Rights are inherently anti-majoritarian.

72, no. 3 (Summer 2023): 359-414, dml) [language modifications denoted by brackets]

This article puts forward for consideration one classical property concept that has played an important role in patent law, 7 and which continues to perform conceptual work in the field: 18 the vested private right.19 The concept of vested rights helps make sense of patent law. It is also tied to claims of equal justice. In practice, vested rights are inherently anti-majoritarian, and therefore especially beneficial for the protection of minority rights. Doctrines of vested private rights have been used on several occasions in American history to secure the rights of former slaves, Native peoples, and other minority groups.

Thus, the vested right serves both as a legal concept to make sense of patent law and as an important legal security for equal legal justice. When inventors have been unjustly deprived of their rights because of their race or status as slaves, the rights of which they were deprived were vested rights in their inventions. 2 The wrong consists not only in a kind of group or identity-based inequality but also in acts of wrongdoing against particular persons, depriving them of rights that they possessed as human beings, bearers of equal dignity who were entitled to the law's equal protection. And where racial minorities have been treated justly, their just treatment before the law consisted precisely in the vindication and recognition of their vested patent rights. 21

Vested rights, and private intellectual property rights generally, now face intellectual headwinds in legal scholarship. According to the now-conventional account, the Legal Realists debunked the notion of vested private rights. Rights are neither determinate nor efficacious until settled in an act of legal judgment, usually by a judge. But that account is difficult to reconcile with judges' use of classical legal concepts, such as vested rights, to direct and even determine their judgments. Judges who understand themselves to be obligated by law act as though their judgments are the products of legal rights, rather than the other way around.

A more radical challenge comes from critical theories, especially Critical Legal Studies and Critical Race Theory. Those theories cast a skeptical eye on classical legal concepts, especially concepts of property rights. They understand classical concepts, especially liberal rights, to be social conventions or discursive regimes adopted by the powerful to exclude and discriminate against the marginalized and the weak. Critical theories call attention to some important truths, for example that the way we define and use words can make some ideas unthinkable, and that who exercises power to craft legal concepts and terms thus wields a formidable power. But as argued below, critical theories are badly aimed when used to criticize classical concepts such as vested private rights, which more often than not protect minorities against majoritarian powers.

This article will address both Legal Realist and critical theories directly. It will demonstrate that classical legal concepts such as vested rights are determinate enough to do the job of securing equal rights, even if they elude perfect definition. And it will demonstrate that vested private rights are at least as likely to protect the interests of marginalized groups and individuals as the powerful. The process of meeting those influential criticisms will disclose to view how classical legal concepts, especially property concepts, work in legal reasoning to solve practical problems without necessarily smuggling in illicit power relations.

After this introductory Part I, this article proceeds in four additional sections. Part II discusses how property concepts work in legal reasoning concerning information resources. It explains the utility, and surveys the career, of normative concepts generally and legal concepts in particular. Normative concepts that impose duties and other conclusive reasons meet persistent human needs, not only to overcome the limitations of information costs but also to provide guidance to human beings as moral agents. We need to know what is good to do and we need to avoid infringing the rights of others. We must act toward others with respect for their equal moral agency. In short, we all have social and civic obligations. So, we need to know what others' rights are.

Part III answers two objections to the use of classical legal concepts in relation to intangible resources. The first objection is that classical property concepts smuggle in contestable normative assumptions. The second is that property concepts are insufficiently determinate. The first objection understates the neutrality of property concepts, and the second objection overstates their indeterminacy. In the course of answering those objections, the article raises to view the work that property concepts perform in shaping patent law, and intellectual property law generally.

Part IV illustrates the work that property concepts perform in legal reasoning about information resources with examples drawn from patent law. The examples are specifications of a particular property concept, the concept of vested private rights. By operating as normative stops that impose duties and legal disabilities [barriers] upon the powerful, especially powerful majorities, vested patents function in legal reasoning as an important security for equal rights, in addition to all of the other benefits that they provide to society generally. The idea of patents as both rights of equal citizenship and vested, natural rights played a role in the struggle for equal human rights during the first civil rights movement in the nineteenth century. We can draw lessons from that use of vested patents to secure legal justice. Part V briefly concludes.