Public Rights After Oil States Energy

Abstract

The concept of public rights plays an important role in the jurisprudence of the Supreme Court of the United States. But as the decision in Oil States Energy last term revealed, the Court has often used the term to refer to three different concepts with different jurisprudential implications. Using insights drawn from historical and analytical jurisprudence, this Article distinguishes the three concepts and examines how each of them is at work in patent law. A precise reading of Oil States also bears lessons for other areas of law that implicate both private rights and duties and the administration of public, regulatory schemes.

Keywords: public rights, private rights, legal rights, common law, patents, administrative law, jurisprudence

JEL Classification: K11, K40