Private Law Drafting, Intellectual Property, and Public Laws

ABSTRACT:

Public lawmakers have inadequate and misaligned incentives to engage in legal innovation. Private lawmaking is offered as a potential solution to this problem. However, private lawmaking faces a dilemma: In order to be effective, the cost-reducing standard forms produced by private law drafters need to be publicly enacted. However, enactment as law eliminates the intellectual property rights that are essential to properly motivate the private law drafters to produce such forms. As a result, private law drafters will have inadequate and misaligned incentives to engage in legal innovation that would provide widespread benefits. Absent some mechanism to allow the private law drafter a way to appropriate the gains from his investment in cost reducing legal innovation, the promise of private lawmaking may be minimal.