Institutional Fracture in Intellectual Property Law: The Supreme Court Versus Congress

By Gregory N. Mandel. Full text here.

This Article presents an original dataset of (1) every intellectual property decision made by the Supreme Court; and (2) every intellectual property statute passed by Congress from 2002 to 2016. Analysis of the data reveals that the Court and Congress have been significantly at odds over intellectual property law during the early twenty-first century. Whereas more than eighty percent of the substantive intellectual property laws that Congress enacted during this time made rights stronger, two-thirds of the Supreme Court’s decisions weakened protection. The data indicates that this divergence arises from conflict concerning substantive patent and trademark law; the branches are in accord on copyright law. Though prior scholarship has examined particular fields of intellectual property law in a single branch, none has uncovered these overall trends.

The results provide new understanding of the ideological, political, and sociological influences that drive decision-making in Congress and the Supreme Court. Special interest group pressures provide the strongest explanation for the congressional action in the dataset, while the Court’s intellectual property jurisprudence appears to more closely track popular preferences. This finding inverts the traditional understanding of these branches’ roles in government. Instead of Congress, the Supreme Court has been the branch that is more responsive to popular will. Reflecting popular preferences, however, is not the same as democratic representation. This analysis delivers original insights into representative majoritarian democracy and the separation of powers between the Court and Congress, insights that spread well beyond intellectual property law.