Private Law Theory

ABSTRACT
Originally developed by the legal theorist Lon Fuller, eunomics is the ‘study of good order and workable arrangements’ and is directed at understanding the structure, form or ordering adopted by an area of law. Yet unlike the ordinary analysis of institutional design, eunomics views the form adopted by an area of law as neither pre-ordained nor wholly contingent. Instead, eunomics sees the form as playing an important role in clarifying and developing the goals of the area through a means-ends interaction. This Article develops the central insights of Fuller’s eunomics project for intellectual property. Most theoretical accounts of intellectual property have hitherto paid surprisingly little attention to the unique structure and form that each area of intellectual property embodies, and have focused instead on justifying or explaining the area’s core substantive goals and values in the abstract. In so doing, they have neglected the crucial import that the individual form of ordering adopted by each area has on the construction and realization of those values. The Article develops a eunomics-driven typology of intellectual property forms: the appropriation form, the grant form, the use/registration form, and reveals how each of these forms embodies its own normative structure, value commitments, and conception of institutional authority for lawmaking. In so doing, it shows how theorizing about intellectual property and its values remains grossly incomplete without a greater engagement with each individual area’s underlying structure.

Balganesh, Shyamkrishna, The Eunomics of Intellectual Property (February 21, 2025), Yale Law Journal, volume 135, forthcoming 2025.