chapter investigates how creative participation in place-making is legally constructed. It draws on the findings of the UK, Arts and Humanities Research Council, funded project: Creative Participation (2012-13). This explored how three ‘pioneer communities’ (the Elders Council of Newcastle, Northern Youth (name changed) and the People’s Republic of Stokes Croft (PRSC) in Bristol) use creativity to involve themselves in place-making and planning practices. Each of these groups is working to improve their locality, albeit in quite different ways. While all began by working through formal consultative and participatory procedures, each found that voices are ‘not heard’, so that you ‘have to use every avenue that you can’.

The research asks why some participants engage with developers through formal planning processes or paint graffiti without permission, while others feel unable to act. It suggests that one reason for the differences is that in addition to distinct sets of resources, there are variations in ‘legal consciousness’ (Ewick & Silbey, 1998), differences in the ways in which participants’ social and cultural practices enact legality. This chapter uses work in legal consciousness to consider how ‘publics’ engage with landowners and authorities in very different ways, considering what this can mean for creative place-making.

"Intellectual Property and Competition" Free Download
This essay is a chapter in the Research Handbook on the Economics of Intellectual Property (Edward Elgar, Peter Menell, David Schwartz, & Ben Depoorter, eds. Forthcoming).

HERBERT J. HOVENKAMP, University of Iowa - College of Law

A legal system that relies on private property rights to promote economic development must consider that profits can come from two different sources. First, both competition under constant technology and innovation promote economic growth by granting many of the returns to the successful developer. Competition and innovation both increase output, whether measured by quantity or quality. Second, however, profits can come from practices that reduce output, in some cases by reducing quantity, or in others by reducing innovation.

IP rights and competition policy were traditionally regarded as in conflict. IP rights create monopoly, which was thought to be inimical to competition. By contrast, competition policy values free entry and asset mobility, which IP rights limit in order to create incentives. Today our view of this relationship is more complex. First, most IP rights are insufficient to produce durable monopoly, although they do facilitate product differentiation. Second, we tend to see IP rules as creating a property rights system in which competition exists for the property rights themselves. Firms compete by innovating and appropriating whatever payoffs they are able to capture, including IPRs. Third, we define competition in terms of output or welfare rather than simple rivalry. A market structure or practice that increases output is more "competitive" than a lower output alternative, even though the amount of daily rivalry among firms is less. For example, output in the cellular phone market is much higher because hardware, software, and telecommunications links are all networked by cooperative agreements and standard setting.

Under conventional neoclassical assumptions, both innovation and competition increase output, whether measured by the number of units or their quality.

At the same time, however, excessive IP protection limits competition by reducing asset mobility further than necessary to facilitate innovation. Excessive antitrust enforcement can also limit asset mobility by benefiting select businesses at the expense of consumers. The policy trick is to find the "sweet spot" where the aggregate effects of IP and competition policy are optimized.


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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