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Source link: http://archive.mises.org/9378/stealth-libertarianism-to-blame-for-patent-law-flaws/

“Stealth Libertarianism” to Blame for Patent Law Flaws?

February 5, 2009 by

In The Reach of Patent Law and Institutional Competence, one Richard Gold makes an odd argument that “stealth libertarianism” is to blame for some of the problems in patent law. He believes there has been a “clandestine shift in patent law’s normative base from a utilitarian justificatory rationale to a libertarian one; a trend the author refers to as ‘stealth libertarianism.’”

Under the “libertarian” (sic) approach, it is assumed “that the social good is always attained by expanding patent rights in all domains,” but courts dress this “libertarian analysis in the commonly accepted language of utilitarianism. This surreptitious adoption of libertarian analysis is particularly disconcerting because it enables courts to avoid addressing the ethical and distributional effects of patent determinations.”

As far as I can tell from a quick read, Gold maintains that a utilitarian basis should be employed, instead of a “libertarian” one; that courts are incompetent to make these utilitarian determinations; and that if utilitarianism is correctly applied, patent law scope would not be expanded as much as it has been by courts applying a “stealth libertarian” rationale.

I can’t figure out if this guy is an ally or not.

{ 4 comments }

Benjamin Burkley February 5, 2009 at 7:55 am

Interesting article on Drudge this morning for all you IP freaks out there.

Ken February 5, 2009 at 11:00 am

I’m not sure anyone who invokes utilitarianism with a straight face can be an ally.

JackSkylark February 5, 2009 at 5:17 pm

Ken,
So you tossed Mises right out the door, did you?

Ball February 5, 2009 at 8:17 pm

Excuse me! I’m being free here! Enjoying my liberties!

There. Now I can’t be accused of stealth libertarianism. Wish the stealthy statists would follow my lead.

The charge that courts are too inept to interpret utilitarian law (if there could ever be such a thing) is a charge everyone should cop to. Who in their right mind claims to be so all-knowing that he can logically deduce the totality of consequences for every decision as they affect society in general?! Who could have such lacking in humility, such gall?

What he terms ‘libertarian’ is better termed deontological (or perhaps, even better, radical), and is the only rational way to judge ANY action as it pertains to the alter egos and their interests at that time. It is interpersonal and respects not only the inherently subjective nature of desires, but also the limits of our understanding and thus the utility of mores and dogma.

If we must have politicians and judges, may they be dogmatists so their mischief may have limits. Utilitarianism is moored to nothing but the fancy of man, and quite frankly, that’s a scary thought.

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