On 2/13/97, Mark Lemley <mlemley[_at_]mail.law.utexas.edu> wrote:
>
> I don't think state power to regulate necessarily follows from a
> limitation on federal power. After all, Congress has the exclusive
> power to pass uniform bankruptcy laws, but that doesn't mean states
> are automatically reserved the power to pass non-uniform ones.
> Congress can enact a patent statute only for limited times, but there
> seems to me no question that a state could not enact its own patent
> statute and defend it against preemption on the grounds that it gave
> protection for *unlimited* times. In both cases, Congress can't act
> because of constitutional limitations, but that doesn't free the
> states to act. To the extent that Feist is a constitutional case, I
> think the same argument can be made.
But states have insolvency laws, no? And the uniformity the Bankruptcy Clause deals with is as between the states, so that any state's insolvency law is "non-uniform" in the sense the term is used in the Bankruptcy Clause if it differs in any material respect from any other state's law.
But of course your bankruptcy example was facetious. The patent question I take as more serious, as it gets to the heart of the matter in the IP clause: just what are a state's powers, even though Congress has not been given explicitly exclusive authority? There are many state regulations that affect interstate commerce, and the Supreme Court has spent many hours limning the boundaries of state power under the Commerce Clause (including trademarks). It seems to me that the IP clause deserves as much thoughtful analysis as the Commerce Clause, and that the court in NBA didn't give it that kind of analysis.
As a constitutional matter I agree that when Congress elects to pre-empt a field of regulation in which it has been granted power it should be allowed to do so, since to do otherwise would negate the existence of a federal government. That still begs the question of whether, in the absence of a clear Congressional exercise of power, a state authority that has existed in tandem with the federal power for many years without much apparent controversy can be so lightly abrogated.
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I'm posting this call to papers to the list even though it is not copyright specific, since copyright papers would be very welecome, and I'm sure a few advance degree students subscribe to this list, as well as quite a few faculty who might have papers they want to recommend.
Shelly Warwick
swarwick[_at_]way.com
(wearing her ASIS Metro Board Member hat)
Per your request. I've been out of the office for the past week and a half, and I have no access to e-mail at home.
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Metropolitan New York Chapter
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CALL FOR PAPERS
GRADUATE RESEARCH FORUM
Friday, May 9, 1997
10:00 a.m. to 4:00 p.m.
Puck Building
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Sponsored by The Metropolitan New York Chapter of the American Society
for Information Science & The Pratt Institute School of Information
and Library Science.
Faculty in any of the information disciplines are asked to select and
sponsor a suitable paper by graduate students (either doctoral or masters
level) for inclusion in the Forum. Research in the areas of information
science, information management, library science, scientific information,
business information, computer science, or computer/information engineering
is welcomed. Faculty sponsors are invited to attend the Forum and introduce
the student(s) whose paper they recommend. Fees for Forum attendance
(including lunch) are waived for presenters.
A committee will select the papers for inclusion in the Forum. Evaluation
for inclusion will be based on the abstract. Additionally, a $100 prize
will be awarded for the best paper presented. Papers shall be appraised in
terms of relevance, originality, clarity of expression, appropriateness of
methodology.
Submissions should include:
a. The title and a 150-300 word abstract
b. A short professional biography of the author(s)
c. Phone number, address and e-mail of the presenter
d. Phone number, address and e-mail of the faculty sponsor
e. A signed note from the faculty sponsor indicating sponsorship of
the presenter.
All abstracts must be submitted on diskette as either Microsoft Word or
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The submission deadline for abstracts and biographical information is March
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submitted in triplicate and on disk by April 28, 1997.
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paper will published in the chapter newsletter.
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Received on Sat Feb 22 1997 - 21:09:09 GMT
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