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Form in Intellectual Property Law

David Booton

This book sets out to expose, analyse and evaluate the conflicting conceptions of legal judgment that operate in intellectual property law. Its central theme is the opposition between law-making by way of the creation of generally applicable rules and law-making done at the point of application through case-by- case decisions tailored to the particulars of individual circumstances. Through an exploration of form, the analysis sets out to provide insights into how intellectual property law achieves a balance between various competing interests.
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Chapter 3: Legislative power and harmonization

David Booton


The choice between rules and ‘rulelessness’ can be seen as presenting a principal–agent problem, where the legislature, as principal, by the adoption of a certain form of legal direction, aims to control the decisions of its agents (the courts). The merits and demerits of ex ante versus ex post decision making; the avoidance of the perception of bias in decision making; and the demands and attendant costs of harmonizing the national intellectual property laws of European countries, one way or another, can be seen in these terms. There are considerable tensions when different factors influencing choice of form point to contradictory outcomes. Keywords: legislature; courts; ex ante; ex post; bias; harmonization

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