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In this Essay, I attempt to disaggregate the Second Circuit’s decision in Barclays Capital to show that while the court may have reached the right conclusion in the end (a position I have argued for previously), its reasoning to reach that conclusion is rather confusing, while at the same time a rich source of information about the future of hot news doctrine. At every stage of its analysis, the Second Circuit went to significant lengths to cabin the reach of the doctrine quite considerably, despite reiterating that it was not abrogating it altogether. In analyzing the opinion, I thus consider the possibility that the court may have been signaling the gradual demise of the doctrine, which as a creature of the common law must go through a fuller process of desuetude before being officially “overruled.” Part I sets out the sources of confusion, doubt, and disagreement that characterize the court’s two opinions in Barclays Capital. Part II then attempts to draw lessons from the Second Circuit’s opinion for the future of common law intellectual property and the use of the common law process in developing intellectual property rules.


Common Law | Intellectual Property Law | Law


This article originally appeared in 112 Colum. L. Rev. Sidebar 134 (2012). Reprinted by permission.