Statutory provisions demand common law lawmaking---state common law proves space for the federal judiciary.

It is worth emphasizing that I am not arguing for the replacement of all statutory intellectual property regimes with common law alternatives. My normative claims in this Article are two- fold. First, that some forms of informational resources, to the extent that they merit protection at all, would benefit from a common law approach to protection. Discussions of institutional design in intellectual property have thus far paid little attention to the potential benefits of the common law. Thinking creatively, scholars and policymakers ought to recognize the viability of common law protection as an alternative to one-size-fits-all statutory approaches. Second, even within the world of federal statutory intellectual property, courts should understand a larger number of statutory provisions as actively delegating lawmaking power to them. Federal courts should embrace pragmatic incrementalism in intellectual property protection whenever needed, and be far less dogmatic about deferring to Congress for guidance.

My choice of state common law regimes to explicate the functioning of pragmatic incrementalism is certainly not to contrast state law with federal law. Neither is it directed at showing that the trademark, copyright, and patent regimes have consciously disavowed any reliance on the common law method. Several features of pragmatic incrementalism may indeed be found in the functioning of parts of the federal intellectual property regimes, even though the overlay of statutory regulations and administrative rules has resulted in the common law-like parts receding in importance. Rather, this choice is to illustrate how courts are well equipped to develop rules for intellectual property in the absence of direction from legislatures and the process by which they can continue to do so in coordination with legislative intervention that takes their lawmaking role seriously. The fact that most common law in the United States is today state law rather than federal law is thus a descriptive reality that this choice represents, rather than a prescriptive one. I leave for future work a fuller discussion of how the federal regimes might do well to integrate common law rule development into their framework and functioning, and indeed the costs and benefits that this might entail.