Private Lawdrafting, Intellectual Property, and Public Laws

REGULATORY COMPETITION IN CONTRACT LAW AND DISPUTE RESOLUTION, Hart Publishing (2013), pp. 43-65

George Mason Law & Economics Research Paper No. 13-20

28 Pages Posted: 17 Jan 2012 Last revised: 6 Jul 2015

Bruce H. Kobayashi

George Mason University - School of Law

Larry E. Ribstein

University of Illinois College of Law (deceased); PERC - Property and Environment Research Center

Date Written: March 4, 2013

Abstract

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

Kobayashi, Bruce H. and Ribstein, Larry E., Private Lawdrafting, Intellectual Property, and Public Laws (March 4, 2013). REGULATORY COMPETITION IN CONTRACT LAW AND DISPUTE RESOLUTION, Hart Publishing (2013), pp. 43-65; George Mason Law & Economics Research Paper No. 13-20. Available at SSRN: https://ssrn.com/abstract=1986455 or http://dx.doi.org/10.2139/ssrn.1986455

Bruce H. Kobayashi (Contact Author)

George Mason University - School of Law ( email )

3301 Fairfax Drive
Arlington, VA 22201
United States
703-993-8034 (Phone)
703-993-8088 (Fax)

HOME PAGE: http://mason.gmu.edu/~bkobayas

Larry Edward Ribstein

University of Illinois College of Law (deceased)

PERC - Property and Environment Research Center

2048 Analysis Drive
Suite A
Bozeman, MT 59718
United States

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