Private Lawdrafting, Intellectual Property, and Public Laws
REGULATORY COMPETITION IN CONTRACT LAW AND DISPUTE RESOLUTION, Hart Publishing (2013), pp. 43-65
28 Pages Posted: 17 Jan 2012 Last revised: 6 Jul 2015
Date Written: March 4, 2013
Public lawmakers have inadequate and misaligned incentives to engage in legal innovation. Private lawmaking is offered as a potential solution to this problem. However, private lawmaking faces a dilemma: In order to be effective, the cost-reducing standard forms produced by private lawdrafters need to be publicly enacted. However, enactment as law eliminates the intellectual property rights that are essential to properly motivate the private lawdrafters to produce such forms. As a result, private lawdrafters will have inadequate and misaligned incentives to engage in legal innovation that would provide widespread benefits. Absent some mechanism to allow the private lawdrafter a way to appropriate the gains from his investment in cost reducing legal innovation, the promise of private lawmaking may be minimal.
Keywords: Barry Weingast, Charles Goetz, commercial-type market, Cunningham, David Snyder, Eric Talley, Gillian Hadfield, Henry Butler, interest groups, National Conference of Commissioners on Uniform State Laws, political costs, rent-seeking, Ronald Coase, sales, Scott, social welfare, socially valuable
JEL Classification: D23, K11, K20, K40, Q34
Suggested Citation: Suggested Citation