Property Rights

The Constitutional Foundations of Intellectual Property -- A Natural Rights Perspective - Podcast

Intellectual Property Practice Group Podcast
Seth L. Cooper, Randolph J. May, Mark F. Schultz October 22, 2015

Protection of intellectual property (IP) rights is indispensable to maintaining a vibrant economy, especially in the digital age as creativity and innovation increasingly take intangible forms. Long before the digital age, however, the U.S. Constitution secured the IP rights of authors and inventors to the fruits of their labors. The essays in The Constitutional Foundations of Intellectual Property: A Natural Rights Perspective explore the foundational underpinnings of intellectual property that informed the Constitution of 1787, and it explains how these concepts informed the further development of IP rights from the First Congress through Reconstruction. The essays address the contributions of important figures such as John Locke, George Washington, James Madison, Thomas Jefferson, Noah Webster, Joseph Story, Daniel Webster, and Abraham Lincoln to the development of IP rights within the context of American constitutionalism. Claims that copyrights and patents are not property at all are in fashion in some quarters. This book’s essays challenge those dubious claims. Unlike other works that offer a strictly pragmatic or utilitarian defense of IP rights, this book seeks to recover the Constitution’s understanding of IP rights as ultimately grounded in the natural rights of authors and inventors.


  • Seth L. Cooper, Senior Fellow, The Free State Foundation
  • Randolph J. May, President, The Free State Foundation
  • Prof. Mark F. Schultz, Senior Scholar & Co-Director of Academic Programs, Center for the Protection of Intellectual Property, George Mason University School of Law and Associate Professor, Southern Illinois University School of Law

How Long are Horne's Horns? - Podcast

Environmental Law & Property Rights Practice Group Podcast
John D. Echeverria, Michael W. McConnell October 02, 2015

In Horne v. U.S. Department of Agriculture, eight justices of the Supreme Court agreed that a governmental taking of personal property, just like real property, was a compensable taking under the Fifth Amendment. In Horne, the government took physical control of parts of the Horne's raisin crop, withholding it from the market in order to influence raisin prices. Under other agricultural programs, growers are permitted to send to market only certain quantities of the produce, though the government never takes physical control of the goods. Just how sweeping is the Horne decision? Does it apply to all forms of personal property? What level of control must the government exercise over personal property in order for there to be a compensable taking? Are these other agricultural programs now suspect?


  • Prof. John D. Echeverria, Vermont Law School
  • Hon. Michael W. McConnell, Professor of Law and Director, Stanford Constitutional Law Center, Stanford Law School

Hands Off My Raisins: Supreme Court Decides Horne v. Department of Agriculture - Podcast

Environmental Law & Property Rights Practice Group Podcast
John Elwood June 25, 2015

Under what circumstances can the government take your property without giving you compensation? Does it matter whether it is real property or personal property? On June 22, with an interesting alignment of justices, the U.S. Supreme Court decided Horne v. Department of Agriculture, addressing these and other questions.

  • John Elwood, Partner, Vinson & Elkins LLP

The Grasping Hand: "Kelo v. City of New London" and the Limits of Eminent Domain - Podcast

Environmental Law & Property Rights Practice Group Podcast
Richard A. Epstein, Ilya Somin June 05, 2015

On June 23, 2005, the Supreme Court ruled that the city of New London, Connecticut, could condemn fifteen residential properties in order to transfer them to a new private owner. Although the Fifth Amendment only permits the taking of private property for "public use," the Court ruled that the transfer of condemned land to private parties for "economic development" is permitted by the Constitution. In his new book, published by the University of Chicago Press, The Grasping Hand: "Kelo v. City of New London" and the Limits of Eminent Domain, Prof. Ilya Somin argues that the closely divided 5-4 ruling in Kelo was a grave error. Prof. Somin provides a detailed study of the case, as well as of the new laws intended to limit the use of eminent domain passed in forty-five states during the political backlash following the decision, alongside a broader history of the dispute over public use and eminent domain and an evaluation of options for reform.

With the 10th anniversary of the Kelo decision approaching, Prof. Somin joined a Teleforum program to discuss the book, with Prof. Richard Epstein joining to offer his comments.

  • Prof. Ilya Somin, Author, The Grasping Hand: "Kelo v. City of New London" and the Limits of Eminent Domain, and Professor of Law, George Mason University School of Law
  • Prof. Richard A. Epstein, Laurence A. Tisch Professor of Law, New York University School of Law

Hana Financial v. Hana Bank - Post-Decision SCOTUScast

SCOTUScast 5-11-15 featuring Michael Risch
Michael Risch May 11, 2015

On January 21, 2014, the Supreme Court issued its decision in Hana Financial, Inc. v. Hana Bank. This trademark case involved a rule called "tacking", which permits the owner of a trademark to modify the trademark without losing the priority established by being the first user of the trademark. Tacking, however, is only permitted as long as the modified trademark establishes "the same, continuing commercial impression so that consumers consider both as the same mark."

The question in this case was whether the judge or the jury should determine whether a consumer would consider the original trademark and the modified trademark to be the same.

In an opinion delivered by Justice Sotomayor, the Court unanimously held that the jury, rather than a court, should determine whether the use of an older trademark may be tacked to a newer one.  The judgment of the Ninth Circuit was affirmed.

To discuss the case, we have Michael Risch, who is a Professor of Law at the Villanova University School of Law.