Robert Merges, ‘Foundations and Principles Redux: A Reply to Professor Blankfein-Tabachnick’

This is a response to the commentary by Professor David H. Blankfein-Tabachnick (“B-T”) on my book, Justifying Intellectual Property (JIP) (2011). In JIP, I describe IP law at three levels: foundations, midlevel principles, and specific doctrines and institutions. At the bottom are foundational justifications for the field, ultimate rationales for why a society would have an IP system. In JIP, I explain why utilitarianism-the traditional standard-bearer in the IP field-has failed as a viable foundation. I argue instead for a more deontological foundation, built on the insights of Locke, Kant, and Rawls. At the same time, I recognize that a good number of my colleagues do not share my doubts about utilitarianism, and that they continue to recognize it as the ultimate basis of IP law. I also acknowledge that various scholars have argued persuasively for alternative foundations based for example on traditional religious precepts. Given this level of disagreement, I turn in JIP to what I call “midlevel principles.” These are common themes and tropes that pervade case law and policy discussion in the IP field … (more)

Robert P. Merges, ‘Foundations and Principles Redux: A Reply to Professor Blankfein-Tabachnick’. California Law Review, October 2013, Vol 101, No 5.

First posted 2013-11-11 07:30:55

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