Connecticut Law Review Volume 45 – Issue 3

Does Intellectual Property Law Have Foundations? A Review of Robert Merges’s Justifying Intellectual Property

Robert Merges’s Justifying Intellectual Property is an ambitious work of unification in intellectual property law.  The book defends a broad and sweeping thesis addressing the positive law of intellectual property and its foundation.  Justifying Intellectual Property innovatively articulates a set of normative midlevel principles intended to justify, explain, and predict intellectual property case outcomes.  Further, these midlevel principles are alleged to be consistent with a wide range of seemingly conflicting and highly contentious foundational accounts of property ranging from Lockeanism to liberal egalitarian perspectives.  This Book Review maintains that Merges’s claims of unification, while potentially groundbreaking, are overbroad.  The Review raises skepticism with regard to the idea that the positive law of intellectual property is actually governed by normative midlevel principles and argues that the competing and controversial foundational property theories that Merges addresses are not equally compatible with the midlevel principles he articulates.  The upshot of the Review is that values other than the midlevel principles described by Merges may be at play in explaining, predicting, and justifying intellectual property law case outcomes.  The Review further concludes that proponents of differing views of the strength and structure of foundational property rights will, at the level of principle, also differ over competing accounts of intellectual property doctrine.

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