LARISSA M. KATZ, Queen's University - Faculty of Law
Email: larissa.katz@queensu.ca

In this article, I propose a model for understanding the concept of ownership that I call the exclusivity model. Like many of the contemporary critics of the bundle of rights approach to Ownership, I insist that ownership is a legal concept with a well-defined structure. I differ from most of these contemporary critics, however, in the model of ownership that I believe to be at work in property law. Most of these critics propose a model of ownership that emphasizes the owner's right to exclude non-owners from the owned thing as the central defining feature of ownership. I call this the boundary approach to highlight its fixation on the owner's power to decide who may cross the boundaries of the owned thing. But this, I argue, makes it impossible for them to explain adequately the many subsidiary rights in things that co-exist with the rights of owners. Indeed, when we look more closely at the structure of ownership in property law, I argue that its central concern is not the exclusion of all non-owners from the owned thing, but rather the preservation of the owner's position as the exclusive agenda-setter for the owned thing. So long as others - whether they be subsidiary property right- holders or strangers to the property - act in a way that is consistent with the owner's agenda, they pose no threat to the owner's exclusive position as agenda-setter.

OLUFUNMILAYO AREWA, Northwestern University - School of Law
Email: o-arewa@law.northwestern.edu

In 2004, Eric Clapton released the DVD-CD Sessions for Robert J and the CD Me and Mr. Johnson, which paid homage to Robert Johnson, one of Clapton‘s greatest musical influences. Clapton is not alone in his reverence of Robert Johnson. The ascension of Robert Johnson to the status of preeminent representative of early recorded blues traditions reflects broader trends in the creation and reception of blues music in the twentieth century. Johnson‘s position decades after his death is a startling contrast to the circumstances of his short life and the contexts within with he lived and performed.

Robert Johnson was a poor African American itinerant blues musician who died in obscurity under mysterious circumstances in 1938 at a country crossroads near Greenwood, Mississippi. Johnson was one of a number of musicians who made their way through the Mississippi Delta during the time period of his life and death. The legend of Robert Johnson, however, surpasses that of his musical contemporaries: Robert Johnson is the most well known bluesman of his era today. From his humble beginning and obscure death, Robert Johnson later emerged to become one of the biggest influences on rock and roll music, particularly through musicians in Great Britain, many of whom like Eric Clapton, count Robert Johnson as one of their greatest influences. Robert Johnson was one of the first 12 members inducted into the Rock and Roll Hall of Fame. Robert Johnson is far more famous in death than he could ever have envisaged during his lifetime. The story of Robert Johnson is thus an important one for the history of music, particularly in relation to the development of blues music traditions and the rock and roll traditions that emerged from blues.

The story of Robert Johnson is also an important one for copyright. Treatment of many blues musicians of Robert Johnson‘s era represent an early example of continuing tensions in the application of copyright to a broad range of living musical traditions. Copyright treatment of blues musicians also reflects the difficulties inherent in the application of copyright as a property rule to musical forms, including blues, which are characterized by pervasive borrowing. The reality of musical borrowing is often insufficiently acknowledged in discussions of copyright and music. The intersection of copyright, Robert Johnson‘s music and blues more generally can reveal something of how copyright law treats creative processes that reflect significant amounts of borrowing. Further, the contexts of application of copyright law to blues, as well as more generally, reflect the continuing influence of hierarchies of culture and power that have long shaped copyright law and its application.

MATTHEW L.M. FLETCHER, Michigan State University College of Law
Email: matthew.fletcher@law.msu.edu

There are extra-legal barriers that American Indian people faced when confronted with the illegal theft of their lands, or with any dispossession of their lands. Indian tribes and Indian people faced numerous practical barriers to bringing land and treaty claims prior to the modern era, including without limitation: (1) lack of financial resources; (2) lack of knowledge and sophistication about the American legal system; (3) demoralization; (4) lack of a clear and authorized tribal governmental plaintiff; and (5) government interference and control over tribal affairs.

For Indian tribes pursuing a remedy for these claims, there is a significant defense raised - why didn't the tribes or the Indians bring these claims before? Since the Supreme Court decided Sherrill v. Oneida Indian Tribe, the equitable defense of laches has been raised by states, local units of government, and property owners against the tribal claims with frightening success rates. The defense is superficially compelling in large part because the practical reasons for failing to bring suit decades sooner might not be considered excusable.

In a pending case, Oneida Indian Nation v. County of Oneida, the National Congress of American Indians attempted to flesh out the practical barriers to tribal land claims in an amicus brief. This short Essay attempts to add to that research. But the ultimate purpose of this Essay is to call for serious empirical research on this difficult question - why didn't Indians and tribes file suit to vindicate their rights to land?

ROBERT ASHFORD, Syracuse University - College of Law
Email: rhashford@aol.com

Many people know about Employee Stock Ownership Plans (ESOPs) which, along with profit-sharing and pension plans, are treated as deferred compensation plans under Section 401 and related sections of the Internal Revenue Code. ESOPs have been established by thousands of American corporations, including some of the largest, and cover millions of employees. There is a national trade association (The ESOP Association), that is now celebrating its 50th year in existence, and other organizations established to support employee ownership, including the Ohio Center for Employee Ownership that first published this article in its publication entitled Owners At Work (2006/2007)

Most people aware of ESOPs, however, do not realize that ESOPs are part of a broader approach to expanded capital ownership, broader prosperity, and economic justice known as binary economics. Binary economics was first advanced by Louis Kelso, who is also widely known as the inventor of the ESOP. But Louis Kelso's approach to economic theory is only partially reflected in the present ESOP legislation. Binary economics offers a plan for more widespread economic prosperity for all people (not limited to employees) than is presently offered by mainstream economics.

Once ESOP participants understand binary economics, they may choose to advocate legislative reforms that will better serve their own economic interests and also the economic interests of their companies and the country as a whole. These reforms would transform ESOPs into much more powerful Super ESOPs in a full binary economy of the future. The Super ESOP will empower employees to acquire shares of stock in their companies entirely with the earnings of capital and on much more favorable terms than at present. Moreover, the Super ESOP will empower employees and others to acquire a diversified portfolio of shares in other credit-worthy companies entirely with the future earnings of the shares they acquire.

This article briefly describes the binary economics and its important connection with the ESOPs. For a fuller explication if binary economics, see the following four articles which can be downloaded for free from SSRN.COM: (1) Binary Economics - An Overview, (2) Binary Economics and the Case for Broader Ownership, (3) Capital Democratization, and (4) Memo on Binary Economics to Women and People of Color Re: What Else can Public Corporations Do for Your Clients?.

RON A. BOUCHARD, University of Alberta - Faculties of Law and Medicine & Dentistry
Email: ron.bouchard@law.ualberta.ca

Decisions such as KSR illustrate that Canadian firms and inventors do not operate within a purely local sphere, but rather are embedded within a complex domestic network of scientific, legal, regulatory, economic and political actors enfolded within a still larger global innovation ecology. It was reasoned that a system of this nature has many of the hallmark characteristics of an open and continually evolving complex adaptive system. A complex systems approach to innovation privileges the interrelationships among actors and institutions and their interdependence in maximizing system fitness, in this case innovation in the medical sciences and enhancing national productivity and prosperity. Of importance from a health law and policy perspective, a systems approach is conducive to accomplishing these goals in a manner that respects many of the fundamental distributive and egalitarian considerations embedded within the democratic state, common law, Rule of Law and entrenched human rights.

That the goal of a robust complex adaptive system is not optimization but operational efficiency from the perspective of the whole underscores the importance of maximizing social efficiencies and minimizing social inefficiencies. When drafting law and policy with the goal of respecting the characteristics of a complex system, it is therefore important to balance accommodation and cooperation with competition among system elements so as to maximize the flexibility and responsiveness of the system to changing conditions. As discussed in the context of pharmaceutical innovation, placing too much emphasis on controlling or regulating an inherently indeterminate and emergent system without paying sufficient attention to states of criticality and phase transitions can lead to inefficient behaviors of a system that contradict its stated policy objective. For example, over-regulation of innovation by excessive or narrowly circumscribed IPR rights may allow for escape of creative energy away from the desired policy goal towards less innovative, less resource heavy yet more constrained pathways that benefit discrete actors and institutions rather than the system. A highly constraining IPR rights regime not only has the potential to skew the benefits of innovation towards discrete modules (corporate, individuals) but also to skew function of the system more broadly by influencing the general pattern and scope of innovative activity by persons skilled in the art as well as the manner in which newly synthesized scientific knowledge is used by legal, regulatory, economic and political actors. The ironic result of this is that innovation can be stifled by the very policies meant to stimulate it. Indeed in its leading patent jurisprudence SCOTUS, from Hotchkiss through Graham and KSR, has maintained the position that grant of patents for non-inventive products and process inhibits rather than stimulates innovation and competition.