Recent ​Faculty Scholarship

​Committed to the pursuit of academic excellence, the University of San Diego School of Law's faculty is recognized nationally for their scholarly impact.

USD's community of scholars author leading casebooks and treatises, scholarly monographs published by the finest university presses and influential articles in the nation's leading law reviews. Faculty members come from diverse personal, professional and academic backgrounds and include numerous former judicial clerks, practitioners from the private and public sectors as well as both sitting and former judges.

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McGowan, David


  • Developing Judgment About Practicing Law, no. 2nd (West Academic Publishing, 2013)

Chapters of Books or Articles within Books

  • Copyright and Convergence: A Pragmatic Perspective” in Intellectual Property Protection of Fact Based Works: Copyright and its Alternatives p.233 (Brauneis, ed.) (Edward Elgar Publishing, 2009)
  • “Some Copyright Consumer Conundrums” in Consumer Protection in the Age of the Information Economy (Winn, ed.) (Ashgate Publishing, 2006)
  • “Vaporware, The Internet, and Consumer Behavior” in The Commodification of Information (Elkin-Koren, and Netanel, eds.) (Kluwer Academic Press, 2002)
  • “The Problems With the Third Way; A Java Case Study” in Regulating The Global Information Society (Marsden, ed.) (Routledge, 2000)

Journal Articles

  • “The Unfallen Sky” in 51 Houston Law Review 337 (2013)
  • “Lawspeech” in 2012 Journal of the Professional Lawyer 1 (2012)
  • Big But Brittle: Economic Perspectives of the Law Firm in the New Economy” in 2011 Columbia Business Journal 1 (with Burk) (2011)
  • “The Tory Anarchism of F/OSS Licensing” in 78 Chicago Law Review 207 (2011)
  • “Inequitable Conduct” in 43 Loyola Law Review 945 (2010)
  • “Innovation and Liability for Contributory Copyright Infringement” in 8 Northwestern Journal of Technology and Intellectual Property 38 (2009)
  • “The Perils of the Partial Spectator” in 35 Queens Law Journal 165 (2009)
  • Politics, Office Politics, and Legal Ethics” in 20 Georgetown Journal of Legal Ethics 1057 (2007)
  • “There Is Nothing Pragmatic About Originalism” in 102 Northwestern University Law Review 86 (2007)
  • “What Tool Works Tells Us About Tailoring Patent Misuse Remedies” in 101 Northwestern University Law Review 208 (2007)
  • (So) What If It's All Just Rhetoric?” in 21 Constitutional Commentary 861 (2006)
  • Approximately Speech” in 89 Minnesota Law Review 1416 (2005)
  • “Between Logic and Experience: Error Costs and United States v. Microsoft Corp” in 20 Berkeley Technology Law Journal 1185 (2005)
  • Some Realism About Parochialism: The Economic Analysis of Legal Ethics” in 8 Legal Ethics 117 (2005)
  • Some Realism about the Free Speech Critique of Copyright” in 74 Fordham Law Review 101 (2005)
  • The Trespass Trouble and the Metaphor Muddle” in 1 George Mason Journal of Law and Economic Policy 109 (2005)
  • “But Cf, In Re Hundred Acre Wood” in 20 Constitutional Commentary 437 (2004)
  • “But Cf, The Last Man Off Standard” in 20 Constitutional Commentary 1 (2004)
  • Copyright Nonconsequentialism” in 69 Missouri Law Review 1 (2004)
  • “Telling Stories for Liberty” in 20 Constitutional Commentary 651 (2004)
  • Why Not Try the Carrot? A Modest Proposal to Grant Immunity to Lawyers Who Disclose Client Financial Misconduct” in 92 California Law Review 1825 (2004)
  • “Why The First Amendment Cannot Dictate Copyright Policy” in 65 University of Pittsburgh Law Review 281 (2004)
  • “From Social Friction to Social Meaning: What Expressive Uses of Code Tell Us About Free Speech” in 64 Ohio State Law Journal 1515 (2003)
  • “Has Java Changed Anything? The Sound and Fury of Innovation Litigation” in 87 Minnesota Law Review 2039 (2003)
  • “Website Access: The Case for Consent” in 35 Loyola University Chicago Law Journal 341 (2003)
  • “Recognizing Usages of Trade: A Case Study from Electronic Commerce” in 8 Washington University Journal of Law and Policy 167 (2002)
  • “Innovation, Uncertainty, and Stability in Antitrust Law” in 16 Berkeley Technology Law Journal 729 (2001)
  • “Judicial Writing and the Ethics of the Judicial Office” in 14 Georgetown Journal of Legal Ethics 509 (2001)
  • Legal Implications of Open-Source Software” in 2001 University of Illinois Law Review 241 (2001)
  • “Making Sense of Dale” in 18 Constitutional Commentary 121 (2001)
  • “Ethos in Law and History: Alexander Hamilton, The Federalist, and the Supreme Court” in 85 Minnesota Law Review 755 (2000)
  • “A Microsoft Dialog” in 44 Antitrust Bulletin 619 (with Gifford) (1999)
  • “But Cf., In re J.S.” in 16 Constitutional Commentary 477 (1999)
  • “Networks and Intention in Antitrust and Intellectual Property” in 24 Journal of Corporation Law 485 (1999)
  • Could Java Change Everything? The Competitive Propriety of a Proprietary Standard” in 43 Antitrust Bulletin 715 (1998)
  • “Free Contracting, Fair Competition, and Draft Article 2B: Some Reflections on Federal Competition Policy, Information Transactions, and Aggressive Neutrality ” in 13 Berkeley Technology Law Journal 1173 (1998)
  • Legal Implications of Network Economic Effects” in 86 California Law Review 479 (1998)
  • “Regulating Competition in the Information Age: Computer Software as an Essential Facility Under the Sherman Act” in 18 Hastings Community and Entertainment Law Journal 771 (1996)
  • Antitrust Immunity: State Action and Federalism, Petitioning and the First Amendment” in 17 Harvard Journal of Law and Public Policy 293 (with Lemley) (1994)
  • “A Libertarian Critique of University Restrictions of Offensive Speech” in 79 California Law Review 825 (with Tangri) (1991)
  • “A Critical Analysis of Commercial Speech” in 78 California Law Review 359 (1990)

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