ABSTRACT
American copyright law is in bad shape. For decades, scholars and advocates have argued that copyright law is outdated at best and harmful at worst – overbroad, incoherent, and doggedly indeterminate. The policy prescriptions that follow from this diagnosis seem obvious. To build a better system, the story goes, we must refine, modify, or reform copyright doctrine. The prevailing paradigm thus rests on a common assumption: legal doctrine is crucially important.
This Article argues that the conventional narrative is critically misdirected. It shows that copyright doctrine, long a staple of bitter policy debates, has been increasingly marginalized by an alternative force: intuition. Courts often appeal to raw intuition—crudely defined as a kind of impulsive, spontaneous insight – to undercut or altogether displace existing copyright standards. In reality, copyright doctrine is far less important, and decidedly more elastic, than scholars have recognized. Intuition looms over nearly every domain of copyright law, from substantive scope and remedial relief to infringement standards and even basic policy goals. The result is a vacuous and devilishly fragile body of law.
Drawing on social psychology, cognitive science, and legal history, this Article analyzes the demise of copyright doctrine and the corresponding rise of what comes next: intuition. The Article first develops a taxonomy of intuitive heuristics. It then brings together theory, history, and neuroscience to explain why free-floating intuitions are particularly pronounced in copyright law, a field focused on art and aesthetics. The Article next offers a detailed account of how, where, and why intuition shapes copyright jurisprudence. In the end, I argue that discrete, refined appeals to intuition may be desirable in some contexts but not in others. By grappling with intuition’s enduring dominance, this Article seeks to advance a new analytical paradigm – one that illuminates our past and readies us for the future.
Shisha, Shani, Copyright as Intuition (June 1, 2025), Minnesota Law Review, volume 111, 2027 (forthcoming).
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