Public Rights After Oil States Energy

Adam J. MacLeod*

The concept of public rights plays an important role in the jurisprudence of the Supreme Court of the United States. But as the decision in Oil States last Term revealed, the Court has often used the term to refer to three different concepts with different jurisprudential implications. Using insights drawn from historical and analytical jurisprudence, this Article distinguishes the three concepts and examines how each of them is at work in patent law. A precise reading of Oil States also bears lessons for other areas of law that implicate both private rights and duties and the administration of public, regulatory schemes.

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© 2020 Adam J. MacLeod. Individuals and nonprofit institutions may reproduce and distribute copies of this Article in any format at or below cost, for educational purposes, so long as each copy identifies the author, provides a citation to the Notre Dame Law Review, and includes this provision in the copyright notice.

*Professor of Law, Faulkner University, Thomas Goode Jones School of Law. This project was made possible in part by a research fellowship from the Center for the Protection of Intellectual Property (CPIP) at George Mason University, Antonin Scalia Law School. I presented drafts or parts of this paper at CPIP workshops, in a public lecture at Louisiana State University’s Law Center, sponsored by the Eric Voegelin Institute for American Renaissance Studies, and at a conference in Brussels, Belgium cohosted by the Acton Institute and Sallux ECPM Foundation. I am particularly grateful for helpful comments from Paul Baier, Daniel Cahoy, Eric Claeys, Trey Dimsdale, Raff Donelson, John Duffy, Adam Mossoff, Lateef Mtima, Keith Robinson, Silviu Rogobete, Ted Sichelman, and James Stoner.