The Eunomics of Intellectual Property

Originally developed by the legal theorist Lon L. Fuller, eunomics is the “study of good order and workable arrangements,” directed at understanding the structure, form, or ordering adopted by an area of law. Yet, unlike the ordinary analysis of institutional design, eunomics views the form adopted by an area of law as neither preordained nor wholly contingent. Instead, eunomics sees form as playing an important role in clarifying and developing the goals of an area through a means-ends interaction. This Article develops the central insights of Fuller’s eunomics project for intellectual property. Until now, most theoretical accounts of intellectual property have paid surprisingly little attention to the unique structure and form that each intellectual-property regime embodies and have focused instead on justifying or explaining each regime’s core substantive goals and values in the abstract. In so doing, they have neglected the crucial importance that each regime’s particularized form has on the construction and realization of those values. This Article develops a eunomics-driven typology of intellectual-property forms: the appropriation form, the grant form, and the use-and-registration form. It reveals how each of these forms embodies its own normative structure, value commitments, and conception of institutional authority for lawmaking. And it shows how theorizing about intellectual property and its values remains grossly incomplete without greater engagement with each individual area’s underlying structure.