Legal Pragmatism and Intellectual Property Law

Abstract

The legal pragmatism movement that came to prominence in the 1990s adopted a skeptical attitude toward “foundationalism” – the idea that any one body of law can be adequately explained by some grand, foundational theory, or united by a single goal or value. The pragmatists' embrace of anti-foundationalism, in turn, emphasizes the virtues of concepts such as value pluralism, practical reason, and what Cass Sunstein refers to as “incompletely theorized agreements” for reaching consensus on particulars when opinions differ at a higher level of abstraction. This article argues that a legal pragmatist approach to intellectual property (IP) law has both strengths and weaknesses. Among its strengths are its recognition of the competing values that animate IP policy and doctrine; its understanding of the limits of both instrumental and natural rights theories in explaining and shaping the contours of IP rights; and its appreciation for the common law method of incrementally adapting doctrine to changing technological environments. At the same time, however, a legal pragmatism that naively embraces totality-of-the-circumstances tests may induce overcompliance on the part of IP users. An approach that overemphasizes the unquantifiable and the incommensurable may inhibit the use of economic analysis as a tool (albeit an imperfect one) for precisely stating one's assumptions, predicting consequences, and testing results; and, more generally, may blunt the critical edge necessary to counter the ever-expanding scope of some IP rights. Policymakers, in short, should avoid the temptation to turn legal pragmatism's anti-foundationalist stance itself into a foundational principle of IP policy. The article concludes with a brief example of the author's pragmatic law-and-economics methodology as applied to an issue of great contemporary relevance, namely whether courts should award injunctions for the unauthorized use of standard-essential patents.