Intellectual Property Doctrine and Midlevel Principles/Foundations and Principles Redux: A Reply to Professor Blankfein-Tabachnick

Recent scholarship on intellectual property (IP) law argues that doctrinal and theoretical sophistication in IP requires an understanding of "midlevel" principles, purportedly constitutive of IP's positive law. Proponents of this line of scholarship claim these principles serve as a b...

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Bibliographic Details
Published in:California law review 2013-10, Vol.101 (5), p.1315
Main Authors: Blankfein-Tabachnick, David H, Merges, Robert P
Format: Article
Language:English
Subjects:
Intellectual property
Liberalism
Principles
Scholarships & fellowships
Supreme Court decisions
Online Access:Get full text
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Summary:Recent scholarship on intellectual property (IP) law argues that doctrinal and theoretical sophistication in IP requires an understanding of "midlevel" principles, purportedly constitutive of IP's positive law. Proponents of this line of scholarship claim these principles serve as a bridge, connecting IP doctrine and practice with deeper foundational philosophical principles. They assert that such midlevel principles -- the principles of proportionality, non-removal, dignity, and efficiency, for instance -- explain, predict, and justify IP cases. According to this scholarship, IP doctrine, case outcomes, and statutes are suffused with midlevel principles. In turn, the scholarship treats midlevel principles as consistent with broadly conflicting foundational accounts of property entitlement, from Lockean liberalism on the economic right, to Rawlsian egalitarianism on the left. The result is an account of IP law that unifies practice and the positive law with facially conflicting accounts of foundational property theories. This Essay argues that such claims to IP unification -- however revolutionary -- are untenable.
ISSN:0008-1221
1942-6542