Internal and External Accounts of IP Law — Eric Claeys

Post by Eric Claeys, George Mason University, Antonin Scalia Law School

In a recent post on this blog, Henry Smith asked some important questions about methodological commitments in American scholarship about intellectual property.  Henry distinguished between (on one hand) “external” and (on the other hand) “internal or interpretivist” frameworks for studying law.  He then noted that, in American IP scholarship, “scholars overwhelmingly adopt consequentialist and even utilitarian frameworks” in relation to patent law and repeat those same tendencies in copyright (though not to the same degree as in patent).  Henry’s post invited readers to consider why IP scholarship is so much more externally-oriented than other fields of scholarship on private law.

I completely agree with Henry’s general impressions about normative frameworks  in IP.  I also agree with his suggestion that IP scholars should reflect more upon why and how external accounts came to predominate in IP scholarship.  In this and a few subsequent posts, I’d like to offer a few thoughts.  In later posts, I want to suggest a different demarcation than Henry’s demarcation between external and internal-interpretivist approaches.  But my concern on that point is fairly specialized, removed from the big questions Henry is raising.  Before running off with the proverbial ball to one corner of the field, I hope in this post to offer some thoughts about the state of play in the middle of the field.

If I had to recommend one recent work relevant to the questions Henry’s raising, I would recommend Rob Merges’s book Justifying Intellectual Property.  In that book, Merges argued for bringing philosophical approaches to IP – Locke, Kant, Rawls, capabilities theories, and many of the principles associated with corrective justice in private law scholarship. Like any “big book,” Justifying Intellectual Property has its strengths and weaknesses.  I gave my sense of both in relation to the book’s treatment of Lockean labor theory when I reviewed the book, and it was striking for me to see that David Blankfein-Tabachnick had similar reactions when he reviewed the book’s treatments of Rawlsian justifications for IP.

But whatever one thinks about its specific merits and limitations, Justifying Intellectual Property did more than any other recent work to stimulate interest in the approaches Henry calls “internal-interpretivist.”  Justifying Intellectual Property provoked a spirited critical essay by Mark Lemley, who argued that what Henry calls “internal-interpretive” approaches are “faith-based.”  Merges then responded in his own essay, which accuses Lemley of being the fundamentalist in their argument.  If one looks past the attention-grabbing titles of Lemley and Merges’s essays, those essays are provoking IP scholars to raise exactly the issues most germane to Henry’s question: whether so-called external approaches account for all of the features of IP worth studying; whether such accounts are philosophically defensible; and what advantages so-called “internal-interpretivist” and “external” approaches have in comparison with one another.  And one can see as much in commentaries responding to these pieces: by Amy Landers and commenters on Prawfsblawg, James Grimmelmann, Lisa Larrimore Ouillette, Jeremy Sheff, and George Mason University’s Center for the Protection of Intellectual Property (with which I’m affiliated).

Which goes to show that IP scholars open to what Henry is calling “internal-interpretivist” approaches owe Rob Merges a huge debt of gratitude.  In subsequent posts, though, I want to argue that “internal” and “interpretivist” refer to two different approaches … and make a plea for keeping them separate.