In 1858, the United States Attorney General issued an opinion, Invention of a Slave, declaring inventions by African Americans, enslaved and free, unpatentable. Within a few years, legal changes that ...abolished the law of slavery rendered the opinion obsolete, and it became forgotten, dropped from legal memory. Combining history and Critical Race Theory, this Essay repositions the opinion as a remembered legal story and argues that law’s selective memory has carried a cost. I excavate the generations of African American activists who researched and wrote about the opinion and its backstory of an enslaved blacksmith who invented an innovative plow. Setting their storytelling in the context of post-Emancipation advocacy for the “rights of belonging,” I demonstrate the political stakes of their efforts in the relationship among inventive ability, patents, and citizenship. I reflect on my first encounters with Invention of a Slave as an obscure part of the antebellum past and on the new perspective gained from this history of remembering. I argue that these stakes persist, making this story part of the living present of race and law. I use this personal storytelling to consider the costs of legal forgetting and the possibilities of mitigation both in this case study, with implications for the patent system and our ongoing national conversation about paths to citizenship, and in the broader projects of curating law’s memory and fulfilling law’s formal promises of racial equality.
The United States Patent Office of the 1850s offers a rare opportunity to analyze the early gendering of science. In its crowded rooms, would-be scientists shared a workplace with women earning equal ...pay for equal work. Scientific men worked as patent examiners, claiming this new occupation as scientific in opposition to those seeking to separate science and technology. At the same time, in an unprecedented and ultimately unsuccessful experiment, female clerks were hired to work alongside male clerks. This article examines the controversies surrounding these workers through the lens of manners and deportment. In the unique context of a workplace combining scientific men and working ladies, office behavior revealed the deep assumption that the emerging American scientist was male and middle class.
First World scientists traveled from the Arctic to the Amazon seeking blood to serve as a baseline against which to measure the ravages of technoscience in “civilized” Atomic Age bodies. ...when ...Radin calls a freezer full of frozen blood a “secular reliquary,” citing the entirety of a book on medieval meanings of blood (p. 20), one gets the tantalizing impression that there are historical or theoretical connections obscure to those who have not already read the reference or who are willing to do considerable reading to find them. For those willing to meet these challenges, the book is rewarding reading for those interested in the history of human genetics, anthropology, and biobanking, and offers a welcome chance to connect those histories with the heavily cited science and technology studies literature.
This article analyzes the comparative history of the law and practice of abortion and assisted reproduction in the United States to consider the interplay between medical paternalism and legal ...paternalism. It supplements existing critiques of paternalism as harmful to women's equality with the medical perspective, as revealed through the writings of Alan F. Guttmacher, to consider when legal regulation might be warranted.
Each year Americans supply blood, sperm, and breast milk to "banks" that store these products for use by strangers in medical procedures. Who gives, who receives, who profits? Kara Swanson traces ...body banks from the first experiments that discovered therapeutic uses for body products to current websites that facilitate a thriving global exchange.
From the early republic to the present, the social networks created by successful American inventors to support their technologies have included individuals who have helped inventors mobilize the ...legal system. The role of the patent practitioner in this joint history of law and technology has remained largely hidden behind the myth of the lone inventor and the drama of courtroom patent battles. This paper traces patent solicitation as a profession from the beginning of the modern patent examination system in 1836 through a mid-twentieth-century Supreme Court battle over the requisite expertise for what had become an indispensable aspect of invention. Shaped by the changing patent law and patent office practices, the history of this profession also reveals the linked history of lawyers and engineers, as both groups sought to lay claim to this new occupation, and the process by which this occupation, like patents themselves, became a legal-technical hybrid.
There is a robust scholarly discussion about whether and how the U.S. patent system fulfills its constitutional directive to promote the progress of the useful arts. There is also increasingly a ...discussion that investigates extraconstitutional roles for the patent system, from signaling and credentialing to self-expression and bolstering nationalism. This Article expands our pluralistic vision of the patent system by exploring the ways in which the patent system has served to foster and identify what I call "useful citizens," who possess the ability to perform civic duties. As legislators and bureaucrats experimented with patent laws and practices in a struggling postcolonial country, they came to define the inventor-patentee in unique ways. A patent certified the originality and independent thought of the inventor, abilities defined as crucial for participation in democratic self-governance. I argue that this unacknowledged sociopolitical role for patents explains in part the persistence of the U.S. patent system in the face of the long-running critique of its efficacy in promoting innovation and economic growth. Further, I argue that the ideology of inventor as useful citizen reveals the role of patents and invention in the historic restriction of full citizenship rights in the United States to white men and the continuing stakes of patent system participation as patents continue to be linked in the public imagination to American national identity. To make this argument, this Article develops a comparative legal history among the early United States, the Republic of Texas (1836–1846), and the Confederate States of America (1861–1865), contrasting the U.S. patent system to the patent systems in each of these imitative democracies founded by former U.S. citizens. I analyze how these countries, engaged in desperate battles for survival, devoted scarce resources to establishing a patent office, briefly tracing the constitutional, legislative, and bureaucratic history of the Texas and Confederate patent systems. In each case, politicians looked to the U.S. patent system as a model even as other patent systems, such as those of Great Britain and Mexico, offered alternatives seemingly advantageous to these cash-strapped and under-industrialized nations. I argue that the form these new patent systems took demonstrated that the white men who created them believed in the inventor as useful citizen. Further, the political context of these start-up republics explains their decision to implement patent systems that credentialed inventors as well as incentivized invention. Returning to U.S. history, I demonstrate how using patents to identify useful citizens was linked to race and gender restriction of civil rights. In conclusion, I consider how the continued link of patents and citizenship offers possibilities for both the inclusive and exclusive mobilization of patents as group credentials.
My dissertation traces the invention and development of a new form of banking, body banking. Today, the body bank as an institution that collects, stores, processes, and distributes a human body ...product is a taken-for-granted aspect of medicine in the United States. We donate to blood banks, we cherish sperm bank babies, and we contemplate many sorts of banks, including cord blood banks, gene banks, and egg banks. Such institutions have existed for the past century in the metaphorical shadow of financial banks, and like those better-studied banks have stirred considerable controversy. The driving question behind my dissertation is simply, why banks? How did we come to use “bank” to apply to bodies as well as to dollars? More intriguingly, what does this analogy show us and what is it hiding?
My dissertation traces the invention and development of a new form of banking, body banking. Today, the body bank as an institution that collects, stores, processes, and distributes a human body ...product is a taken-for-granted aspect of medicine in the United States. We donate to blood banks, we cherish sperm bank babies, and we contemplate many sorts of banks, including cord blood banks, gene banks, and egg banks. Such institutions have existed for the past century in the metaphorical shadow of financial banks, and like those better-studied banks have stirred considerable controversy. The driving question behind my dissertation is simply, why banks? How did we come to use “bank” to apply to bodies as well as to dollars? More intriguingly, what does this analogy show us and what is it hiding?
