Review Essay: Robert Merges, Justifying Intellectual Property

Abstract

This paper offers and extended review and discussion of Robert Merges' "Justifying Intellectual Property." In the bulk of the review, I focus on what I take to be some of the book's most innovative contributions: his use of Locke, his use of Kant instead of Hegel, and his focus on mid-level principles. I conclude by offering a critique of two aspects of the argument that strike me as problematic. First, Merges endorses the presence of stronger IP rights than rights-holders will actually be able to use (due to enforcement costs). I suggest that this strategy is vulnerable to sudden reductions of enforcement costs enabled by technological advances. Second, Merges' reliance on markets over regulatory interventions runs up against two limitations. On the one hand, market actors are not always rational, and so markets may not always tend to just outcomes, even if in theory they should. On the other hand, the reliance on markets assumes the IP goods are fungible such that market substitution is possible. This may often be the case with many kinds of goods, but for important kinds of IP, this assumption seems unwarranted.

Keywords: intellectual property