Legal Pragmatism and Intellectual Property Law

The legal pragmatism movement that came to prominence in the 1990s adopted a skeptical attitude toward »foundationalism« - the idea that any one body of law can be adequately explained by some grand, foundational theory, or united by a single goal or value. The pragmatists' embrace of anti-foundationalism, in turn, emphasizes the virtues of concepts such as value pluralism, practical reason, and what Cass Sunstein refers to as »incompletely theorized agreements« for reaching consensus on particulars when opinions differ at a higher level of abstraction. This article argues that a legal pragmatist approach to intellectual property (IP) law has both strengths and weaknesses. Among its strengths are its recognition of the competing values that animate IP policy and doctrine\ its understanding of the limits of both instrumental and natural rights theories in explaining and shaping the contours of IP rights\ and its appreciation for the common law method of incrementally adapting doctrine to changing technological environments. At the same time, however, a legal pragmatism that naively embraces totality-of-the-circumstances tests may induce overcompliance on the part of IP users. An approach that overemphasizes the unquantifiable and the incommensurable may inhibit the use of economic analysis as a tool (albeit an imperfect one) for precisely stating one's assumptions, predicting consequences, and testing results\