Robin Malloy on Entrepreneurship, Property, and Markets

I recently wrote about the Creativity, Law and Entrepreneurship Workshop at the University of Wisconsin in which I participated. One of the speakers, Robin Malloy who is the E.I. Chair and Distinguished Professor of Law at Syracuse University College of Law,  emailed me and about the ideas he presented. I am quite interested Robin’s ideas and approaches to this area of the law, so I asked whether he would mind writing a short piece to share with our readers. He was gracious enough to agree. So I am pleased to offer Robin Malloy:


Law and Entrepreneurship offers many opportunities for interdisciplinary work and for finding common ground among the various categories of property (real, personal, intangible, cultural, IP, etc.) The recent Conference at Wisconsin on Creativity, Law and Entrepreneurship highlighted this exciting possibility. In thinking about property transactions and entrepreneurship I believe there are at least four central starting points, all of which can be expanded. 1) It is important to get beyond definitions of property and look at what we can do with property… to look at transactions in exchange (asking not just what is property but also, and more importantly, what can we do with property). And from the perspective of market exchange theory asking how we capture and create value from transactions in property. 2) Entrepreneurship requires us to develop a more complex vocabulary. We need to start thinking about a variety of types of entrepreneurship instead of always dealing in an abstract sense with just one big category called “entrepreneurship”, as if all entrepreneurship is of the same type or kind. We need to develop more nuanced categories of entrepreneurship based on different observable patterns of behavior and motivations as they might relate to different types of transactions and different categories of property. 3) Creativity is key to entrepreneurship and this requires us to incorporate a theory of interpretation because creativity requires both an understanding of current boundaries of meaning and a recognition of a possibility for setting new boundaries. Recognizing something as new, of course, requires a cultural-interpretive reference point and, thus, interpretation theory is key to understanding a set of given relationships and to imagining the potential for something new and different. 4) The relationship between law and entrepreneurship requires a dynamic approach to market theory. Traditional efficiency analysis is not entirely helpful since it is really a status quo analysis with little application to creativity. Efficiency is directed at thinking about ways of allocating already known resources and not about the market conditions under which creativity, innovation, and discovery are best facilitated. This means that there is a need to think creatively about the meaning of markets and the tools we use to understand law in a market context.

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1 Response

  1. A.J. Sutter says:

    Deven, it was generous of you to make the invitation, but would you mind also interpreting the result? I can’t tell whether Prof. Molloy has “an understanding of the current boundaries of meaning,” but this blurb seems to have transcended all such boundaries — past, present and future.

    Among other things, it isn’t clear whether Prof. Molloy is proposing what (a) entrepreneurs need to know/consider, or (b) what lawyers who work with entrepreneurs need to know/consider, or (c) what law profs who want to create a new “Law and …” should invoke. As both a practicing lawyer and entrepreneur (and erstwhile VC), I’d eliminate (a) and (b). Entrepreneurs don’t use interpretation theory for anything, especially for breaking boundaries — they just break them. Market theory doesn’t have any relevance to getting deals done as a lawyer, nor that much to real business (marketing theory is something else again). The best entrepreneurship also considers what the business can do to help customers or society at large, rather than making property so central. “Creativity” about property all too often means creating new forms of artificial scarcity; if Prof. Molloy instead is thinking about how to make money from “open source” type approaches or sharing stuff, he could have simply said so, instead of blowing smoke.