Wednesday, February 19, 2014
Andreas Rahmatian, University of Glasgow, School of Law, has published A Fundamental Critique of the Law-and-Economics Analysis of Intellectual Property Rights at 17 Marquette Intellectual Property L. Rev. 191 (2013). Here is the abstract.
The economic analysis of law and legal institutions or the law-and-economics movement, originally a distinct North American phenomenon that emerged in the 1960s, has become a widespread tool for a certain conceptualisation and understanding of legal problems. Prominent representatives of the law-and-economics approach regard especially intellectual property as a ‘natural field for economic analysis of law’. However, the law-and-economics analysis interprets legal rules and institutions with the methodology of economics, and so transforms them into unrecognisable artefacts. This is particularly so with regard to intellectual property law: while in the case of trademarks law-and-economics analysis is merely too simplistic and often superfluous, in the cases of patents and particularly copyright it is positively harmful to these legal institutions. Economic methodology has not been developed for the analysis of law, and the purpose of legal methodology is not the scientific exploration of economic efficiency. This article is a fundamental critique of the application of the law-and-economics analysis to intellectual property law from a lawyer’s viewpoint, which is also shared by some prominent economists. It is not a rejection of an economic method for the analysis of economic phenomena which presuppose, or have been created by, the law, such as supply and demand on the market which requires at least contract and property rights (or intellectual property rights) for its functioning. But it is a rejection of the remodelling of legal institutions and decisions in intellectual property law in accordance with certain scientific methods and paradigms developed in (and for) economics, and of the claim that a corresponding analysis could yield any epistemic value for the law and a normative standard of efficiency for future legal policy.
Download the text of the article from SSRN at the link.