11 - Instruments of Legal Power in the American Republic

Summary

In this chapter, we return to the American context in order to see how intellectual property develops from within a nationalizing state during the nineteenth century. We see the extent to which America's national legal foundations were, ironically, international and Roman. In writers of early U.S. legal treatises, we see an overt embrace of Roman law as a foundation for the commercial law of the new nation. We see the implications of this in the will theory of contracts and in franchising arrangements that lay the foundations for a telecommunications network, at first for telegraphs and later for telephones. Contracts become a new instrument of legal power, one that facilitates intentional strategy in the consolidation and deployment of unprecedented levels of social power, rooted in the zones of exclusivity enabled by intellectual property. In the Bell Telephone System, we see this consolidated social power at its apex. In the regulatory reactions to this level of social power, we see early foundations for the American administrative state.