Peter S. Menell (University of California, Berkeley - School of Law) has posted Intellectual Property and the Law of Land (Regulation, Vol. 30, No. 4, 2008, UC Berkeley Public Law Research Paper No. 1078982) on SSRN. Here is the abstract:
In an earlier article, Intellectual Property and the Property Rights Movement, I examined the recent efforts of some adherents of the Property Rights Movement to expand the property tent to encompass intellectual property. I questioned Professor Richard Epstein's assertion of structural unity between real and intellectual property and use of real property rhetoric in an amicus brief filed in the Supreme Court's consideration of eBay v. MercExchange - a case focusing on the standards for granting injunctive relief in patent cases. The present article responds to Professor Epstein's reply. I contend that Professor Epstein's more recent writings diverge from a more balanced and nuanced view of intellectual property that he advocated in 2001. I further show that the Supreme Court's more flexible approach to patent remedies better comports with utilitarian principles than a rigid rule calling for permanent injunctions (except in exceptional circumstances) whenever liability is found.
