An Introduction to the Economic Analysis of Law as a Legal Theory in Improving Legal Argumentation and Judicial Decision-making for IP Law in Europe

Abstract

The traditional forced consensus approach of judicial decision-making in Europe has so far precluded considerations of economic policy in the application and development of IP and patent law. The comparative paradigm of the economic analysis of law that is widely practiced in the US shows that this legal theory has upgraded legal argumentation and judicial reasoning in various degrees of sophistication, helping the courts to contemplate the economic-social effects of their choices in advance. A gradual development of the economic analysis of law in Europe will reasonably improve legal reasoning, especially, in the substantive economic law subjects of IP and patents that will provide also necessary democratic safeguards in the operation of the existing, international and supranational decision-making systems that dominate these legal areas in the continent.

Keywords: CJEU, EPO, Intellectual Property, Judicial Reasoning, Patents, Posner

JEL Classification: K29, K10, K19, D43, D42, D78