Glen 0. Robinsont This Article explores the lawfulness of servitudes on personal property in both... more Glen 0. Robinsont This Article explores the lawfulness of servitudes on personal property in both common law and intellectual property regimes. The common law has from ancient times recognized the general right of owners of real property to burden land with restrictions on userestrictions that "run with the land"-subject to various conditions and limitations. It has been more ambivalent about similar restrictions on personal property. Why? That question was broached seventy-five years ago by Zechariah Chafee, though he never fully answered it. Today, the question has acquired a new importance because of the pervasive use of computer software licensing restrictions that, for all practical purposes, can be regarded as a form of property servitude. Software licensing restrictions implicate specialized rules of intellectual property, such as the first sale doctrine. However, those rules are basically derived from common law policies (most notably policies against restraints on alienation and restraints of trade), so the question about the legality of such restrictions is essentially no different for intellectual property from that question in the context of personal property at common law. This Article argues that the traditional hostility to use and resale restraints on personal property is misguided in both the common law and intellectual property contexts. While there may be legitimate reasons for limiting an owner's right to impose post-transfer restrictions on use and resale, those reasons are more exceptional than has been commonly assumed. Moreover, in the new digital world where servitude-type restrictions can be engineered into the architecture of the property itself, public policy restrictions on contractual "servitudes" may prove to be ineffectual, creating a new reason to take a fresh look at old conceptions of personal property servitudes. Covenants that run with the land were first recognized at common law in Spencer's Case, 1449 7
Perceived liberalization of this exception provoked a spate of legislative enactments on the use ... more Perceived liberalization of this exception provoked a spate of legislative enactments on the use of the doctrine of res ipsa loquitur and on the requirement for expert testimony, but it does not appear that the traditional common law rules have been much changed.
PORT TO THE ADMINSTRATTVE CONFERENCE, LICENSING OF MAJOR BROADCAST FACILITIES BY THE FEDERAL COMM... more PORT TO THE ADMINSTRATTVE CONFERENCE, LICENSING OF MAJOR BROADCAST FACILITIES BY THE FEDERAL COMMUNICATIONS COMMISSION 3-6 (1962). 8. For a useful summary of these two types of allocation of the radio spectrum and of the principal components of the -economic structure of the broadcasting industry; see VT. JONES, CASES AND MATERIALS ON REGULATED INDUSTRIES 1032-63 (1967)., 9. 47 C.F.R. § 73.21 (1967). 10. The normally protected contour concept is far too technical and complex for discussion here. It is :fficient to note that the concept of normally protected contour involves a relationship between (a) a signal by the protected station of specified strength (for most AM stations, the 0.5 millivolt/meter ground wave signal is protected during the day) and (b) the interfering signal of another station which exceeds a specified strength (which varies depending on whether the signal is co-channel or adjacent channel) such that the desired station's service in those areas which it is designed to serve is free of objectionable interference from the undesired station.
University of Pennsylvania Law Review, Feb 1, 1970
Few complaints about administrative law are pressed more insistently than the charge that the adm... more Few complaints about administrative law are pressed more insistently than the charge that the administrative process is "overjudicialized."1 Although discordant notes to the contrary are sometimes heard,' the dominant chord of criticism has long been that administrative agencies have become too attached to judicial forms of proceeding, particularly when formulating policy rules and standards. The suggestion has been made that to improve agency performance, policy-making and judicial functions should be separated and allocated to different agencies.' However, institutional separation has thus far won few supporters." Nevertheless, there continues to be widespread concern that agencies tend to subordinate broad policy planning to
Glen 0. Robinsont This Article examines refusals to deal with competitive rivals as an antitrust ... more Glen 0. Robinsont This Article examines refusals to deal with competitive rivals as an antitrust offense. It claims that refusals to deal should be eliminated as a separate violation except in the unique case of essential facilities. This Article first examines the confusing distinction between singlefirm and group refusals, and concludes that both should be adjudicated under the same liability rule. The misunderstanding about the standards of liability as between concerted and singlefirm refusals pales beside a larger confusion about why refusals to deal are an antitrust offense at all. The Supreme Court has offered neither a theory nor a coherent standard requiring a dominant firm to deal with rivals. This Article argues that the essential facilities doctrine presents a duty to deal framework that is both coherent and limited. There remain, however, a number of vexing issues concerning the doctrine's scope and application, as illustrated by two on-going controversies in communications law involving competitors' access to dominant firm facilities.
Critics of affirmative action policies contend that the elimination of racial preferences in coll... more Critics of affirmative action policies contend that the elimination of racial preferences in college admissions would lead to a “more-able” student body. In a system in which other non-meritocratic elements other than race play an important role there is no reason to think that the slot filled by the race-preferred candidate will be filled by another candidate of higher “quality.”
Astrologers tell us that the approaching new millennium will be the "age of Aquarius." Social sci... more Astrologers tell us that the approaching new millennium will be the "age of Aquarius." Social scientists and kindred pundits tell us it will be the "age of information." The new age could be both: an Aquarian age of harmony and understanding produced by pervasive information technologies and services. I know of no astrological authority for such a convergence, but there does seem to be quite a lot of mundane support for it in the current outpouring of writing about the brave new world of bit streams coming our way.
Glen 0. Robinsont Gerald R. Faulhaber's Telecommunications in Turmoil: Technology and Public Poli... more Glen 0. Robinsont Gerald R. Faulhaber's Telecommunications in Turmoil: Technology and Public Policy 1 chronicles the breakup of AT&T consequent to Judge Harold Greene's approval of the Justice Department-AT&T consent settlement in 1982 (colloquially known as the modified final judgment or MFJ). 2 Some saw the breakup as a disaster on the order of the sinking of the Titanic:' "they were sad when the great ship went down.' 4 While people mourned the Titanic as a human tragedy, however, probably no one thought of the AT&T breakup in quite that way; Ma Bell was not, after all, mom. Still, she was held in fairly high regard. In contrast to other monopolists we've loved to hate-railroads, gas utilities, broadcast
It is traditional in administrative law to distinguish broadly between rulemaking and adjudicatio... more It is traditional in administrative law to distinguish broadly between rulemaking and adjudication. Most of the federal Administrative Procedure Act ("APA") is structured around just such a distinction. In theory the distinction conforms to the two different tasks involved: the making of law and its application. Plainly, that theory has a rather tenuous connection with reality. There is no simple, clear-cut dichotomy between making law and applying it. Courts make law as much as legislatures do. The difference, of course, lies in how they do it. According to the classic model, adjudication makes law in the course of settling individual cases and problems as they arise. By contrast to such an ad hoc, case-by-case process, rulemaking involves a deliberate effort to create general law independent of any individual controversy, party, or circumstance. One might say that adjudication makes law at the margin of existing law while rulemaking is free to disregard the margin altogether. Such a statement is somewhat simplistic, for adjudicators may manipulate cases to make them purely vehicles for law-* We wish to thank Richard Merrill and Ronald Cass for helpful comments.
6 This has been the prevailing assumption since Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803),... more 6 This has been the prevailing assumption since Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803), when the Supreme Court assumed power over the actions of the other branches, which have yet to establish a reciprocal power over actions of the Court. 7 See THE FEDERALIST, supra note 4. 8 See, e.g., L. JAFFE, supra note 1. 9 One commonly encounters the following arguments: that the President has usurped Congress's power to declare war; that the Supreme Court has usurped Congress's power to regulate the economy; that Congress has usurped the President's executive power, and so on. Such alleged usurpations may violate the separation-of-powers principle, but they do not involve delegations of power. Of course, a fine line exists between delegations and usurpations. For example, the President or an agency might assert the existence of a power that Congress would have granted nonetheless, or would have refused to grant had the President or agency not acted preemptorily. 10 Agency exercise of judicial power was once thought to present a delegation problem with respect to some factual adjudications. See, e.g., Crowell v. Benson, 285 U.S. 22 (1932) (requiring de novo judicial examination of agency determinations of "constitutional facts"). Agency adjudications are no longer believed to present a delegation problem. See I K. DAVIS, ADMINISTRATIVE LAW TREATISE § 3:10.(2d ed. 1978). 11 C.. ,,R,.-dv v-Valeo. 424 U.S. 1 (1976) (invalidating delegation of administrative 1982] CORNELL LAW REVIEW the executive 12 provide examples of this application. Only this last application, however, has figured prominently in constitutional jurisprudence, and it is the concern of this article. The delegation of legislative power is an old concern, older than the Constitution or even than the separation-of-powers principle. According to Locke, one of the four unbreachable boundaries confining legislative authority was that: The Legislative cannot transfer the Power of Making Laws to any other hands. For it being but a delegated Power from the People, they, who have it, cannot pass it over to others .... And when the people have said, We will submit to rules, and be govern'd by Laws made by such Men, and in such Forms, no Body else can say other Men shall make Laws for them; nor can the people be bound by any Laws but such as are Enacted by those, whom they have Chosen, and Authorised to make Laws for them. The power of the Legislative being derived from the People by a positive voluntary Grant and Institution, can be no other, than what the positive Grant conveyed, which being only to make Laws, and not to make Legislators, the Legislative can have no power to transfer their Authority of making laws, and place it in other hands.' 3 Locke's insistence that legislators cannot delegate their legislative authority derives from an ancient rule of agency law: power entrusted to an agent as a consequence of his special fitness cannot be delegated, because such a delegation would be inconsistent with the purposes of the initial transfer.' 4 Locke's formulation makes this private-law principle one of public law: as agents of the people, legislators cannot transfer their power to others. The rule's theoretical import for government is less a fear of the delegate's possible misuse of power than a belief that the people have agreed to relinquish their most important power only to representatives that they alone have chosen. For the contractarian tradition that Locke represents the lawmaking power is central, because through it the people relinquish private autonomy and accept collecpowers to legislative agency composed of those officials not "officers of the United States" subject to presidential appointment). 12 See, e.g., A.L.A. Schechter Poultry Corp. v. United States, 295 U.S. 495 (1935).
This volume is intended as a handbook to assist government and private counsel engaged in federal... more This volume is intended as a handbook to assist government and private counsel engaged in federal administrative adjudication. It covers all of the major issues relating to formal and informal adjudication, including the right to a hearing under due process and the Administrative Procedure Act (APA), as well as the requirements relating to the pre-hearing, hearing, and post-hearing phases. It also covers the APA's provisions relating to the integrity of the decisionmaking process. The book considers the statutory protections for the independence of administrative law judges under the APA and the right to attorneys' fees under the Equal Access to Justice Act.
Astrologers tell us that the approaching new millennium will be the "age of Aquarius." Social sci... more Astrologers tell us that the approaching new millennium will be the "age of Aquarius." Social scientists and kindred pundits tell us it will be the "age of information." The new age could be both: an Aquarian age of harmony and understanding produced by pervasive information technologies and services. I know of no astrological authority for such a convergence, but there does seem to be quite a lot of mundane support for it in the current outpouring of writing about the brave new world of bit streams coming our way.
Glen 0. Robinsont This Article explores the lawfulness of servitudes on personal property in both... more Glen 0. Robinsont This Article explores the lawfulness of servitudes on personal property in both common law and intellectual property regimes. The common law has from ancient times recognized the general right of owners of real property to burden land with restrictions on userestrictions that "run with the land"-subject to various conditions and limitations. It has been more ambivalent about similar restrictions on personal property. Why? That question was broached seventy-five years ago by Zechariah Chafee, though he never fully answered it. Today, the question has acquired a new importance because of the pervasive use of computer software licensing restrictions that, for all practical purposes, can be regarded as a form of property servitude. Software licensing restrictions implicate specialized rules of intellectual property, such as the first sale doctrine. However, those rules are basically derived from common law policies (most notably policies against restraints on alienation and restraints of trade), so the question about the legality of such restrictions is essentially no different for intellectual property from that question in the context of personal property at common law. This Article argues that the traditional hostility to use and resale restraints on personal property is misguided in both the common law and intellectual property contexts. While there may be legitimate reasons for limiting an owner's right to impose post-transfer restrictions on use and resale, those reasons are more exceptional than has been commonly assumed. Moreover, in the new digital world where servitude-type restrictions can be engineered into the architecture of the property itself, public policy restrictions on contractual "servitudes" may prove to be ineffectual, creating a new reason to take a fresh look at old conceptions of personal property servitudes. Covenants that run with the land were first recognized at common law in Spencer's Case, 1449 7
Perceived liberalization of this exception provoked a spate of legislative enactments on the use ... more Perceived liberalization of this exception provoked a spate of legislative enactments on the use of the doctrine of res ipsa loquitur and on the requirement for expert testimony, but it does not appear that the traditional common law rules have been much changed.
PORT TO THE ADMINSTRATTVE CONFERENCE, LICENSING OF MAJOR BROADCAST FACILITIES BY THE FEDERAL COMM... more PORT TO THE ADMINSTRATTVE CONFERENCE, LICENSING OF MAJOR BROADCAST FACILITIES BY THE FEDERAL COMMUNICATIONS COMMISSION 3-6 (1962). 8. For a useful summary of these two types of allocation of the radio spectrum and of the principal components of the -economic structure of the broadcasting industry; see VT. JONES, CASES AND MATERIALS ON REGULATED INDUSTRIES 1032-63 (1967)., 9. 47 C.F.R. § 73.21 (1967). 10. The normally protected contour concept is far too technical and complex for discussion here. It is :fficient to note that the concept of normally protected contour involves a relationship between (a) a signal by the protected station of specified strength (for most AM stations, the 0.5 millivolt/meter ground wave signal is protected during the day) and (b) the interfering signal of another station which exceeds a specified strength (which varies depending on whether the signal is co-channel or adjacent channel) such that the desired station's service in those areas which it is designed to serve is free of objectionable interference from the undesired station.
University of Pennsylvania Law Review, Feb 1, 1970
Few complaints about administrative law are pressed more insistently than the charge that the adm... more Few complaints about administrative law are pressed more insistently than the charge that the administrative process is "overjudicialized."1 Although discordant notes to the contrary are sometimes heard,' the dominant chord of criticism has long been that administrative agencies have become too attached to judicial forms of proceeding, particularly when formulating policy rules and standards. The suggestion has been made that to improve agency performance, policy-making and judicial functions should be separated and allocated to different agencies.' However, institutional separation has thus far won few supporters." Nevertheless, there continues to be widespread concern that agencies tend to subordinate broad policy planning to
Glen 0. Robinsont This Article examines refusals to deal with competitive rivals as an antitrust ... more Glen 0. Robinsont This Article examines refusals to deal with competitive rivals as an antitrust offense. It claims that refusals to deal should be eliminated as a separate violation except in the unique case of essential facilities. This Article first examines the confusing distinction between singlefirm and group refusals, and concludes that both should be adjudicated under the same liability rule. The misunderstanding about the standards of liability as between concerted and singlefirm refusals pales beside a larger confusion about why refusals to deal are an antitrust offense at all. The Supreme Court has offered neither a theory nor a coherent standard requiring a dominant firm to deal with rivals. This Article argues that the essential facilities doctrine presents a duty to deal framework that is both coherent and limited. There remain, however, a number of vexing issues concerning the doctrine's scope and application, as illustrated by two on-going controversies in communications law involving competitors' access to dominant firm facilities.
Critics of affirmative action policies contend that the elimination of racial preferences in coll... more Critics of affirmative action policies contend that the elimination of racial preferences in college admissions would lead to a “more-able” student body. In a system in which other non-meritocratic elements other than race play an important role there is no reason to think that the slot filled by the race-preferred candidate will be filled by another candidate of higher “quality.”
Astrologers tell us that the approaching new millennium will be the "age of Aquarius." Social sci... more Astrologers tell us that the approaching new millennium will be the "age of Aquarius." Social scientists and kindred pundits tell us it will be the "age of information." The new age could be both: an Aquarian age of harmony and understanding produced by pervasive information technologies and services. I know of no astrological authority for such a convergence, but there does seem to be quite a lot of mundane support for it in the current outpouring of writing about the brave new world of bit streams coming our way.
Glen 0. Robinsont Gerald R. Faulhaber's Telecommunications in Turmoil: Technology and Public Poli... more Glen 0. Robinsont Gerald R. Faulhaber's Telecommunications in Turmoil: Technology and Public Policy 1 chronicles the breakup of AT&T consequent to Judge Harold Greene's approval of the Justice Department-AT&T consent settlement in 1982 (colloquially known as the modified final judgment or MFJ). 2 Some saw the breakup as a disaster on the order of the sinking of the Titanic:' "they were sad when the great ship went down.' 4 While people mourned the Titanic as a human tragedy, however, probably no one thought of the AT&T breakup in quite that way; Ma Bell was not, after all, mom. Still, she was held in fairly high regard. In contrast to other monopolists we've loved to hate-railroads, gas utilities, broadcast
It is traditional in administrative law to distinguish broadly between rulemaking and adjudicatio... more It is traditional in administrative law to distinguish broadly between rulemaking and adjudication. Most of the federal Administrative Procedure Act ("APA") is structured around just such a distinction. In theory the distinction conforms to the two different tasks involved: the making of law and its application. Plainly, that theory has a rather tenuous connection with reality. There is no simple, clear-cut dichotomy between making law and applying it. Courts make law as much as legislatures do. The difference, of course, lies in how they do it. According to the classic model, adjudication makes law in the course of settling individual cases and problems as they arise. By contrast to such an ad hoc, case-by-case process, rulemaking involves a deliberate effort to create general law independent of any individual controversy, party, or circumstance. One might say that adjudication makes law at the margin of existing law while rulemaking is free to disregard the margin altogether. Such a statement is somewhat simplistic, for adjudicators may manipulate cases to make them purely vehicles for law-* We wish to thank Richard Merrill and Ronald Cass for helpful comments.
6 This has been the prevailing assumption since Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803),... more 6 This has been the prevailing assumption since Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803), when the Supreme Court assumed power over the actions of the other branches, which have yet to establish a reciprocal power over actions of the Court. 7 See THE FEDERALIST, supra note 4. 8 See, e.g., L. JAFFE, supra note 1. 9 One commonly encounters the following arguments: that the President has usurped Congress's power to declare war; that the Supreme Court has usurped Congress's power to regulate the economy; that Congress has usurped the President's executive power, and so on. Such alleged usurpations may violate the separation-of-powers principle, but they do not involve delegations of power. Of course, a fine line exists between delegations and usurpations. For example, the President or an agency might assert the existence of a power that Congress would have granted nonetheless, or would have refused to grant had the President or agency not acted preemptorily. 10 Agency exercise of judicial power was once thought to present a delegation problem with respect to some factual adjudications. See, e.g., Crowell v. Benson, 285 U.S. 22 (1932) (requiring de novo judicial examination of agency determinations of "constitutional facts"). Agency adjudications are no longer believed to present a delegation problem. See I K. DAVIS, ADMINISTRATIVE LAW TREATISE § 3:10.(2d ed. 1978). 11 C.. ,,R,.-dv v-Valeo. 424 U.S. 1 (1976) (invalidating delegation of administrative 1982] CORNELL LAW REVIEW the executive 12 provide examples of this application. Only this last application, however, has figured prominently in constitutional jurisprudence, and it is the concern of this article. The delegation of legislative power is an old concern, older than the Constitution or even than the separation-of-powers principle. According to Locke, one of the four unbreachable boundaries confining legislative authority was that: The Legislative cannot transfer the Power of Making Laws to any other hands. For it being but a delegated Power from the People, they, who have it, cannot pass it over to others .... And when the people have said, We will submit to rules, and be govern'd by Laws made by such Men, and in such Forms, no Body else can say other Men shall make Laws for them; nor can the people be bound by any Laws but such as are Enacted by those, whom they have Chosen, and Authorised to make Laws for them. The power of the Legislative being derived from the People by a positive voluntary Grant and Institution, can be no other, than what the positive Grant conveyed, which being only to make Laws, and not to make Legislators, the Legislative can have no power to transfer their Authority of making laws, and place it in other hands.' 3 Locke's insistence that legislators cannot delegate their legislative authority derives from an ancient rule of agency law: power entrusted to an agent as a consequence of his special fitness cannot be delegated, because such a delegation would be inconsistent with the purposes of the initial transfer.' 4 Locke's formulation makes this private-law principle one of public law: as agents of the people, legislators cannot transfer their power to others. The rule's theoretical import for government is less a fear of the delegate's possible misuse of power than a belief that the people have agreed to relinquish their most important power only to representatives that they alone have chosen. For the contractarian tradition that Locke represents the lawmaking power is central, because through it the people relinquish private autonomy and accept collecpowers to legislative agency composed of those officials not "officers of the United States" subject to presidential appointment). 12 See, e.g., A.L.A. Schechter Poultry Corp. v. United States, 295 U.S. 495 (1935).
This volume is intended as a handbook to assist government and private counsel engaged in federal... more This volume is intended as a handbook to assist government and private counsel engaged in federal administrative adjudication. It covers all of the major issues relating to formal and informal adjudication, including the right to a hearing under due process and the Administrative Procedure Act (APA), as well as the requirements relating to the pre-hearing, hearing, and post-hearing phases. It also covers the APA's provisions relating to the integrity of the decisionmaking process. The book considers the statutory protections for the independence of administrative law judges under the APA and the right to attorneys' fees under the Equal Access to Justice Act.
Astrologers tell us that the approaching new millennium will be the "age of Aquarius." Social sci... more Astrologers tell us that the approaching new millennium will be the "age of Aquarius." Social scientists and kindred pundits tell us it will be the "age of information." The new age could be both: an Aquarian age of harmony and understanding produced by pervasive information technologies and services. I know of no astrological authority for such a convergence, but there does seem to be quite a lot of mundane support for it in the current outpouring of writing about the brave new world of bit streams coming our way.
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