The actor is the most important question in IPR policy and implicates all of solvency.

The core question for intellectual property law is identifying which branch of government, Congress or the Supreme Court, is more likely to effect intellectual property laws that achieve socially desirable objectives. The answer to this question turns somewhat on whether one takes an instrumentalist or deontological view of the goals of intellectual property law.

The Intellectual Property Clause of the Constitution grants Congress the power "to promote the Progress of Science and useful Arts" by enacting copyright and patent laws. 326 Consistent with this consequentialist preamble, the dominant view of intellectual property law and policy in the United States has often been that intellectual property law exists in order to incentivize creative and innovative activity. 327 The incentive theory of intellectual property law is based on the rationale that providing authors and inventors with the potential for intellectual property rights will induce them to engage in greater innovative activity than they would otherwise, from the creation to the production to the commercialization of intellectual works. 328

[*869] Other scholars and experts rely on John Locke's labor theory of property rights and similar concepts to argue that intellectual property law exists to protect authors' and inventors' natural rights in their creative works. 329 This deontological perspective views individuals as automatically entitled to the fruits of their efforts. 330 Natural rights theory supports intellectual property protection on the basis that a creator is morally entitled to control the copying and distribution of inventions or artistic creations produced as a result of the creator's own labor and effort. 331

Under the traditional, romantic view of the branches of government enshrined in the Constitution, those who believe in a deontological basis might tend to favor Congress as the intellectual property law decision-maker and be wary of Supreme Court interference. Natural rights in intellectual property law are an ill-defined concept, and majoritarian preferences could be an appropriate way to define such rights. 332 In fact, experts who support natural rights concepts in intellectual property law often [*870] point to popular opinion and perceptions as evidence corroborating their views about what intellectual property rights should be. 333

The Supreme Court, on the other hand, may appear more attractive to consequentialist proponents. Rather than deciding intellectual property rights based on popular vote, achieving optimal incentives requires balancing the incentive benefits that intellectual property protection provides against the exclusionary costs that it creates. 334 The Supreme Court, not Congress, may be better able to engage in this calculated weighing. In support of this perspective, the Supreme Court has affirmed the incentive objectives of intellectual property law in numerous opinions, recognizing the need to balance the incentives of protection against intellectual property rights "not inhibiting further discovery." 335