Decentralizing the Lawmaking Function: Private Lawmaking Markets and Intellectual Property Rights in Law

Abstract

In a series of articles and a book published shortly before his untimely death, Professor Larry Ribstein argued for decentralizing the lawmaking function, enabling private parties to make law, and harnessing the market as a force for legal innovation. As part of this project, Professor Ribstein, along with Professor Bruce Kobayashi, called for broader intellectual property (IP) rights in legal creations. Their argument relies on the conventional quasi-public goods rationale for IP rights. Innovators have suboptimal incentives to create new law in the absence of property rights because competitors can free ride on their creations. As a result, without IP rights, privately-made law would be created, as it is today, mostly as a byproduct of other activities such as litigation or political rent-seeking. And byproduct lawmaking is likely to produce suboptimal law. Broader IP rights solve the free rider problem and thus make possible a vigorous private lawmaking market.

This Article, which was written for a conference celebrating Professor Ribstein’s scholarship, examines the case for granting broader IP rights in law as a way to incentivize legal innovation in a private lawmaking market. The discussion begins by briefly examining some of the benefits and costs of harnessing the private market to produce better law. With this background in place, it then turns to the case for IP rights in law. The Article first surveys the limited scope of protection under current IP law and then discusses the benefits and costs of expanding IP rights. It closes by focusing on some special problems with granting property rights in aspects of common law adjudication, such as litigation documents and judicial decisions.

In the end, the goal is to inject a note of caution. Private lawmaking is more attractive for some types of legal innovation and less attractive for others, and it is not clear that broader IP rights are necessary or desirable to spur legal innovation in a private market. It might be best to proceed incrementally, by first removing the professional barriers to competition and then expanding IP rights only if experience with the new market supports the need for additional protection.

Keywords: private lawmaking, intellectual property, intellectual property rights in law, Larry Ribstein, Bruce Kobayashi, Gillian Hadfield, lawmaking market, social welfare

JEL Classification: D23, K11, K20, K22, K29, K40, Q34