تمرکز زدایی از عملکرد قانونگذاری: بازارهای قانونگذاری خصوصی و حقوق مالکیت معنوی در قوانین

In a series of articles and a book published shortly before his death, Professor Larry Ribstein argued for decentralizing the lawmaking function, enabling private parties to make law, and harnessing the market as a force for legal innovation. As part of this project, Professor Ribstein, along with Professor Bruce Kobayashi, called for broader intellectual property (IP) rights in legal creations. Their argument relies on the conventional quasi-public goods rationale for IP rights. Innovators have suboptimal incentives to create new law in the absence of property rights because competitors can free ride on their creations. As a result, without IP rights, privately-made law would be created, as it is today, mostly as a byproduct of other activities such as litigation or political rent-seeking. And byproduct lawmaking is likely to produce suboptimal law. Broader IP rights solve the free rider problem and thus make possible a vigorous private lawmaking market. This article examines the case for granting broader IP rights in law as a way to incentivize legal innovation in a private lawmaking market. The discussion begins by briefly examining some of the benefits and costs of harnessing the private market to produce better law. With this background in place, the article then turns to the case for IP rights in law. It first surveys the limited scope of protection under current IP law and then discusses the benefits and costs of expanding IP rights. The article closes by focusing on some special problems with granting property rights in aspects of common law adjudication, such as litigation documents and judicial decisions. In the end, the goal is to inject a note of caution. Private lawmaking is more attractive for some types of legal innovation and less attractive for others, and it is not clear that broader IP rights are necessary or desirable to spur legal innovation in a private market. It might be best to proceed incrementally, by first removing the professional barriers to competition and then expanding IP rights only if experience with the new market supports the need for additional protection.

In a series of articles and a book published shortly before his death, Professor Larry Ribstein argued powerfully for decentralizing the lawmaking function, enabling private parties to make law, and harnessing the market as a force for legal innovation (Kobayashi and Ribstein, 2011a, Kobayashi and Ribstein, 2011b, Ribstein, 2010 and Ribstein, 2004; see also Butler and Ribstein, 2011 and O’Hara and Ribstein, 2009). He described technological and economic developments that he claimed were pushing the law toward decentralization, and he predicted the eventual demise of the huge law firm, the breakdown of professional rules that restrict the practice of law, and the proliferation of private suppliers of law and legal services competing in a global market (Ribstein, 2010). On the normative side, he insisted that the market could be a valuable device for spurring legal innovation and making legal services more generally available. As part of this larger project, Professor Ribstein described optimal conditions for the private production of law. Together with Professor Bruce Kobayashi, he argued, among other things, that a vigorous private market in law requires intellectual property rights in legal creations (Kobayashi and Ribstein, 2011a, Kobayashi and Ribstein, 2011b, Kobayashi and Ribstein, 2013a and Kobayashi and Ribstein, 2004). Their argument relies principally on the conventional quasi-public goods rationale for IP rights. Innovators have suboptimal incentives to create new law in the absence of property rights because competitors can free ride on their creations and sell at prices below what an innovator must charge to recoup its fixed creation costs. As a result, most privately-made law will be created as a byproduct of other activities such as litigation or political rent-seeking, and byproduct lawmaking is likely to produce suboptimal law. Broader IP rights solve the free rider problem and thus make possible a private lawmaking market that can produce better law through competition. In this article, I critically examine the proposal to grant IP rights in privately-produced law as it relates to the more general effort to spur legal innovation through private lawmaking markets. While I comment on work by Kobayashi and Ribstein, I do not mean to single them out in particular. I understand that Professor Ribstein's views were in flux just before he died, and Professor Kobayashi's ideas have evolved while carrying their joint work forward. In the later stages of their work together, Ribstein and Kobayashi were somewhat more cautious about private lawmaking and IP rights in law, and in very recent work, Kobayashi examines practical limitations in greater depth. Thus, I intend this article as a contribution to an ongoing discussion about the proper scope of IP rights and private markets in law, a discussion that has been shaped in major ways by the insightful work of Professor Ribstein. My analysis begins by briefly examining the general idea of harnessing the private market to produce better law. The work in this area by Ribstein and Kobayashi, Professor Gillian Hadfield, and others does a wonderful job of loosening the strong grip of the conventional lawyer-centered paradigm and freeing the imagination to envision a very different world consisting of multifarious suppliers of legal products and competitively produced law. I highlight some costs of private lawmaking and sound a note of caution. But in doing so, I mean to guide, not halt, this re-imagining process. With this background in place, I then examine the case for IP rights in law. While my primary focus is on private lawmaking, the issue of whether to grant IP rights in law is not limited to this context, and many of my arguments apply more generally. I first survey the availability of IP protection under current law and then discuss the benefits and costs of expanding IP rights. The reasons why current law confers only limited rights are also reasons for concern about expanding those rights. In particular, the benefits of extending IP protection depend to a considerable extent on the availability of alternative mechanisms to solve the free rider problem, and the costs of broader IP rights depend primarily on impediments to information diffusion that IP rights create. I close the discussion of IP rights in law by focusing on some special problems with granting property rights in aspects of common law adjudication. In the end, I recommend a cautious approach. Given the potential problems with broader IP protection, it might be best to proceed incrementally, by first removing professional barriers to competition and then expanding IP rights only if experience with the new market supports the need for additional protection. A word of clarification is in order at the outset. This article opts for breadth over depth. I make a number of empirical assertions without offering empirical support. These assertions are quite plausible, I believe, but they are also speculative. Moreover, the article is more “think piece” than systematically developed analysis. I raise a number of points but leave it to others to develop them with greater care.

We live in a remarkable time of rapid technological innovation and unprecedented globalization. We also live in a time when many people are priced out of access to essential legal services. The traditional model of lawyer hegemony and centralized lawmaking might not be suitable for generating good law and providing access. This was the insight of Professor Ribstein's work. His contribution was to imagine a world in which private parties compete to make law and then to explore with some care how well that world would work and what legal resources it would need to flourish. There is much to admire in this vision of private lawmaking. The legal profession exercises too much control over the production of law, and greater decentralization with enhanced competition makes a great deal of sense. Still, there are limits. Decentralization should be approached carefully, with an eye to its costs as well as its benefits. This article has sought to identify some of the less obvious but still important sources of problems. The conclusion is that private lawmaking is more attractive for some types of legal innovation and less attractive for others. Furthermore, it is not clear that IP rights are needed to spur legal innovation in a private market. In the end, my goal is to inject a note of caution, not to stop efforts to explore the potential of private lawmaking. Markets have many virtues and the law is hardly immune from their beneficial influence. At the same time, law is a special institution with distinctive features, some of which do not fit market competition at all well. The challenge is to sort between the laws and legal institutions that would benefit from a private market and those that would not. This is no easy task, but it is one well worth pursuing.