How the Law Responds to Self-Help
71 Pages Posted: 6 Dec 2004
Date Written: December 2004
Legal rules are typically implemented through a combination of public and private mechanisms. Burglars, for example, are deterred from unauthorized entry in part by the threat of jail time and police intervention, and in part by the knowledge that homeowners have guns, security systems, and other private measures by which to defend their property. Similarly, while entrepreneurs obviously use patent, copyright, and trade secret law to protect proprietary information, they also routinely take matters into their own hands by, for example, dividing sensitive information across employees such that no single employee ever knows enough to betray the firm completely. Every area of law can to some degree be characterized in this manner, framed in a way that emphasizes substitutability between public responses and their private alternatives. In this Essay, I examine several specific areas of law (free speech jurisprudence, trade secret law, copyright law, and patent law) from this perspective, using each as a case study from which to cull broader lessons about the proper structure for these public/private partnerships.
Keywords: free speech jurisprudence, trade secret, copyright, patent
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By Orin S. Kerr