Edited by Frank Fagan and Saul Levmore
Chapter 10: Intellectual property and legislative innovation
Intellectual property law is motivated by the idea that innovation requires encouragement with property rights or other rewards. Law seeks to spur innovation in the private sector with copyrights, patents, and other devices, but none of these encourage innovations in lawmaking itself. As in the private sector, a first-mover advantage or harmonization among jurisdictions could influence the rate of innovation in lawmaking, though not necessarily in an optimal way. This chapter examines various kinds of lawmaking in order to evaluate the likelihood of optimal innovation. It takes account of constituents’ likely preference for free-riding on other jurisdictions’ experiments. Lawmakers, in turn, have reason to take a wait-and-see approach so as not to be associated with unsuccessful disruptions. The analysis examines lawmakers’ incentives and draws on several examples, including the design of healthcare systems, the legalization of same-sex marriage, and school reform. In many settings, lawmakers seem to be assigned the task of execution rather than innovation; if lawmakers are best understood as ‘assemblers’ of constituents, consensus, and ideas developed elsewhere, then it is noteworthy that this sort of activity in the private sector is (also) not encouraged by intellectual property law. The discussion includes the roles that prizes and inter-jurisdictional alliances might play in encouraging innovative lawmaking. It suggests that small-scale experimentation is easier in the private sector than in the public sphere, and this too likely affects the rate and thus timing of legal innovation. Keywords: innovation, intellectual property, harmonization, incrementalism
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