Legal pragmatism and intellectual property law

Introduction. The legal pragmatism movement that came to prominence in the 1990s generated a body of scholarship that drew on a variety of intellectual sources, ranging from Aristotle's concept of practical reason and the classic American pragmatism associated with Peirce, James, and Dewey to a variety of postmodern thinkers including Hans-Georg Gadamer, Richard Bernstein, and Richard Rorty. Legal scholars including Richard Posner, Margaret Radin, Thomas Grey, and Dan Farber, among many others, came to be associated with a legal pragmatism movement characterized (at a certain abstract level) by a common perspective on the relationship between law and society, coupled with what could often be quite different emphases, applications, and conclusions on the part of the individual commentator. Some of my own early work focused on the relationship between legal pragmatism and the law-and-economics movement, as well as on some possible applications of a pragmatist outlook to questions of intellectual property (IP) law and policy. And much of what I have written since has reflected, at least implicitly, what I view as some of the leading insights associated with legal pragmatism: its understanding of human thought as contextual, “the product…of culture, collectively developed and transmitted”; the (related) rejection of “foundationalism,” meaning in this context the idea that any one body of law can be adequately explained by some grand theory, united by a single goal or value, or logically deduced from certain foundational principles; the idea that knowledge is instrumental and that, in turn, legal rules as well should be evaluated more by their practical consequences than by their formal consistency or conformity to some abstract grand theory; and the importance of practical reason – the practice of making rational decisions in light of uncertainty.