Perm do both

A last possible objection is also perhaps the strongest, since it looks to the practical side of pragmatic incrementalism. This is that the defense of pragmatic incrementalism in common law intellectual property pays insufficient attention to the problems associated with looking to courts for rule generation. These shortcomings are said to derive from: (1) questions of judicial competence, whether judges are capable of making the policy decisions that intellectual property law demands; and (2) the problem of dividing responsibility between judge and jury in the adjudicatory process, an enduring problem of the adjudicatory process. The analysis below examines each issue and its significance for intellectual property as it relates to some of my previous claims about pragmatic incrementalism. The argument from competence has two parts to it. The first is the claim that since common law intellectual property tends to be state law, state courts may not be as well equipped and competent as their federal counterparts, given that a large number of states appoint judges through elections or other political processes. 253 This objection is of limited significance for my claim here, since as noted before, nothing in my defense of pragmatic incrementalism ties it to state courts.2 54 Indeed the broader normative goal of the project is to have federal law (and courts) internalize some of the methods that state courts developed and routinely apply. We may therefore move on to the second part, which is the more generic claim that courts, whether federal or state, are less competent than legislatures or indeed administrative agencies in dealing with matters of a specialized nature, of which intellectual property law is clearly a subset. The claim that specialization and complexity necessitate less judicial involvement is hardly true of a host of other areas. Tort law, antitrust law, and several other areas exhibit similar levels of complexity, and yet have for ages been handled and developed principally by courts. This is no less true of intellectual property law in general, where generalist courts have always arbitrated disputes and on occasions moved the law along incrementally. Additionally, the intellectual property system's one experiment with a specialized court for patent law has hardly been a runaway success, with many questioning the wisdom behind allowing a specialized court to develop its jurisprudence independent of the general corpus of law and legal reasoning that applies to other areas. 255 When complexity is indeed an issue, and requires the input of experts from different disciplines, the answer may lie in fostering a greater role for administrative agencies in the lawmaking process, to collaborate with and inform judicial rule development. The role of the Federal Trade Commission ("FTC") in developing antitrust law might in this context represent a model to follow. 2 56 Antitrust law, much like common law intellectual property, is principally the creation of courts through the common law process. Yet, the FTC issues guidelines, studies, and instructions on different areas and industries, to which courts routinely look (and often defer) in their analysis and development of the law.2 5 7 The answer may thus lie in more agency involvement rather than attempting to take the primary task of lawmaking away from courts and handing it back to legislatures. As this argument has emphasized throughout, adopting pragmatic incrementalism as an approach to lawmaking does not necessarily entail abjuring all reliance on legislation. Indeed the common law regimes discussed previously have come to reflect that reality, with many of them now being codified in different forms. The answer thus lies in a collaborative lawmaking exercise, with legislatures or agencies providing concrete, specialized rules when needed, and courts having a greater say in developing parts of the law that are best suited to incremental antifoundational development. Indeed, as some have argued, a similar collaborative model existed early in the development of copyright law, before the system turned entirely to statutory reform for solutions.