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The Acceptable Face of Intervention: Intellectual Property in Posnerian Law and Economics.

Research output: Contribution to journalJournal article

Published

Journal publication date09/2006
JournalSocial and Legal Studies
Journal number3
Volume15
Number of pages18
Pages455-472
Original languageEnglish

Abstract

This is a review article of Landes and Posner's "The Economic Structure of Intellectual Property Law" (2003). It argues that their defence of intellectual property is not reconcilable with the stance they have elsewhere taken towards government intervention. IP rights are government interventions in market allocations, and their justification is in terms of optimising the social welfare function. As such they should be subject to many of the criticisms L&P have levelled at other interventions, but they are not. Reflection on this paradox leads to interesting insights into the nature of Posnerian �efficiency� and �welfare maximisation�. More broadly, it once again illustrates the way in which Posnerian law and economics is an interaction of mutually reinforcing economic and legal formalisms. A truly critical approach to both the law and the economics of IP could contribute to a fundamental re-evaluation of the social consequences of IP law, especially as it has developed in the recent past, and to some radical proposals for change. But L&P merely apply a hackneyed formula to yet another body of law, and so provide no more than a few ideas for tinkering with details of IP; despite being, as we will see, conscious that the entire edifice rests on the weakest of foundations.

Bibliographic note

This is the version as accepted for publication, but prior to copy-editing, typesetting, and final corrections. The final, definitive version of this article has been published in the Journal, Social and Legal Studies, 15 (3), 2006, © SAGE Publications Ltd, 2006 by SAGE Publications Ltd at the Social and Legal Studies page: http://sls.sagepub.com/ on SAGE Journals Online: http://online.sagepub.com/