Promises! Promises!

David Nimmer

Responding to Arthur R. Miller, Common Law Protection For Products of the Mind: An "Idea" Whose Time Has Come, 119 Harv. L. Rev. 703 (2006)

This Reply confronts two dichotomies — published works versus unpublished works, and federal law versus state law. Part of the challenge in the vast body of cases that Professor Miller confronts inheres in the circumstance that federal law applies to both published and unpublished works, and state law likewise applies to both published and unpublished works. A vastly simpler world would be one in which, for the most part, published works were the domain solely of federal statutory copyright protection, and the states needed to keep out of the picture. Correlatively, on this hypothetical planet, state law would form the exclusive regulator of unpublished works, and federal law (along with its preemptive force) would not enter the equation.

The United States was located on that other planet before 1978. At that time, the law of ideas was far less diffuse and confused. Since that time, our country has had to live in a world that mandates a federal system with governments at both levels required to formulate legal regimes governing both published and unpublished works. It is instructive to focus on what has been lost as well as what has been gained. But given that it is certainly too late to turn back the clock to the scheme of the 1909 Act, we can thank Professor Miller for bringing needed order to the law of ideas as it simultaneously exists in two legal domains.

119 Harv. L. Rev. F. 74 (2006) | DOWNLOAD PDF

Should Antitrust Condemn Tying Arrangements that Increase Price Without Restraining Competition?

Steven Semeraro :: In his article Tying, Bundled Discounts, and the Death of the Single Monopoly Profit Theory, Professor Einer Elhauge attempted to demonstrate that tying, the practice whereby a firm conditions the sale of one product on the customer’s agreement to purchase another, always harms consumers. He determined that antitrust law should prohibit tying even when that tying did not restrain competition in the tied product’s market. In this response, Professor Steven Semeraro argues that this form of tying actually benefits consumers in the long term. READ MORE

Disappearing Neighbors

David D. Troutt :: In his article Mobile Capital, Local Economic Regulation, and the Democratic City, Professor Richard C. Schragger explored the consequences of local governments’ attempts to entice — and then exploit — mobile capital. He concluded that cities possess, but must not abuse, the power to assert democratic control over capital flow. In this response, Professor David D. Troutt argues that current foreclosure crisis demonstrates the weakness of cities in relation to mobile capital. READ MORE

Freeing Employee Choice: The Case For Secrecy in Union Organizing and Voting

Cynthia Estlund :: In his article Enabling Employee Choice, Professor Benjamin Sachs provided a nuanced analysis of what is wrong both with current law and with the leading reform proposal. In this response, Professor Cynthia Estlund argues that Professor Sachs’s reform proposal is likely to set the terms for future scholarly analysis and for serious public debate over the role of law in union organizing regardless of the fate of labor law reform in the current Congress. READ MORE

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