Stuntz, Schauer, and Miller:
The January issue of the Harvard Law Review has been posted on line, and it features three very strong contributions: Bill Stuntz's The Political Constitution of Criminal Justice, a terrific and important article I blogged about a few months ago when it was in draft form; a review by Fred Schauer of the new biography of H.L.A. Hart (a book I recently started reading, and so far is excellent), and an interesting article by Arthur Miller, Common Law Protections for Products of the Mind: An "Idea" Whose Time Has Come. The introduction of Miller's article has one of the more unusual passages I have read in a while:
I began this Article in the fall of 1956 — that’s right, just about fifty years ago. As a second-year law student on the Harvard Law Review, I had become fascinated with copyright and for my Note was assigned the topic of legal protection for noncopyrightable and nonpatentable mental creativity — ideas. I dutifully prepared a preliminary draft, ran the gauntlet of what was then called "intermediate editing," and ultimately produced a polished draft ready for final editing. Then, out of the blue, a funny thing happened on the way to publication.
The Review’s president and I were asked to confer with the University’s outside counsel. He informed us that the Law School and its then Dean, Erwin N. Griswold, had been sued by an angry Argentinean who claimed that a series of books on the tax systems of other nations, which the School was developing in conjunction with the United Nations, was based on his idea. Publication of my work product while the litigation was pending would have presented a classic catch-22. A Note sympathetic to idea protection would be used by the plaintiff’s counsel against Harvard and Dean Griswold; a Note rejecting idea protection would be seen as propaganda for the school and the Dean, lack credibility, and damage the Review’s reputation.
We concluded that discretion was the better part of valor, and the Note was placed on the "back burner" until the case ended. . . .
In the years between then and now I have loved, litigated, taught, and written on questions of intellectual property, nurturing the thought that sooner or later I would finish my "2L Note." . . . To that end, this Note of my youth — turned Article of my maturity — seeks to reconceive and render rational the law of ideas.