Values, Questions, and Methods in Intellectual Property

(Excerpt) Intellectual property (“IP”) scholarship has a unique distinction among legal academic disciplines: some of its practitioners question whether the subject of their study ought to exist. We should pause to consider how remarkable this is. Constitutional law scholars usually do not question whether political communities should be governed by constitutions. Criminal law scholars generally accept that the state ought to be able to define and punish crimes.

Contract law scholars do not question that some promises should be enforceable in court. To be sure, in each of these disciplines there are hotly debated questions over the appropriate scope and justification for particular legal rules, and that is true for IP as well. But perhaps the central theoretical question in IP debates—and particularly patent debates—is whether IP rights should exist at all, or whether we would be better served by some other system for regulating the creation and distribution of knowledge.