Merges and Descartes

Rob Merges is one of the best—no forget that—the best law professor in the intellectual property field. He’s brilliant, thoughtful and a great writer. All of these qualities are on display in his book Justifying Intellectual Property. But even that praise does not do the book justice. The most impressive quality of the book is Merges’s transformation from a scholar who takes a law-and-economics approach to explaining intellectual property to one who has seemingly effortlessly and successfully switched to embracing a philosophical approach. This book marks him as our field’s Descartes—someone who has contributed greatly to the hardest of hard quantitative subjects (remember learning Cartesian coordinates in math?) and who can then switch gears to have a go at philosophy (“Cogito ergo sum”). To me, Justifying Intellectual Property’s most impressive attribute is its revelation of Merges’s Cartesian range of abilities. The parallel to Descartes is also, I’m afraid, the biggest stumbling block I have in appreciating the book.

To understand Merges’s achievement in this book, a reader must understand the full scope of the transformation that has occurred here. Merges was the dean of our field’s law and economics school. Among his many great works, his article “On the Complex Economics of Patent Scope” is watershed piece. Just three years ago Indiana University organized an entire conference around that article’s thirty year anniversary. Pretty much all U.S. professors who cared about the law and economics of patents came to the conference to praise Merges’s contributions.

Now in Justifying Intellectual Property, Merges (in his own words) “go[es] back to the dugout, pick[s] up a bigger bat, and swing[s] from the heels.” (At page ix.) It’s a homerun, or as Jonathan Masur said yesterday on this blog, a “masterpiece … [that] accomplish[es] something monumental, elevating deontic theory to a sustainable position as the foundation for intellectual property law.” That kind of successful scholarly transformation doesn’t happen often, and when it does a comparison to a great thinker like Descartes is not unwarranted.

But there’s another reason to make the comparison to Descartes. Like Descartes, Merges’s foray into philosophy began as “a search for foundations.” (At page. 2.) Merges knows well the law-and-economic foundation of intellectual property law—he knows it so well that he understands the approach leads to “[i]mpossibly complex”—“overwhelmingly complicated”—calculations of the “costs and benefits” of intellectual property. For Merges, those “computational complexities … cast grave doubt on [the] fitness [of an economic approach] as a workable foundation for the field.” (At p. 3.) And so Merges has sought out a better and more satisfying foundation than economics on which to justify intellectual property.

That’s very much the same inspiration at the heart of Descartes’s most famous philosophical work, Principles of Philosophy, for Descartes believed that “all Philosophy”—here meaning all rational knowledge—“is like a tree, of which Metaphysics is the root, Physics the trunk, and all the other sciences the branches that grow out of this trunk.” Descartes believed that if he could get the roots—the metaphysics—rigorously correct, he would then have a basis to reason out the rest of the sciences, starting with physics.

Did Descartes succeed? As a philosopher, of course. As a physicist who could accurately describe the world of natural phenomena, not so much. And that’s the concern I have with Justifying Intellectual Property.

If we face—as we do face—seemingly impossible empirical and computational complexities in establishing a justification for intellectual property through the science of economics, that frustrating situation only strengthens the parallel with Descartes’s era. We might think that Descartes lived in enlightened era when true science, such physics, was beginning to yield solid insights into the way the world worked. After all, Copernicus lived about a century before Descartes, and at least he had finally cleared up the matter of whether the earth went around the sun or vice-versa. But that’s not so.

Copernican cosmology was an empirical disaster; it just didn’t fit the evidence as well as the pre-existing geo-centric system (which had evolved a complex, but empirically-grounded, system of spheres of motion). Tycho Brahe—the greatest astronomer in the approximately half century between the death of Copernicus and the birth of Descartes—rejected the Copernican system in favor of a mixed system with the sun still going round the earth, but with other planets going round the sun. Johannes Kepler—roughly a contemporary of Descartes—came up with the seemingly more outlandish view that, while the earth and other planets did revolve around the sun, they did so in ellipses rather than in nice neat Copernican circles. On top of it all, no one had any idea why any of the celestial bodies was moving in the first place. In sum, really basic questions about physics and cosmology were totally up for grabs in Descartes’s era; the empirical evidence was frustratingly inconclusive; and the theory was either a disaster or nonexistent. Confusion reigned; it probably seemed like a good time to look for a better foundation—better roots—that could support physics and the rest of the tree of knowledge.

As an inquiry into metaphysics and philosophy, Descartes was brilliantly successful, but his ideas on physics and cosmology—such as his vortex theory of planetary motion (which is also set forth in his Principles of Philosophy)—didn’t lead anywhere productive; they were an excursion down the rabbit hole. “Cognito ergo sum” is a great piece of reasoning; Descartes proved his own existence from his own thoughtful doubts about his existence. But as a helpful foundation for reasoning out the rules of planetary physics, that dog doesn’t hunt.

 That’s my worry about any work on intellectual property, or any work on any economic regulatory system, that tries to look to Emmanuel Kant and other philosophers for its foundations. To be sure, Kant’s a great ethicist and philosopher, but if we are frustrated with the complexities of economic theories and are searching for a more solid foundation for justifying the rules of intellectual property, is Kant (or Locke or Rawls or Nozick) really going to help lead us out of the wilderness? Indeed, Kant’s a good example. Kant can be said to provide an intellectual basis for much of what we find in modern liberal democracies, but we cannot forget that there is also a direct intellectual lineage from Kant to Hegel to Marx. Lest I be misunderstood, I’m not, of course, making some sort of ridiculous claim that Kant was Marxist or something similarly absurd. Instead, my point is about indeterminacy. Yes, Kant can provide a basis for intellectual property, but Kant can provide a starting point to get to lots of things, and so can Locke and Rawls and Nozick.

And so that’s my stumbling block with Justifying Intellectual Property. Still, none of this is deny the book’s intellectual achievement. Merges has given all intellectual property scholars the opportunity to take a break from (once again, to use his wonderful prose) our “staccato series of law review articles, punctuated by casebook revisions, with the occasional ‘think piece’ woven into the mix.” (At p. ix.) He’s given us a chance to sit back and ask what’s the fundamental basis for everything we are studying. That’s brilliant academic work, and it’s only a compliment that a skeptic can compare him with Descartes.