Jessica Silbey, ‘Heuristic Interventions in the Study of Intellectual Property’

In this Essay, I review and elaborate on Dan’s Burk’s On the Sociology of Patenting with three ‘heuristic interventions’ for the study of intellectual property law. These interventions derive from sociology and anthropology, and to some extent also from critical literary theory. Unoriginal in the social sciences, these heuristic interventions remain largely original to the study of law within law schools and traditional legal scholarship (as opposed to the study of law from within the social sciences and humanities). Burk joins a small but growing group of legal scholars, reaching beyond legal doctrinal analysis and the economic analysis of law to explain intellectual property law as a social practice. The interventions he begins and this essay explains in further depth reframe the understanding or analysis of intellectual property (1) from individuals to institutions, (2) from causation to explanation and (3) in the context of the domestication of IP in contemporary social and political culture. In this way, Burk’s Article and this essay demonstrate how law (not only intellectual property or patent law) is a social practice both reflecting and forming social structures, the understanding of which requires attention to organization and culture as much or more than statutes, cases, administrative filings, and economic theory.

Jessica Silbey, Heuristic Interventions in the Study of Intellectual Property, Minnesota Law Review Headnotes, volume 101, 333-348 (2017).

First posted 2017-07-17 06:33:24

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