Archive for March 14th, 2019

March 14, 2019

Sheff Discusses Article on Ipse Dixit Podcast

Professor Jeremy Sheff recently appeared on the legal scholarship podcast Ipse Dixit to discuss his latest work in progress, Jefferson’s Taper.


Jeremy Sheff

In the podcast, Professor Sheff discusses his discovery of the connection between a famous letter from Thomas Jefferson on the justification for patent rights and the writings of ancient Roman philosopher Marcus Tullius Cicero. The conversation between Professor Sheff and Ipse Dixit host Professor Brian Frye goes on to explore the implications of this discovery for our modern justifications for intellectual property rights.Jefferson’s Taper is available in draft on SSRN.

Here is the abstract for Jefferson’s Taper:

This Article reports a new discovery concerning the intellectual genealogy of one of American intellectual property law’s most important texts. The text is Thomas Jefferson’s often-cited letter to Isaac McPherson regarding the absence of a natural right of property in inventions, metaphorically illustrated by a “taper” that spreads light from one person to another without diminishing the light at its source. I demonstrate that Thomas Jefferson likely copied this Parable of the Taper from a nearly identical passage in Cicero’s De Officiis, and I show how this borrowing situates Jefferson’s thoughts on intellectual property firmly within a natural law theory that others have cited as inconsistent with Jefferson’s views. I further demonstrate how that natural law theory rests on a pre-Enlightenment Classical Tradition of distributive justice in which distribution of resources is a matter of private judgment guided by a principle of proportionality to the merit of the recipient — a view that is at odds with the post-Enlightenment Modern Tradition of distributive justice as a collective social obligation that proceeds from an initial assumption of human equality. Jefferson’s lifetime correlates with the historical pivot in the intellectual history of the West from the Classical Tradition to the Modern Tradition, but modern readings of the Parable of the Taper, being grounded in the Modern Tradition, ignore this historical context. Such readings cast Jefferson as a proto-utilitarian at odds with his Lockean contemporaries, who supposedly recognized property as a pre-political right. I argue that, to the contrary, Jefferson’s Taper should be read from the viewpoint of the Classical Tradition, in which case it not only fits comfortably within a natural law framework, but points the way toward a novel natural-law-based argument that inventors and other knowledge-creators actually have moral duties to share their knowledge with their fellow human beings.

March 14, 2019

Cavanagh to Publish Article in The Review of Litigation

Professor Ned Cavanagh‘s article, Offensive Non-Mutual Issue Preclusion Revisited, has been accepted for publication in The Review of Litigation (Texas).


Below is the article’s abstract:

In 1978, the Supreme Court in Parklane Hosiery Co. v. Shore held that the rule of mutuality of estoppel was no longer an absolute bar to the invocation of issue preclusion by a stranger to the prior litigation and that courts may permit non-mutual issue preclusion except where doing so would produce unfair results. Many state courts then followed suit, and Parklane soon became the majority view. Nevertheless, doubts about Parklane persist. Some scholars continue to argue that Parklane went too far in banishing mutuality to the scrap heap and that a rule of mutuality with a few defined exceptions is preferable to a rule of non-mutuality with a lot of fuzzy exceptions.

Parklane has led to a broader application of preclusion principles in federal litigation. However, the debate over mutuality is not merely academic and has taken on new urgency in light of the fact that since Parklane was decided, the complexion of litigation in the federal courts has changed dramatically. That, in turn, has brought about a corresponding change in attitude among judges regarding litigation management. The multiparty, multijurisdictional, multidistrict litigation that populates today’s federal dockets has grown increasingly complex. In managing complex cases, judges no longer seek to try all cases in a single, consolidated action. Rather, judges may seek to break down the litigation into smaller pieces, looking for “fast track” or “bellwether” cases that, once resolved, will lead to settlement of the remaining cases. In these circumstances, questions of issue preclusion abound.

The question explored herein is whether the rule of Parklane and its progeny remains a viable standard under the new litigation paradigm. It concludes that the changing nature of litigation in the federal system has not lessened the need for development and implementation of a coherent set of principles governing preclusion. In most areas of preclusion, a broad consensus in fact exists. Whether courts should allow offensive non-mutual issue preclusion is the only real area of debate in the preclusion field. The case by case approach articulated by the Court in Parklane strikes the proper balance between fairness and efficiency. Bright line rules might be more predictable, but the ultimate goal is to get just outcomes, not simply predictable outcomes. The answer to Professor Clermont’s question is, therefore, that we are better off with a rule of non-mutuality with a lot of fuzzy exceptions, instead of a rule of mutuality subject to a few very well-defined exceptions. The case for change has not been made, and it would be a serious mistake to turn back the clock and embrace a rule of mutuality.

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