Resolving Conflicts among Congress's Powers Regarding Statutes' Constitutionality : The Case of Anti-Bootlegging Statutes

Can Congress pass under one of its powers a statute that conflicts with the language of another Congressional power? This unsettled question has bothered intellectual property scholars in recent years. This Essay examines it by focusing on the 1994 anti-bootlegging statutes that conflict with limitations in the IP Clause but which may be authorized by the Commerce Clause. To date, four courts reviewed challenges to these statutes and reached different conclusions. The Essay offers three contributions to resolving inter-clause conflicts regarding statutes' constitutionality generally and to the analysis of the anti-bootlegging statutes in particular. First, it informs the inquiry by introducing highly relevant, yet largely overlooked, Supreme Court precedents on inter-clause conflicts. Second, it suggests that a complete resolution of conflicts with the IP Clause requires one to consider potential violations of all the relevant limitations in it. The Essay thus examines the extent to which the anti-bootlegging statutes conflict with five limitations in the IP Clause: writings, limited times, authors, "promote the progress of science and useful arts" and originality. It suggests that examining the "promote the progress" limitation is key to determining the anti-bootlegging statutes' constitutionality. Lastly, the Essay reviews five general approaches to resolving inter-clause conflicts: formalism, fundamental inconsistency, structural inference, fundamental principles, and particularism. It suggests that the anti-bootlegging statutes may conflict unnecessarily with the IP Clause because they protect performers to a greater extent than the one required to comply with U.S. obligations under TRIPS