Decentralizing the lawmaking function: Private lawmaking markets and intellectual property rights in law

In a series of articles and a book published shortly before his death, Professor Larry Ribstein argued for decentralizing the lawmaking function, enabling private parties to make law, and harnessing the market as a force for legal innovation. As part of this project, Professor Ribstein, along with Professor Bruce Kobayashi, called for broader intellectual property (IP) rights in legal creations. Their argument relies on the conventional quasi-public goods rationale for IP rights. Innovators have suboptimal incentives to create new law in the absence of property rights because competitors can free ride on their creations. As a result, without IP rights, privately-made law would be created, as it is today, mostly as a byproduct of other activities such as litigation or political rent-seeking. And byproduct lawmaking is likely to produce suboptimal law. Broader IP rights solve the free rider problem and thus make possible a vigorous private lawmaking market.