Citation: Matthew Sag, Tonja Jacobi & Maxim Sytch, Ideology and Exceptionalism in Intellectual Property – An Empirical Study, 97 California Law Review 801 (2009)
In a nutshell:
In Ideology and Exceptionalism in Intellectual Property, Matthew Sag, Tonja Jacobi, and Maxim Sytch argue that, contrary to the conventional wisdom among IP lawyers and scholars, judicial ideology is a significant determinant of Supreme Court intellectual property decisions: the more conservative the justice, the more likely he or she is to vote in favor of the IP owner.
Summary
Ideology and Exceptionalism in Intellectual Property tests a belief the article calls “IP exceptionalism,” the widely held view that copyright, patent, and trademark cases turn on doctrinal rules and field-specific policy questions and are therefore immune from the liberal-conservative divide that political scientists have documented across most areas of Supreme Court decision-making. To test that belief, we constructed the Supreme Court Intellectual Property Database, covering 102 IP cases and 844 individual justice votes from 1954 through 2006, and coded each outcome on a new PRO-IP variable recording whether the Court sided with the party asserting the IP right.
The regression results show that ideology is a statistically and substantively significant predictor of votes in IP cases, whether ideology is measured by Martin-Quinn scores or by the party of the appointing president. Moving from the liberal extreme of the historical Martin-Quinn scale to the conservative extreme increases the odds of voting for the IP owner by 79%. The effect appears in every subfield of IP, although justices at all points on the ideological spectrum are significantly more likely to side with the IP owner in copyright cases than in patent cases. A spline regression separating liberal and conservative justices shows that the effect of ideology on IP outcomes is significant only for conservatives; liberal justices appear divided, perhaps because IP forces a choice between free expression values and suspicion of expansive corporate property claims.
At the same time, the article finds that IP is not entirely ordinary. The effect of ideology in IP cases, while significant, is measurably weaker than in the Supreme Court’s docket as a whole, and weaker still when compared to prominent social issues such as voting rights or the death penalty. We conclude that ideology matters in IP, but so does law, and we draw out practical implications, arguing for example that Lawrence Lessig’s appeal to the conservative justices in Eldred v. Ashcroft was misdirected because conservative votes in IP cases track pro-property ideology, and interpretive fidelity was never likely to trump it.
Why read this article?
Beyond its headline finding, the article offers a compact introduction to the attitudinal model of judicial decision-making and the empirical literature testing it, including the puzzle that ideology is easy to detect in civil rights and criminal cases but has been hard to find in economic cases involving tax, securities, and antitrust. It also sets out the strongest theoretical case for IP exceptionalism: IP rights sit uneasily between natural rights and utilitarian justifications, and the analogy to private property competes with analogies to government regulation and subsidy that point in the opposite ideological direction.
The empirical sections contain descriptive results of independent interest. The correlation tables show, for example, that the votes of Justices Ginsburg and Rehnquist correlate at 0.42 across all Supreme Court cases but at 0.91 in IP cases, which helps explain why anecdotal observation misled so many IP scholars into thinking their field was non-ideological.
Further Reading
Jeffrey A. Segal & Harold J. Spaeth, The Supreme Court and the Attitudinal Model Revisited (Cambridge University Press 2002) – The definitive statement of the attitudinal model, presenting the evidence that Supreme Court justices decide cases primarily on the basis of their personal policy preferences rather than legal doctrine.
Andrew D. Martin & Kevin M. Quinn, Dynamic Ideal Point Estimation via Markov Chain Monte Carlo for the U.S. Supreme Court, 1953-1999, 10 Political Analysis 134 (2002) – The source of the Martin-Quinn ideology scores used in this study, this paper develops a Bayesian measurement model that allows each justice’s estimated ideal point to change over time.
Barton Beebe, An Empirical Study of the Multifactor Tests for Trademark Infringement, 94 California Law Review 1581 (2006) – An empirical analysis of 331 federal district court opinions applying the multifactor likelihood-of-confusion tests, one of the few prior empirical studies of judicial decision-making in an IP context.