Post by Henry Smith
As a follow up to Patrick Goold’s post on the IP, Private Law, and the Supreme Court Conference, let me raise a couple of questions inspired by the first panel. Much of the discussion focused on how treating intellectual property as a kind of property does not mean assuming it is absolute or that all of IP is equally “property-like.” And yet what does it mean to think about a topic in terms of property?
In private law, a distinction is often drawn between two broad families of approaches. On the one hand are external, often functional, theories that explain and justify private law in terms of something else, whether economics, psychology, or philosophy. On the other side and less common in American law schools are internal or interpretivist theories that adopt the perspective of one inside the legal system and seek to make sense of that system from within – to render it coherent.
How does this distinction map onto approaches to IP? In this country, scholars overwhelmingly adopt consequentialist and even utilitarian frameworks for analyzing patent law, not least because the U.S. Constitution grants to Congress the power “[t]o promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries.” Thus, when IP scholars in the U.S. suggest that we can understand a body of law such as patent law partly in terms of property, it may be that they are not only inviting us to use property law doctrines and mechanisms to make sense of IP law, but also to import a consequentialist approach to property reflective of the approach that they generally favor. Any version of an internal perspective that might hope to gain traction in patent circles would anyway have to be fairly consequentialist in a way familiar to functionalists. (Copyright is a somewhat different story, with a strand of internal-interpretive thinking; see the work of Abraham Drassinower, as well as that of Shyam Balganesh and Patrick Goold, not to mention European copyright.) In short, the internal-external divide in private law theory seems not to carry over fully into intellectual property. I wonder if that helps explain how “property thinking” seems to run out precisely when we get to fundamental questions like patentable subject matter.