Journal Article

MAXIMIZING INTELLECTUAL PROPERTY: OPTIMALITY, SYNCHRONICITY, AND DISTRIBUTIVE JUSTICE

Blankfein-Tabachnick, David

2020

Overview

Distributive accounts of law are undergoing a renaissance; an unprecedented paradigm shift away from the wealth-maximizing approach to law and legal theory and toward a distributive view.2 In line with this shift, this Article breaks new ground in providing a needed framework for a distributive theory of intellectual property law and innovation policy and articulates an appealing, egalitarian alternative to wealth- or welfare-maximizing accounts of intellectual property and innovation policy. Intellectual property has traditionally been understood as the legal doctrine surrounding copyrights, patents, and trade secrets.5 But legal institutions well beyond these areas of law are crucial to setting optimal incentives surrounding innovation and the governance and control of knowledge goods; this broader range of legal institutions can be described as innovation policy. To take another example, in the context of accidents, tort law is ideally understood as justified by the backward-looking value of corrective justice,12 or as instantiating roughly optimal deterrence, so as to efficiently reduce, spread, and distribute accident costs.13 The ongoing debate over the structure of private law is no longer strictly confined to a dispute over wealth maximization on the one hand and autonomy or corrective justice on the other. [...]recent pathbreaking legal scholarship has come to forcefully reject this view, despite longstanding entrenchment.23 This scholarship has recast the role that legal rules play in achieving overarching ideals of equality and distributive justice.24 Leading legal scholars have explicitly endorsed a broad role for distributive values in the construction of non-tax and transfer legal rules, arguing, for example, that the regulatory rules of administrative agencies-in addition to the rules of taxation and transfer-may serve as the proper domain of distributive justice.25 More expansively still, this growing literature has endorsed a distributive role for the private law in bankruptcy,26 contract,27 property,28 tort,29 and trusts and estates.30 An important paradigm shift appears to be upon the legal academy.

• Publisher: St. John's Law Review Association
• Subject: Attorneys / Bankruptcy / Copyright / Distributive justice / Egalitarianism / Equality / Intellectual property / Law / Tax rates / Taxation