One of the most enduring themes in American political thought is that competition between states encourages legal innovation. Despite the prominence of this story in the national ideology, there is growing anxiety that state and local governments innovate at a socially suboptimal rate. Academics have recently expressed alarm that the pace of legal experimentation has become "extraordinarily slow," "inefficient," and "less than ideal." Ordinary citizens, too, seem concerned that government has been leeched of imagination and the dynamic spirit of experimentation; both talk radio programs and newspapers remain jammed with complaints about legislative gridlock and do-nothing politicians who cannot, or will not, solve basic problems. Frank Knight, a leading Chicago School economist, succinctly captured the current angst: "The real trouble with [public officials] is not that they are rash, but the opposite .... [T]hey universally show a tendency to 'play safe' and become hopelessly conservative." What can reverse the stagnation?
In this Article, the author argues that granting state and local governments some form of intellectual property protection in the text of their statutes would ignite a socially beneficial upsurge in legal experimentation. The idea is simple. Intellectual property theory posits that innovators take bolder risks and produce better ideas when the law hands them exclusive control over their creations. Pharmaceutical companies, for example, are more likely to invest in costly research if they can prevent rivals from copying and selling the medical advances they engineer. Artists, too, can pour years of work into the development of a new technique, confident that only they will have the right to display, distribute, and adapt any work produced by their risk-taking. This same principle—that exclusive rights induce optimal levels of innovation—should be applied to the legal experiments generated by local legislatures.
Stephen Clowney, Property in Law: Government Rights in Legal Innovations, 72 Ohio St. L.J. 1 (2011).