Brandeis’s I.P. Federalism: Thoughts on Erie at Eighty

25 Pages Posted: 9 Jan 2019 Last revised: 15 Jan 2019

Date Written: January 6, 2019


Justice Brandeis is, in intellectual property law’s precincts, most famous for his lone dissent in International News Service v. Associate Press, the misappropriation case one can find in virtually every i.p. survey casebook (and many property law casebooks as well). But in the wider legal world, Brandeis is likely most famous for his earthquake opinion in Erie Railroad Co. v. Tompkins. Do Brandeis’s opinions in these two cases speak to each other? Can considering them together inform broader reflections on the texture of our federalism in the i.p. context? This piece, prepared in connection with an “Erie at Eighty” conference in fall 2018, makes the case that the answer to both questions is “yes.”

Keywords: intellectual property, Erie, federalism, Brandeis

JEL Classification: K20, K29, K40

Suggested Citation

Miller, Joseph Scott, Brandeis’s I.P. Federalism: Thoughts on Erie at Eighty (January 6, 2019). Akron Law Review, Forthcoming; University of Georgia School of Law Legal Studies Research Paper No. 2019-05. Available at SSRN:

Joseph Scott Miller (Contact Author)

University of Georgia School of Law ( email )

225 Herty Drive
Athens, GA 30602
United States
706-542-5191 (Phone)
706-542-5556 (Fax)

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