Chapter 11: Controlling the Means of Innovation: The Centrality of Private Ordering Arrangements for Innovators and Entrepreneurs
Sean O’Connor* 11.1 INTRODUCTION The academic literature on innovation law and policy generally focuses on what role the government should play in an innovation economy. The debate often centers on whether innovators and entrepreneurs should largely be left alone to create their own private ordering arrangements, or whether government agencies should be actively involved in regulating those relationships. At the same time, academic intellectual property (IP) policy debates usually focus on balancing the public domain against IP owners’ rights with little attention to how innovators and entrepreneurs actually use IP. Thus, the emphasis is generally on the scope of rights and enforcement issues. The thesis of this chapter is that little of the foregoing actually addresses the private ordering legal environment in which innovators and entrepreneurs actually ‘live’ and spend the vast majority of their legal efforts when commercializing their ideas or building their ventures. There are a few likely reasons for this disconnect. First, the traditional path to legal academia is through serving on law review at a highly ranked law school, then at a prestigious federal judicial clerkship – preferably at the Supreme Court – and then either a year or so at an academic fellowship or maybe as a litigation associate at a major law firm. None of this leads to much knowledge or experience of even what practicing litigators do, much less of the opaque world of transactional law. But law school hiring committees still favor this profile (largely because it tracks their own) and so the cycle...
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