The paper, with Kobayashi, is Law As A Byproduct: Theories Of Private Law Production. Here’s the abstract:
Public lawmakers lack incentives to engage in a socially optimal amount of legal innovation. Private lawmaking is a potential solution to this problem. However, private lawmaking faces a dilemma: In order to be effective privately produced laws need to be publicly enacted, but under current law enactment eliminates the intellectual property rights that are essential to motivate private lawmakers. Because of this dilemma, much private lawmaking is done as a byproduct of other activities. The mixed incentives entailed in this “byproduct” approach make it a second-best response to the problems of public lawmaking. Potential solutions involve finding a better balance between public access and private rights.
The paper treats the creation of law as a form of intellectual property. The central problem the paper identifies is the weakness of intellectual property protection of law. This forces private lawmaking into the second-best world of “byproduct” lawmaking, where private lawmaking is essentially a form of lobbying. This particularly includes the practicing bar’s significant role in lawmaking, and uniform laws. The paper draws illustrations of byproduct laws from the development of the limited liability company, including the “L3C” spinoff. We conclude with suggestions of how to fix intellectual property law to bring private lawmaking closer to a first-best world.
This paper is a natural outgrowth of several strands of my work alone and with others, including on LLCs and uncorporations, jurisdictional competition, lawyers as lawmakers, uniform laws, the “information revolution’s” effect on the law industry, and law teaching.