Private Law Theory

ABSTRACT
This Article addresses the distributive structure of intellectual property and innovation policy and the foundational role it must play in a distributive account of the private law. The Article diagnoses and remedies a systematic omission in the literature surrounding intellectual property; namely, the underappreciated role that optimal tax rates and optimal legal rule construction play in the context of a distributive account of intellectual property and innovation policy. The Article addresses intellectual property from within its internal doctrinal boundaries, ie, the conflict surrounding the copyright/patent distinction, and then from outside its traditional parameters, in its relationship to other entitlement governing, non-intellectual property legal rules, eg, bankruptcy and taxation. The Article holds that external normative principles can be helpful in bringing order to seemingly intractable internal doctrinal conflict in and around intellectual property law, but, where external principles are maximizing, traditional boundaries internal to intellectual property are untenable. In the face of maximizing distributive principles, intellectual property rules cannot be disambiguated from non-intellectual property, entitlement-oriented legal rules, eg, those traditionally thought to constitute taxation, budget expenditure, or bankruptcy. Any purported distinction between intellectual property rules and so-called ‘background rules’ is purely illusory. The Article shows that egalitarian distributive principles, aimed at maximizing the position of the least well-off, operate in an analogous fashion to wealth- or welfare-maximizing theories. But importantly, such theories, properly understood, construct a unique set of optimal entitlement-oriented rules – inclusive of intellectual property and innovation policy – conjoined with uniquely optimal tax rates. The Article maintains that this crucial relationship has gone underappreciated; this Article aims to remedy the omission.

Blankfein-Tabachnick, David, Maximizing Intellectual Property: Optimality, Synchronicity, and Distributive Justice (July 1, 2018), St John’s Law Review, volume 94, no 1, 2020.

First posted 2021-02-22 06:27:41