Larissa M. Katz: A Powers-Based Approach to the Protection of Ideas

Larissa M. Katz, Queens University, Faculty of Law, has published “A Powers-Based Approach to the Protection of Odeas (sic)” via SSRN (note the error in SSRN’s transcription of the paper’s title–it should be “Ideas.”). Here is the abstract.

This paper provides a unified account of idea-submission law in terms of legal powers. It argues that the duty upon a recipient of a novel and original idea results from the exercise of a legal power that the law confers on originators in order to enable them to share their ideas selectively. This paper contributes to our understanding of idea-submission law and to private law theory more generally in a number of ways that have not been addressed in the literature. First, it systematically reveals the lack of fit between the case law and conventional legal theories for the protection of ideas. Second, it provides an account that accommodates the core criteria for the protection of ideas while illuminating the interests and values served by this area of the law. Finally, this paper articulates an important principle at work in Anglo-American law that limits the scope of an originator’s power to control disclosure: the imposition of special duties is appropriate only where there is some minimum foundation of voluntariness. Anglo-American law is reluctant to recognize duties that inescapably flow from unavoidable positions, such as the duty to rescue, whereas it accepts a category of duties I call positional duties: duties that inescapably flow from avoidable positions. I place the duty not to use or disclose another’s novel and original idea in this category of duties.

The draft is available here via SSRN.