Robert P. Merges,
Foundations and Principles Redux: A Reply to Professor Blankfein-Tabachnick,
101 Calif. L. Rev. 1361
This is a response to the commentary by Professor David H. Blankfein-Tabachnick ("B-T") on my book, Justifying Intellectual Property (JIP) (2011). In JIP, I describe IP law at three levels: foundations, midlevel principles, and specific doctrines and institutions. At the bottom are foundational justifications for the field, ultimate rationales for why a society would have an IP system. In JIP, I explain why utilitarianism-the traditional standard-bearer in the IP field-has failed as a viable foundation. I argue instead for a more deontological foundation, built on the insights of Locke, Kant, and Rawls. At the same time, I recognize that a good number of my colleagues do not share my doubts about utilitarianism, and that they continue to recognize it as the ultimate basis of IP law. I also acknowledge that various scholars have argued persuasively for alternative foundations based for example on traditional religious precepts. Given this level of disagreement, I turn in JIP to what I call "midlevel principles." These are common themes and tropes that pervade case law and policy discussion in the IP field. The four principles I discuss (proportionality, efficiency, nonremoval or public domain enhancement, and dignity) are consistent with a wide range of divergent foundational commitments. These principles serve as a common language, permitting pluralistic foundational commitments while facilitating analysis and argumentation at the level of basic policies. Midlevel principles facilitate discourse between committed utilitarians, believers in a Talmudic basis for IP law, Kantians, and so on. Finally, at the top of the analytic structure in JIP is the level of specific rules, doctrines and institutions-the everyday surface features of the world of IP discourse.
B-T makes two basic points about JIP. He says that I am wrong to argue that midlevel principles are independent of foundational commitments. And he says that my midlevel principles are not quite right because they do not adequately explain specific case outcomes, including several he uses as examples.
On the first point, I argue in this response that B-T misreads some of the texts on which I ground my deontological rationale for IP law. In particular, I reject his argument that Rawls's concern with distributive justice cannot be reconciled with the property theories of Locke and Kant. As I do in JIP, I argue that viable IP protection (based on Locke and Kant) is well within the range of fair institutional structures that reasonable agents might agree upon in the original Rawlsian position. And on the second point, I argue that B-T misconceives the role of midlevel principles. They are not superdoctrines that control specific case outcomes, but instead conceptual themes that permeate the field, tying together discrete and disparate areas of doctrine and practice. I point out that echoes of these themes can be found in the very cases B-T chooses to illustrate his critique. I also elaborate a bit on how we should think about midlevel principles in IP law. Empirically, they are common themes and tropes found throughout IP cases and policy discussions. But conceptually, they can be thought of as the product of an overlapping consensus in the spirit of the later Rawls.