Property's Uneasy Path and Expanding Future

Abstract

How has law come to its present state and where is it going? These are two obvious questions to ask on the occasion of a great Law School's Centennial. In this Essay, I direct these questions at property rights, a centerpiece of the law and economics revolution that has itself been an important part of this last century of ideas. The law and economics literature has advanced the optimistic view that property rights have evolved in a way that promotes economic efficiency.1 I suggest that alongside the conventional and optimistic view, which is essentially transaction cost, or efficiency, based, there is an alternative and skeptical view that is interest group, or politically, driven. And if it is true that the evolution of property rights up to the present time is capable of conflicting explanations, then there is the question of predicting the future of property rights and, as we will see, the future of intellectual property in particular. Part I begins by exploring two distinct stories about the evolution of property rights. Part II then applies the two evolutionary stories to assess the future of intellectual property rights. I suggest that we should expect interest group pressures to generate an expansion of intellectual property rights, perhaps even to include protection for abstract ideas. These expanding rights will shape much of our legal system in the coming years. The conclusion adds some hopeful comments about the limits of interest group politics.