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Private-Law Attorneys General

By Molly Shaffer Van Houweling. Full Text.

The Constitution empowers Congress to “promote the progress of science and useful arts by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries.” The founding-era Congress quickly exercised this power by enacting copyright and patent laws that track the constitutional authorization: they grant authors and inventors exclusive but limited rights that are designed to incentivize investments in the production of works of knowledge (“science”) and technology (“useful arts”) and thereby ultimately to benefit the public.

Copyright and patent owners can thus usefully be understood as “private attorneys general”—a term that has been used since the mid-twentieth century to describe private parties who are authorized to bring lawsuits that serve not merely their own interests, but the broader public interest. These particular instances of the private attorney general mechanism are somewhat unusual in that the private parties are granted exclusive rights that take the form of property rights—which are other- wise considered paradigmatically private rights, not public rights. Nonetheless, in light of the Constitutional purpose of the rights, it is important not to lose sight of their public character. And it is therefore useful to recognize that their owners are acting as what I will call “private-law attorneys general.” This recognition helps us to see how the benefits and risks that have long been associated with the enlistment of private attorneys general to serve public ends apply to intellectual property law (IP).

This Essay has two goals. One is simply to introduce the concept of the “private-law attorney general” in order to identify it as a useful analytical subset of private attorneys general. The second is to deploy some of that analytical utility by exploring the ways in which empowering private attorneys general with property rights—as opposed to other types of causes of action— produces distinctive versions of the benefits and risks that are associated with private attorney general schemes more generally. IP serves as my case study for this exploration.

This Essay proceeds in three parts. Part I describes the established concept of the private attorney general, makes the case that intellectual property rights should be understood as examples of this concept in action, and fleshes out the idea that there is a category usefully understood as private-law attorneys general that includes IP. Part II reviews the benefits and risks commonly associated with the private attorney general mechanism; it then argues that empowering private attorneys general with private property rights (IP rights in particular) poses unique variations on these benefits and risks. Part III suggests how my observations might be relevant to IP doctrine and reform; it includes, in particular, consideration of how developments in standing jurisprudence threaten to exacerbate the risks posed by private-law attorneys general to balanced IP law.