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An IP Example to Back Up Solum

Larry Solum has an interesting pair of posts on the role of interdisciplinarity in legal scholarship. Solum’s central claim is that legal scholars need to be familiar with a core set of tools and discourses, including

1. Normative legal theory
2. Law and economics
3. Empirical legal methods
4. Positive Political Theory
5. Social Science & History

Solum then takes on the predictable challenges:

Why does an economist need to know anything about normative legal theory? Why does a legal philosopher need to know what a test for statistical significance is? . . . . These are large questions. One answer is that legal scholars need to be able to address normative questions about law–and normative questions are not bounded by the walls that separate the disciplines. Whether a given legal rule is all things considered the best rule is not a question where we can guarantee that the right answer can be discerned through armchair philosophical speculation or by economic modeling or by an empirical study or by introspection informed by the lessons of history.

I think that’s exactly right. For an example of a paper which takes such methodological pluralism seriously, I highly recommend Dinwoodie and Janis’s piece Confusion over Use: Contextualism in Trademark Law. The authors resist a strictly economic approach to TM controversies, noting that “a conception of trademark law as nothing more than an
instrument by which to reduce search costs precludes” discussion of many interesting and difficult challenges. Like Julie Cohen’s recent discussion of “methodological anxieties” in IP, Dinwoodie and Janis’s work shows the promise of Solum’s vision: a view of vexing legal problems more inclusive and engaging than any single historical, economic, normative, or sociological lens could provide.