That foundationalism is -
the idea that any one body of law can be adequately explained by some grand theory, united by a single goal or value, or logically deduced from certain foundational principles.Legal pragmatism instead is based on the idea that knowledge is instrumental and that, in turn, legal rules as well should be evaluated more by their practical consequences - consequences that may, it seems, be assessed from an economic perspective with a Chicago school flavour - than by their formal consistency or conformity to some abstract grand theory. Cotter emphasises the importance of "practical reason, the practice of making rational decisions in light of uncertainty" before going on to suggest that
that a legal pragmatist approach to IP law has both strengths and weaknesses. Among the strengths of such an approach 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 circumstances — in the present case, to changing technological environments. At the same time, however, some versions of a legal pragmatist approach risk exacerbating certain negative trends in the evolution of IP law and policy. An approach that naively embraces totality-of-the-circumstances tests, for example, may induce IP users to overcomply with their legal obligations and thus raise social costs without a commensurate public benefit. Similarly, 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; and, more generally, may blunt the critical edge necessary to counter the ever-expanding scope of some IP rights. Policymakers, in short, should avoid the temptation to turn legal pragmatism’s antifoundationalist stance into a rigidly foundational principle of IP law and policy.There is a more grounded approach in Stuart Banner's crisp American Property: A History of How, Why and What We Own (Cambridge: Harvard University Press 2011), which explores the history of spectrum licencing, patents, personality rights, real property and other rights in the US.
'Copyright and Social Movements in Late Nineteenth-Century America' [PDF] by Steven Wilf in 12(1) Theoretical Inquiries in Law (2011) argues that -
The cultural turn in copyright law identified authorship as a rhetorical construct employed by economic interests to strengthen claims to property rights. Grassroots intellectual property political movements have been seen as both a means of countering these interests’ everexpanding proprietary control of knowledge and establishing a more public regarding copyright system. This Article examines one of the most notable intellectual property political movements, the emergence of late nineteenth-century agitation to provide copyright protection for foreign authors as a social movement. It places this political and legal activism within the larger framework of Progressive Era reform. During this period, activists promoted the idea of the public — and not simply the author — as primary to the workings of American copyright. The framing of the purposes of copyright, the appeal to a broader public, and the complex negotiations surrounding the passage of an international copyright act after a long period of gestation was formative to the creation of modern United States copyright law. Ironically, the movement for international copyright also sharpened the identification of interest groups. The first modern American comprehensive copyright legislation, the 1909 Copyright Act, was drafted by gathering together these groups for negotiations remarkably similar in style to those which led to the protection of the rights of foreign authors — but which would strongly embrace a proprietary model.Wilf's article is complemented by 'The Origins of American Design Protection' from Jason Du Mont & Mark Janis. Those authors comment that -
Design patent protection is the oldest American form of intellectual property protection for ornamental designs, but still the most enigmatic. Congress passed the first design patent legislation in 1842, operating on the assumption that existing rules for utility patents could be incorporated en masse to protect designs. This Article questions that assumption. Drawing on new archival research and historical analysis, this Article demonstrates for the first time how the design patent system originated. We analyze the international trade aspects of the first design patent legislation, linking the legislation with a brief burst of protectionist measures associated with the Whig party. We also examine technological innovations that ushered in the first major era of American industrial design in key antebellum industries, and we analyze lobbying efforts on behalf of those industries that led to proposals for early design protection, proposals that did not assume the incorporation of patent rules. We also prove for the first time how the American design patent system originated as a knock-off of British copyright and registered design legislation, and why the American system was likely forced into a patent rubric. Finally, we conclude by offering concrete suggestions for the courts and Congress to ease the design patent system back to its original roots.
