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Lawyer Felix S. Cohen was best known for his work in “Indian” law. He worked in the Roosevelt Administration in the New Deal to end the failed attempts to “assimilateNative Americans, and instead promote legal reforms which laid the groundwork for the revival of tribal sovereignty. Cohen's “Handbook in Federal Indian Law” (US.GPO ed. 1941) is the leading treatise in the field.

He was also a prominent legal theorist, and wrote several influential law review articles in the Legal Realism movement. See, e.g., Cohen, Felix, "The Ethical Basis of Legal Criticism," 41 Yale L.J. 201 (1931); “Transcendental Nonsense and the Functional Approach”, 35 Colum. L. Rev. 809, 814-817 (1935).

Here is an excerpt from Transcendental Nonsense which addresses intellectual property issues of current interest:


What's in a Trade Name?

The divorce of legal reasoning from questions of social fact and ethical value is not a product of crusty legal fictions inherited from darker ages. Even in the most modern realms of legal development one finds the thoughts of courts and of legal scholars trapezing around in cycles and epicycles without coming to rest on the floor of verifiable fact. Modern developments in the law of unfair competition offer many examples of such circular reasoning. *** The current legal arguments runs: One who by the ingenuity of his advertising or the quality of his product has induced consumer responsiveness to a particular name, symbol, form of packaging, etc., has thereby created a thing of value, a thing of value is property; the creator of property is entitled to protection against third parties who seek to deprive him of his property. This argument may be embellished, in particular cases, with animadversions upon the selfish motives of the infringing defendant, a summary of the plaintiff's evidence (naturally uncontradicted) as to the amount of money he has spent in advertising, and insinuations (seldom factually supported) as to the inferiority of the infringing defendant's product.
The vicious circle inherent in this reasoning is plain. It purports to base legal protection upon economic value, when, as a matter of actual fact, the economic value of a sales device depends upon the extent to which it will be legally protected. If commercial exploitation of the word "Palmolive" is not restricted to a single firm, the word will be of no more economic value to any particular firm than a convenient size, shape, mode of packing, or manner of advertising, common in the trade. *** The circularity of legal reasoning in the whole field of unfair competition is veiled by the "thingification" of property. Legal language portrays courts as examining commercial words and finding, somewhere inhering in them, property rights. It is by virtue of the property right which the plaintiff has acquired in the word that he is entitled to an injunction or an award of damages. According to the recognized authorities on the law of unfair competition, courts are not creating property, but are merely recognizing a preexistent Something.*** What courts are actually doing, of course, in unfair competition cases, is to create and distribute a new source of economic wealth or power. Language is socially useful apart from law, as air is socially useful, but neither language nor air is a source of economic wealth unless some people are prevented from using these resources in ways that are permitted to other people. That is to say, property is a function of inequality. If courts, for instance, should prevent a man from breathing any air which had been breathed by another (within, say, a reasonable statute of limitations), those individuals who breathed most vigorously and were quickest and wisest in selecting desirable locations in which to breathe (or made the most advantageous contracts with such individuals) would, by virtue of their property right in certain volumes of air, come to exercise and enjoy a peculiar economic advantage, which might, though various modes of economic exchange, be turned into other forms of economic advantage, e.g. the ownership of newspapers or fine clothing. So, if courts prevent a man from exploiting certain forms of language which another has already begun to exploit, the second user will be at the economic disadvantage of having to pay the first user from the privilege of using similar language or else of having to use less appealing language (generally) in presenting his commodities to the public. *** The prejudice that identifies the interests of the plaintiff in unfair competition cases with the interest of business and identifies the interests of business with the interests of society, will not be critically examined by courts and legal scholars until it is recognized and formulated. It will not be recognized or formulated so long as the hypostatization of "property rights" conceals the circularity of legal reasoning.

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