Brandeis's IP Federalism: Thoughts on <i>Erie</i> at Eighty

Justice Brandeis is, in intellectual property law’s precincts, most famous for his lone dissent in International News Service v. Associate Press, the misappropriation case one can find in virtually every I.P. survey casebook (and many property law casebooks as well). But in the wider legal world, Brandeis is likely most famous for his earthquake opinion in Erie Railroad Co. v. Tompkins. Do Brandeis’s opinions in these two cases speak to each other? Can considering them together inform broader reflections on the texture of our federalism in the I.P. context?

This piece, prepared in connection with the “Erie at Eighty” conference in fall 2018, makes the case that the answer to both questions is “yes.”