Examples of Harkness discussion questions

For each class, students should develop discussion questions. Below is a information form a handout given in the first week.


Function. What function did today’s readings provide?

Doctrine/Law. What legal issues did the readings cover? What is the law?  Where law is unsettled, how is it unsettled?

Theories justifying IP. What theories for/against IP were implicit in today’s readings?

Hypos & hot issues.  Come up with hypos for discussion.  Alternatively, bring relevant new IP issues from the news, using sites such as techdirt.com, wired.com, NY Times Bits Blog, arstechnica.com, boingboing.net, The Daily Dot, and elsewhere.


Locke. What is his thesis?  What are the shortcomings of his thesis?  Does he overcome them?  Are you convinced?

Externalities & spillovers.  Can you think of examples from the real world?  From IP?

Public domain & “commons.”  What is the difference between them?  Are they important?  Why?  Does Boyle define these terms positively (i.e., what they are) or negatively (i.e., what they aren’t)?

Information as a commodity.  Besides IP, in what ways does society regulate information?  Commodify it?  Are these the same things?  Is the state’s regulation on the ability to “speak” law – requiring a JD, bar passage, and licensure – a form of information regulation?

Barlow.  What descriptive & normative claims does he make?  Do you agree or disagree?  What predictions does he make?  What did he get right or wrong?

Jefferson Warning/Diderot-Condorcet.  Would the Jefferson Warning help IP decision-makers?  What would the world be like if the Diderotian view of IP prevailed in the US?

INS v. AP. 

  • Why isn’t this a copyright case?
  • Why can Professor Boyle reprint the 1918 article from the NYTimes in his casebook? Is it fair use, commons, or public domain?
  • Use the chart to determine how each Justice views the case in terms of labor, utilitarianism, and spillovers.