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November, 2010

The Pragmatic Incrementalism of Common Law Intellectual Property

Nov. 23, 2010—“Common law intellectual property” refers to a set of judge- made legal regimes that create exclusionary entitlements in different kinds of intangibles. Principally the creation of courts, many of these regimes are older than their statutory counterparts and continue to coexist with them. Surprisingly, intellectual property scholarship has paid scant attention to the nuanced lawmaking...

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Punishment as Suffering

Nov. 23, 2010—When it comes to punishment, should we be subjectivists or objectivists? That is, should we define, measure, and justify punishment based on the subjective experiences of those who are punished or should we instead remain objective, focusing our attention on acts, culpability, and desert? In a recent series of high- profile articles, a group of...

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Merging in the Shadow of the Law: The Case for Consistent Judicial Efficiency Analysis

Nov. 23, 2010—This Article examines current judicial interpretation of Section 7 of the Clayton Act through the lens of negotiation theory. The research exposes a gap between how courts state they are analyzing efficiency claims in Section 7 Clayton Act enforcement actions and what they are actually doing. During periods of lax antitrust enforcement, this pattern is...

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