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Legal Pragmatism and Intellectual Property Law

INTELLECTUAL PROPERTY AND THE COMMON LAW, Shyam Balganesh, ed., Cambridge University Press, 2011

Minnesota Legal Studies Research Paper No. 11-22

19 Pages Posted: 24 May 2011  

Thomas F. Cotter

University of Minnesota Law School

Date Written: May 18, 2011

Abstract

The legal pragmatism movement that came to prominence in the 1990s adopted a skeptical attitude toward “foundationalism” – the idea that any one body of law can be adequately explained by some grand, foundational theory, or united by a single goal or value. The pragmatists’ embrace of anti-foundationalism, in turn, emphasizes the virtues of concepts such as value pluralism, practical reason, and what Cass Sunstein refers to as “incompletely theorized agreements” for reaching consensus on particulars when opinions differ at a higher level of abstraction. In this Essay, I argue that a legal pragmatist approach to intellectual property (IP) law has both strengths and weaknesses. Among its strengths are its recognition of the competing values that animate IP policy and doctrine; its understanding of the limits of both instrumental and natural rights theories in explaining and shaping the contours of IP rights; and its appreciation for the common law method of incrementally adapting doctrine to changing technological environments. At the same time, however, a legal pragmatism that naively embraces totality-of-the-circumstances tests may induce overcompliance on the part of IP users. An approach that overemphasizes the unquantifiable and the incommensurable may inhibit the use of economic analysis as a tool (albeit an imperfect one) for precisely stating one’s assumptions, predicting consequences, and testing results; and, more generally, may blunt the critical edge necessary to counter the ever-expanding scope of some IP rights. Policymakers, in short, should avoid the temptation to turn legal pragmatism’s anti-foundationalist stance itself into a foundational principle of IP policy.

Keywords: Intellectual Property, Pragmatism, Legal Pragmatism

Suggested Citation

Cotter, Thomas F., Legal Pragmatism and Intellectual Property Law (May 18, 2011). INTELLECTUAL PROPERTY AND THE COMMON LAW, Shyam Balganesh, ed., Cambridge University Press, 2011; Minnesota Legal Studies Research Paper No. 11-22. Available at SSRN: https://ssrn.com/abstract=1845915 or http://dx.doi.org/10.2139/ssrn.1845915

Thomas F. Cotter (Contact Author)

University of Minnesota Law School ( email )

229 19th Avenue South
Minneapolis, MN 55455
United States
612-624-7527 (Phone)

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