The path toward an alternative consequentialist framework for IP and related fields of law that affect social and cultural life

Madhavi Sunder’s From Goods to a Good Life is an important book.  It contributes in significant ways to understanding our complex relationships with each other and the world we live in, share, and construct.  I especially love her use of vivid, real examples throughout the book.  To do this well involves a special skill and a willingness to dig into facts and contexts that are too easy to ignore for the sake of convenience or because the facts do not fit neatly into pre-existing models. 

As others have noted, the book fits nicely in a rich stream of scholarship that challenges narrow economic frameworks and a host of unwarranted assumptions about culture – including the distorting but common assumption of a fixed culture in the “background.” Although previous commentators have mostly mentioned scholars in the stream who have developed external critiques that challenge narrow economic frameworks from outside economics, there are many internal critiques as well.  I mention this in part because my recent book falls into this category, and as I read From Goods to a Good Life I kept seeing interesting convergences in our ideas.  But more importantly, I mention the internal critiques because in following Amartya Sen, Sunder does not reject economics or an economic framework; rather, she expressly seeks to develop and defend a broader economic framework that better reflects reality and accommodates a broader range of values. 

The book does not offer a framework that is set to compete with the economic framework she seeks to displace.  It is not quite there yet.  Drawing on Martha Nussbaum, Amarya Sen and others, Sunder articulates some features of such a framework.  Critically, she justifies deeper interrogation and rigorous development of an alternative consequentialist framework for IP and related fields of law and policy that affect social and cultural life.  These are important contributions.  Much like Julie Cohen and others in the stream (including me), Sunder has turned to the Capabilities Approach (CA) as a source of normative guidance and the roots of an analytical framework.  But much work remains to be done.  The CA helps us to conceive, recognize, and analyze normative values that are at stake in IP and related fields of law and policy that affect social and cultural life.  To develop an alternative consequentialist framework, however, we need to see more on how the CA helps us to evaluate various commitments, how to prioritize them, how adjusting the “ends” impacts our understanding and design of the “means,” how to implement and operationalize the CA in the cultural environment, and even how the CA intersects and interacts with the welfare economic framework in these fields.  Sunder examines many of these issues in specific contexts (from fair use to essential medicines), and this is important.  But I suspect that going down the CA path could lead to profound and systematic changes to IP and other related legal regimes. 

Madhavi Sunder’s From Goods to a Good Life has encouraged me to explore this path in future work, and I hope others will do so too.  I am grateful to Sunder for paving the way and illustrating the urgency.

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2 Responses

  1. Deven says:

    “But I suspect that going down the CA path could lead to profound and systematic changes to IP and other related legal regimes.”

    Care to name one or two?

  2. Brett says:

    Well, this is the topic of a book I want to write, but unfortunately, have not yet written! And after reading Sunder’s book, I am even more inspired to do so.

    I think the systematic changes depend to some degree on how which capabilities you emphasize or how you work out priorities among capabilities. But one idea, which relates to something Mark McKenna mentioned in his post, is that going down this path could lead to a significant rethinking of how, when, and to what degree we rely on the market mechanism itself to allocate resources and satisfy needs related to cultural and social life. Most economic theories of IP, whether narrowly focused on incentives or more broadly focused on facilitating market exchanges, providing attribution and financial feedback to those who create, and so on, depend heavily on property-enabled markets as the means-system. As Mark noted, Sunder seems to embrace this aspect of the economic framework and seeks to reorient/repurpose and leverage it.

    However, to the extent that the market mechanism systematically fails to account for, value, or support certain capabilities, or to the extent that it distorts allocation of the resources upon which capabilities/opportunities depend, we might need to rethink that basic relationship. Perhaps copyright could/should be designed to facilitate another means/system, such as commons based peer production. Or perhaps the emphasis should be on designing copyright so that only impacts market economies and does not interfere with alternatives.

    Alright, this is a bit of a rambling reply, and I dislike writing in these comment boxes. I might need to write another blog post …