Indirect Enforcement of the Intellectual Property Clause
32 Pages Posted: 27 Mar 2007 Last revised: 23 Jun 2010
This paper offers a model for the indirect judicial enforcement of the Intellectual Property Clause. What do I mean by indirect enforcement?
Courts directly enforce the Intellectual Property Clause when they interpret some text in that provision, determine how it limits Congress's lawmaking power and then apply that limitation to judge the validity of one of Congress's intellectual property enactments. This is what the Court did in Eldred v. Ashcroft, albeit with very little constraining effect.
In contrast, courts indirectly enforce the Intellectual Property Clause when they use constitutional text - or perhaps more accurately their purposive understanding of constitutional text - as a guidepost in interpreting an IP statute, preferring interpretations that respect the court's understanding of the limitations imposed by the Constitution on legislation in this field over those that do not. Rulings made in the context of indirect enforcement need not be adhered to as constitutional rulings that bind the legislature. Rather, they are ordinary rulings on the interpretation of statutes, subject to reversal or modification by Congress's ordinary lawmaking.
Unlike in the case of direct enforcement, in which courts make binding statements about the scope of congressional power under the Intellectual Property Clause, indirect enforcement allows courts to make, in effect, constitutional proffers. Congress may, in its future lawmaking, accept such a proffer, accept it in part or reject it.
Indirect application respects Congress's lawmaking primacy and its lead role in elucidating the boundaries of its power under the Intellectual Property Clause. But it preserves an important - albeit ultimately not decisive - role for courts in determining what those boundaries are. And most importantly, it allows both courts and Congress to do what they do well. Courts to read and interpret constitutional text, and then announce (or, more precisely, to proffer) those interpretations in judicial decisions. Congress to legislate, based on its own understanding of its constitutional power, but reinforced by courts' contributions.
We have grounds to hope that the outcome of this dialogue may, as a consequence of the differences between the legislative and adjudicatory process and the cultures of legislatures and courts, produce outcomes that are more fully theorized relative to what we would likely obtain from a one-way model of deference in which legislatures act and courts submit.
Keywords: Intellectual Property, Copyright, Constitutional Law
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