That’s key to reigniting judicial common law---intellectual property rights are the core area where case-by-case is obviously better, but Congressional overreach historically reigns---the counterplan solves.

In describing the virtues of the common law’s method of incremental rule development, Richard Epstein once noted that it “has hidden resources that are all too easily overlooked by scholars who start with some grand claim” for the institution.287 Nowhere is this phenomenon more apparent than in the world of intellectual property law, long thought to be entirely about federal statutory regimes that center around one or more core values. In their focus on these regimes, discussions of the subject have altogether ignored the utility and significance of common law intellectual propertyand, as I have argued, without sufficient justification.

Pragmatic incrementalism, the method of lawmaking that common law intellectual property regimes employ, influences both the structure and content of the law. As a form of common law rule development, it generates rules and principles from within the reality of a bilateral dispute presented to a court. Additionally, it emphasizes the virtues of beginning the process without looking to an abstract theory to justify the outcome, of focusing on the context for a rule, of understanding the short- and long-term consequences of a rule, and of proceeding with caution, one case at a time. These virtues can indeed be identified with several techniques that courts routinely adopt when applying and developing common law intellectual property rules. The continued vitality and robustness of these regimes under state law is in many ways a result of courts’ use of these techniques to address many of the substantive and structural issues that continue to haunt traditional intellectual property.

The working of pragmatic incrementalism in common law intellectual property also serves to highlight the reality that some areas of law—such as intellectual property—may stand to benefit more from attempts to develop theories of lawmaking rather than just law. Focusing on the lawmaking process is more than just a procedural concern, for, as we have seen, the common law’s structure of lawmaking greatly influences the substantive content of the law that courts develop and apply. Discussions and debate in intellectual property law would perhaps gain considerably from greater attention to the institutional process by which its entitlements are created and enforced in practice.

For centuries now, courts, policymakers, and scholars from a multitude of disciplines have struggled, without success, to articulate a coherent theoretical justification for intellectual property—one that does justice to the myriad interests and values that are central to it. This reality has long been taken to represent a fundamental failing of the subject. Yet, as I have argued, this theoretical incoherence ought to be seen instead as a starting point for a common law analysis of the subject, one that focuses on what parties affected by the law seek in practice, and the multi-faceted ways in which courts balance, limit, and help realize these needs on a nuanced basis over time, allowing the area of law as a whole to “work itself pure.”288