Post by Christopher Newman, George Mason University.
Thanks to Jorge for his thought-provoking post. It’s a thrill to have smart people find your work worth picking up and using for something. Here are a few responsive thoughts of my own.
Because the term “license” encompasses a variety of interests comprising differing sets of jural relations, I think it’s important to specify what exactly is at stake in any given context when we ask “does a CNS amount to a license”? As Jorge notes, the actual posture of Meso makes it a bad vehicle for this (nevertheless important and interesting) question, because the argument there really has nothing to do with identifying the substantive content of the property interest (if any) that accrues to the obligee of a CNS. Meso is trying to obtain standing to enforce use restrictions that are purely contractual; bizarrely, they are in the position of arguing the equivalence of contract and property not to draw implications that sound in property, but simply to make a round trip back into contract.