IPR is statutory law, as opposed to judicial lawmaking.

Most intellectual property law today is statutory. Patent, copyright, and trademark law in the United States are today codified at the federal level.' Nonetheless, an unappreciated reality of U.S. intellectual property, across different regimes, is the fact that, despite this codification, courts continue to play an extremely important role in developing the law gradually. This process is seen in a variety of contexts: when the statute is silent and consciously delegates the development of a rule to courts, when the statute is ambiguous and necessitates judicial creativity to give it meaning and purpose, when the statute does not cover all of the doctrine in an area, or indeed when a regime is developed by state courts, completely independent of both federal and state legislative enactments. Each of these realities gives the lie to the idea that intellectual property (IP) lawmaking is within the exclusive purview of legislatures, and several chapters in this volume explore different dimensions of

"judge-made" IP law.

In his contribution to the volume, Hanoch Dagan argues that there is nothing distinctive (or "exceptional") about property institutions that necessitates a heightened passivity among judges in relation to lawmaking." Indeed there might - and indeed are - situations where courts have distinct institutional advantages over legislatures and ought to exercise their lawmaking abilities within these contexts. Although he does not suggest that judicial lawmaking is to be preferred in the context of property, he remains equally skeptical of "property exceptionalism," which asks judges to refrain from lawmaking in the areas of property and intellectual property. In Chapter