IP and Critical Theories

For the Handbook on Intellectual Property Research (Calboli and Montagnani, eds.)

Margaret Chon*
Draft 7-24-18

I. Introduction

The heyday of the critical legal studies movement has passed, yet its impact continues to be felt
in many areas of legal scholarship including intellectual property (IP) law, not to mention numerous
disciplines outside of legal studies where it is still very much alive and well. Key concepts incubated
within this school of thought, such as intersectionality and micro-aggression, have migrated into our
everyday political discourse and common vocabulary of describing social relationships of power.
Philosophically, critical theory is indebted to the insights of Continental theory such as Foucault,
Gramsci, Habermas, and Lévi-Strauss (as received and interpreted by US and other North American
scholars), in addition to those philosophers typically associated with the Anglo-American-
Commonwealth legal tradition such as Locke, Mills, Rawls, and Adam Smith.1

This chapter provides a brief outline of the principal goals, tenets, and methods of critical
theory. Describing how this theoretical turn appears in IP scholarship, it then illustrates with non-
exhaustive examples (some of which are written by scholars not necessarily identified with critical legal
studies). These examples expose the under-acknowledged influence of critical theory in scholarship
about IP, including the big three (patent, copyright, and trademark) as well as plant genetic resources
and traditional knowledge. It concludes with a brief speculation about the reason for this lack of credit
as well as the value of future scholarship guided by this approach.

I. Critical Theory: Origins, Goals, Tenets, and Methods

A. Origins

Incubated at various US law schools starting in the late 1970’s, critical methodology is an
intellectual heir to the earlier legal realism movement of the 1920’s and 30’s. Legal realists had engaged
in “rule-skepticism,” declaring that legal decisions were as much the product of non-legal considerations
(such as lawmakers’ biases) as they were the outcome of logical deductions from legal rules.2 This key

*
Donald and Lynda Horowitz Professor for the Pursuit of Justice, Seattle University School of Law. The author
would like to thank Lauren Sewell (class of 2019) for her excellent research support.
1
This chapter presents perspectives from US critical legal studies, relying on English-language texts. The author
acknowledges the robust critical traditions in other jurisdictions, which are not represented in this necessarily
incomplete account.
2
Michael Steven Green, Legal Realism as a Theory of Law, 46 WILLIAM & MARY L. REV. 1915, 1918 (2005) (“law such
as statutes and the like are too indeterminate to be significant influences on, or predictors of, judges’ decisions.
Because the law is indeterminate, judges actually decide cases on the basis of nonlegal considerations.”)

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concept of legal indeterminacy, which became part of the mainstream legal thought by the late 20 th
century,3 is one of the conceptual cornerstones of critical legal studies.4

Early critical legal theorists had a perhaps utopian, distinctly modernist, and certainly idealist
view of their project: “From the beginning the intention has been to understand society as made and
imagined rather than as merely given in a self-generating process that would . . . condemn people
constantly to reenact a drama they were unable to stop or even to understand.” 5 Their view of the social
construction was not wholesale naiveté, however, because these theorists developed it through actual
experiences in challenging the legal status quo. Concerted efforts of public interest lawyers had
contributed to the vast social transformation of the mid-20 th century through the assertion of labor
rights, civil rights, women’s rights, etc. These legal and social advances for relatively disempowered
groups then experienced backlash, retrenchment, and “ferocious right-wing movements determined to
roll them back.”6 This recurring (and disheartening) dynamic illustrated the durability of larger
structures of power and privilege, and it then also led the critical legal theorists (“Crits” as they call
themselves) to a non-trivial understanding: Law is not only indeterminate, as the realists had pointed
out earlier, but it is also non-neutral in its application and effects. The institutional and structural
systems of law are “heavily loaded in favor of the wealthy and powerful.” 7

B. Goals

The early Crits attempted to hold the legal system accountable to its stated principles of equality
and due process, particularly (as stated above) in the wake of various social movements that gained
momentum during the post-World War II period. Their primary goal was to engage in social
transformation through law, based upon a progressive, decentralized, and democratic politics. 8 They
demanded an interpretation of the equality principle in law that was not just formal in nature (i.e., on
the books, promising equal opportunity) but substantive (i.e., in action, delivering material and
demonstrably positive impact on social groups otherwise disproportionately and negatively affected by
inequalities).

This focus on substantive equality rather than formal equality is a significant difference between
critical theory and legal liberalism, discussed more below. The chasm between the two conceptions of
equality is apparent, for example, in the on-going contestation over the equality principle’s meaning and
scope within US constitutional law. Without engaging in doctrinal analysis of the US Constitution’s equal
protection clause, it is sufficient to note here that early civil rights advocates such as the late Professor
Derrick Bell eventually became extremely disillusioned with the formal equality promise of “separate
but equal” announced in the historic Brown v. Board decision,9 which was eventually betrayed by

3
Joseph William Singer, Legal Realism Now, 76 CAL. L. REV. 465, 467 (1988) (“All major current schools of thought
are, in significant ways, products of legal realism. To some extent, we are all realists now.”).
4
Robert W. Gordon, Some Critical Theories of Law and Their Critics, in THE POLITICS OF LAW: A PROGRESSIVE CRITIQUE
641, 655 (David Kairys ed., 3d ed. 1988).
5
Roberto Mangabeira Unger, THE CRITICAL LEGAL STUDIES MOVEMENT 108 (1986).
6
Gordon, supra n. 4, at 644.
7
Id.
8
Unger, supra n. 5, at 23 (“the active power to remake [and] reimagine the structure of social life should enter the
character of everyday existence.”)
9
Derrick A. Bell, Jr., Brown v. Board of Education and the Interest Convergence Dilemma, 93 HARV. L. REV. 518
(1980).

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numerous subsequent decisions and court orders failing to implement this vision in a broader, systemic
fashion.

Importantly, critical theoretical approaches continue to be concerned with recognizing and

addressing power hierarchies within and among social groups without denying the importance of liberty
as a first principle of western constitutional democracies (or the deeper implications of market-based
economies). Yet its insistence on substantive equality is often characterized as being at odds with the
prevailing philosophical and theoretical traditions in the West, in which individual freedoms are often
the privileged units of choice (e.g., the “rational actor” in law and economics). Thus, much critical
theory has been devoted to justifying why group analysis is relevant, as well as to the refining of social
identities and locations,10 and explaining how institutional and structural hierarchies have differential
impact upon diverse groups within these social locations. Perhaps because of this group focus,
descriptions of critical theory often obscure its emphasis on individual agency and self-determination,
goals also essential to its transformational project. More recently, critical theory has extended its
analysis beyond national borders to the relationship of historically subordinated groups to transnational
legal institutions and processes. Various tenets of critical theory, discussed in the next section, reflect
these multiple goals.

C. Tenets

Critical theory is a combination of several inter-related critiques: a critique of liberal legal theory
in general; of its underlying assumption of neutrality; of its continuing embrace of legal formalism; and
of its over-reliance on rights. It views liberal theory as immersed in a fundamental fallacy in which legal,
political, and social structures embody an underlying social contract that accurately and fairly reflects
the interests and needs of all their constituencies, whether expressed through individual choices in the
marketplace or the polling place. Economic, political, and social progress occurs gradually but
inexorably, and requires only tinkering around the edges when social conflicts surface.

By contrast, critical theory posits that the interests of privileged social groups as well as those in
power (not necessarily synonymous) are over-represented in economic, political and social, including
legal, systems. Furthermore, liberal institutions and systems contribute to enduring inequalities, by
minimizing their own structural roles in maintaining the status quo. From a critical theoretical view, any
social changes with real and enduring impacts would require re-imagining the prevailing systems
themselves, so as to reduce rather than to reproduce the inequality affecting less powerful social
groups.

The insistence on systems change could be seen as impractical, given the inherently
conservative nature of legal systems and law itself. At the same time, critical theory would not exist
without some belief (however thin) that law and legal systems contain some of the tools necessary for
structural transformation. One can discern the pragmatic application of this critical awareness by
mainstream legal actors in the various local jurisdictions in the US. For example, some cities like Seattle

10
Iris Marion Young, Five Faces of Oppression, in OPPRESSION, PRIVILEGE, AND RESISTANCE: THEORETICAL PERSPECTIVES ON
RACISM, SEXISM, AND HETEROSEXISM (Lisa Maree Heldke & Peg O'Conor eds., 2004); CRITICAL RACE FEMINISM: A READER
(Adrien Katherine Wing, ed. 2d ed. 2003).

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have adopted wholly new systems of adjudication through diversion programs and the like, in
addressing youth conduct triggering involvement in the criminal legal system. 11

Critical theory also questions liberal legal theory’s assumption of neutrality of laws, in which the
legal system is basically even-handed regardless of the social positions of its participants. The legal
realists had set the table already for the Crits to engage in an extended critique of legal formalism, that
is, the concept that law should be determined within a self-contained, universal, relatively predictable,
and justifiable system of rules. Just as the realists had done before them, the Crits describe the
functioning of law instead as being highly dependent on social context. The Crits then extend this
observation of law’s inherent malleability even further, however, to liberal legal theory’s purported
over-reliance on rights. Under the prevailing liberal legal order, legal rights operate to “legitimize the
social world by representing it as rationally mediated by the rule of law,” 12 whereas from a critical
perspective, rights are easily manipulated in the service of power rather than social progress. However,
the indeterminacy of individual rights could also mean, more optimistically, that their scope could give
way to a higher common purpose. In language that might seem familiar to IP theorists who argue over
the genesis and scope of IP rights today, an early observer of the Crits described: “property rights [as]
invariably relative, not absolute; they must accommodate when their exercise conflicts with the rights of
others (as when my factory pollutes your stream).”13

After the early Crits threw down the initial gauntlet, these fundamental tenets were actively
debated by progressive scholars, and criticized by conservative or liberal ones. By the very mechanisms
that the Crits encouraged, that is “the opportunities and experiences available to different categories of
people to be freely recombined[,]”14 scholars sympathetic to the original critical legal studies framework
eventually extended its original insights about the durability of power relationships between and among
social groups to include a more specific focus on important social categories such as gender and race (as
well as others).15 For example, the strong critique of rights by some original Crits received some push-
back by critical race theorists (“Race-Crits”). The Race-Crits affirm the Crits’ view that rights (like any
other form of law) are indeterminate and often used to impede social change. But many Race-Crits posit
that rights are also symbolically and materially important to those who had historically been denied the
status of rights-holders (such as African Americans prior to the right to vote).16 This double-
consciousness of law’s perils and potentials channels the insights of earlier social theorists such as
W.E.B. DuBois.17

Despite these and other differences, common to all of the critical approaches is the assumption
that law and the legal system can and should achieve much more meaningful and transformative social
progress towards equality by overcoming the limitations of the dominant liberal legal approach. And
shared by these diverse scholars is also an abiding confidence in the capacity of legal actors to re-
imagine current structures so that they are not like proverbial water surrounding fish but rather one of

11
Judge Susan Craighead, Juvenile Detention Evaluation Offers Hope for Solutions, KING COUNTY BAR BULL. 30 (2015).
12
Critical Race Theory reader at xxiii
13
Gordon, supra n. 4, at 652.
14
Unger, supra n. 5, at 26.
15
See, e.g., chapter by Deirdre Keller and Anjali Vats (in this volume).
16
Introduction, in CRITICAL RACE THEORY: THE KEY WRITINGS THAT FORMED THE MOVEMENT xxiii-xxiv (Kimberlé Crenshaw et
al. eds., 1995).
17
W. E. B. DuBois, THE SOULS OF BLACK FOLK (1903).

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many possible and alternative ways of ordering our legal environments. The next section will describe
the importance of reconstructive legal imagination as an aspect of critical methodology.

D. Methods

Most legal actors, including legal scholars, appreciate the on-going need for law reform (if only
to keep pace with rapid changes in the world), but critical legal scholars additionally acknowledge that
law is part of a system of meaning that comprises a set of relatively durable if potentially changing
power relations. While the methods of critical theory are sometimes conflated with a negative program
of critique (and critique only) as described above, a full realization of critical theory is comprised of
several steps: recognition and deconstruction, followed by reconstruction. From a critical standpoint,
therefore, a key methodological insight is that truly meaningful law reform often requires addressing the
system itself, not simply adjusting the rules of the game. Race-Crits, for example, understand race as a
social construction—that is, race is not a tangible “thing” but rather a concept or an idea that is
reinforced through myriad social processes, including legal processes.18 In the IP arena, one might
analogously view patents as a social construction with nonetheless very real impacts. As some non-Crit
legal scholars have pointed out, for example, its social and legal meanings have shifted over time, most
recently from incentive to commodification to investment.19 Recognizing the constructed quality or
sociality of seemingly stable shared social concepts then frees up space for re-thinking existing social
and legal arrangements, rather than accepting the politics of the possible.

A related stage, which could be described as pulling back the curtain (or revealing Oz), is often
referred to as deconstruction. This involves engaging the tools of intellectual inquiry to expose belief
structures, with the purpose of identifying what has been foregrounded (and, conversely, what has been
suppressed) in legal discourse and meaning.20 An important part of this process is being aware of one’s
own social location and how it is impacted by the overall structures of power.21 Deconstruction has
been defined as an “intellectual approach that targets traditional interpretations of terms, concepts, and
practices, showing that they contain unsuspected meanings or internal contradictions.” 22 An example of
deconstruction, written early in his career by an IP scholar, is Jamie Boyle’s The Anatomy of a Torts
Class.23 Self-consciously modeled on Duncan Kennedy’s classic Crit piece, Form and Substance in Private
Law Adjudication,24 Boyle’s law review article elucidates the critical method of deconstructing seemingly
contradictory policy arguments in a 1L class.

The final step in this method is that of reconstruction or re-imagination. A full embodiment of
critical methods will “describe[] how the alternative historical or currently functioning leeways and
opportunities in the legal system might be strategically exploited and extended and generalized in the

18
Omi & Winant, RACIAL FORMATION IN THE UNITED STATES: FROM THE 1960S TO THE 1990S 55 (1994) (defining racial
formation as “the sociohistorical process by which racial categories are created, inhabited, transformed, and
destroyed.”).
19
Rochelle Cooper Dreyfuss & Susy Frankel, From Incentive to Commodity to Asset: How International Law is
Reconceptualizing Intellectual Property, 36 MICH. J. OF INT’L L. (2015).
20
Gordon, supra n. 4, at 650.
21
Mari Matsuda, WHERE IS YOUR BODY? AND OTHER ESSAYS ON RACE, GENDER, AND THE LAW (1997).
22
Richard Delgado & Jean Stefancic, CRITICAL RACE THEORY: AN INTRODUCTION 171-72 (3d ed. 2017).
23
James Boyle, The Anatomy of a Torts Class, 34 AM. U. L. REV. 1003 (1985). Indeed, the original Crits critiqued they
dynamics of the law school classroom under the guise of training students to “think like a lawyer.”
24
Duncan Kennedy, Form and Substance in Private Law Adjudication, 89 Harv. L. Rev. 1885 (1976).

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service of a progressive politics.”25 A critical approach requires a refashioning not just of legal rules, but
also of the institutions and structures in which those laws operate. And it is important to reiterate that
this method is not in the service of liberal incremental, illiberal, or conservative politics, but is an
audacious yet hopefully impactful extension of the Crits’ stated commitment to a more equal and
hopefully more just legal order.

II. Examples

Summarized above is the strongest version of critical methodology, as practiced by self-

professed Crits. Before delving into specific examples in IP scholarship, a threshold question needs to be
asked: Does intent matter? That is, does one have to be a Crit to engage in critical methodology? For
purposes of this chapter, this question is answered in the negative. Regardless of any individual’s
proclaimed intellectual commitments, critical legal theory has had strong influence, however
unrecognized, on liberal legal thought in IP and the boundary between legal and critical approaches to IP
is blurrier than many scholars might realize. What follows are some illustrations of this blurring
phenomenon in different areas of IP. Many of the works described below fall into more than one
category of IP but for purposes of taxonomic simplicity, they will be discussed with reference to one
area only.

A. Patent

An exemplar of scholarship deeply inflected if not guided by critical theory is Peter Drahos and
John Braithwaite’s INFORMATION FEUDALISM: WHO OWNS THE KNOWLEDGE ECONOMY?26 This volume about
global IP, focusing primarily on patent law, demonstrates many of the hallmarks of critical methodology.
At the same time, the authors explicitly based it upon a previous work positioned squarely within the
liberal legal tradition. Observations gleaned from that earlier empirical project, G LOBAL BUSINESS
REGULATION27 was based on interviews with corporate informants to shed light into the many informal
negotiations and unwritten agreements that shape the global economy. What then led to I NFORMATION
FEUDALISM was the recognition that the data also showed “that big business sovereignty over the
regulatory standard-setting process often result in the regulation of markets, whereas citizens would
benefit more from deregulated, competitive markets.”28

This insight about asymmetrical power between corporations and consumers then led to the
deconstruction of seemingly neutral rules of the game in international negotiations, where US-based
pharmaceutical manufacturers took advantage of their superior knowledge of the rules to set IP
standards favorable to them and harmful to consumers. Drahos and Braithwaite then suggest ways to
democratize IP legal systems.29 Their suggestions are aimed at both the level of structural change rather
and incremental rule reform, for example, by rethinking the discourse of piracy, patent office regulation,
and treaty negotiations in ways that allow developing countries to represent their interests more fully.
Importantly, this piece illustrates that critical methodology can be hybridized with other approaches and
methods, in this case, empirical social science and liberal legal theory.

25
Gordon, supra n. 4, at 653
26
Peter Drahos with John Braithwaite, I NFORMATION FEUDALISM: WHO OWNS THE KNOWLEDGE ECONOMY? (2002).
27
John Braithwaite & Peter Drahos, GLOBAL BUSINESS REGULATION (2000).
28
Drahos with Braithwaite, supra n. 26, at ix.
29
Id. at 198-209 (“Resisting the New Inequality”)

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 Recognition of systematic inequality and injustice within the global IP system also motivated
Amy Kapczynski in The Access to Knowledge Mobilization and the New Politics of Intellectual Property.30
Kapczynski’s perspectives in this piece are undoubtedly shaped by her preceding advocacy on behalf of
impoverished communities in Africa.31 While many of her later works also address the topic of access to
medicines, this article unquestionably draws on the critical tradition by relying “upon ‘frame
mobilization’ literature, which illuminates the role that acts of interpretation play in instigating,
promoting, and legitimating collective action.”32 It is imbued with a complex awareness of the limits (as
well as potential fluidity) of social systems, and proposes a radical revisioning of the same. As she writes:

a caveat: to say that law may be central to the creation of publics and polities is not to suggest that
law provides an even playing field, or that the publics and polities it helps to create are not affected
by forms of historical privilege and disadvantage. The concept of the public sphere sometimes
carries such implications, but it need not. Other questions also remain about the exact nature of the
commonalities and disagreements that can be built across borders through engagement with
international law and legal institutions. Under what conditions might such communities emerge? 33
Both of these works clearly proceed from recognition to deconstruction and reconstruction.
B. Copyright

Scholars working from disciplines such as media studies, political science, and sociology may
more openly embrace critical methodology, given their different professional constraints and training
from legal scholars. A recent example is Debora Halbert’s STATE OF COPYRIGHT: THE COMPLEX RELATIONSHIPS
OF CULTURAL CREATION IN A GLOBALIZED WORLD.34 Befitting a political scientist, she convincingly
demonstrates the contingency of legal rules and systems through many examples of political capture
that shape IP rules in ways that harm creativity. Her extraordinary analysis of discourses of piracy,
national security, and terrorism deployed by state actors to consolidate the positions of powerful
market actors is followed by scenarios of alternative futures of creativity if certain transformative
conditions are realized.

Published during the height of the so-called “copyright wars,” which broke out in the wake of
then-emerging digital network technologies, Jessica Litman’s book D IGITAL COPYRIGHT35 provides another
example of a work written from a liberal legal lens while heavily imbued with critical methodology. A
foundational text in what could be termed critical information law, Litman describes entrenched political
power dynamics within legal systems (many of the same ones that Halbert also documents in detail) and
issues a clarion call to foreground the public’s interest in informational freedom. One brief chapter,
called “A Thought Experiment,”36 asks the reader to assume the vantage point of a copyright lawyer for

30
Amy Kapczynski, The Access to Knowledge Mobilization and the New Politics of Intellectual Property, 117 YALE L. J.
804 (2008).
31
Daryl Lindsay, Amy and Goliath, SALON, May 1, 2001, https://www.salon.com/2001/05/01/aids_8/.
32
Kapczynski, supra n. 30.
33
Id. at 881-82.
34
Debora Halbert, STATE OF COPYRIGHT: THE COMPLEX RELATIONSHIPS OF CULTURAL CREATION IN A GLOBALIZED WORLD (2014);
see also Matthew David, SHARING: CRIME AGAINST CAPITALISM (2017); and Sara Bannerman, INTERNATIONAL COPYRIGHT
AND ACCESS TO KNOWLEDGE (2016).
35
Jessica Litman, DIGITAL COPYRIGHT (2006).
36
Id. at 70-76.

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the public and to decide whether to sign onto the 1976 Copyright Act. It is a playful and yet highly
serious way of making the reader aware that the current legal framework is not optimized for the public
interest. The inherently disruptive nature of emerging information and communications technologies
provides potential opportunities to move the needle closer to the realization of democratic norms such
as equality and freedom. Indeed, the early days of the Internet were heady with predictions of its
heavily democratizing impact. Yet Litman and others could foresee that this disruptive potential would
be squandered without a frank recognition of who was making the applicable rules and for what
purpose.

C. Trademark

Like many of the scholars above, Rosemary Coombe examines multiple areas of IP, including
copyright, trademark, right of publicity, and traditional knowledge. Her sociolegal approaches to IP are
grounded not only in cultural anthropology but also critical communication and media studies, post-
colonial theory, as well as law heavily inflected by critical methodology. The complex and layered
quality of her work reflects this interdisciplinary approach. In T HE CULTURAL LIFE OF INTELLECTUAL
PROPERTIES, AUTHORSHIP, APPROPRIATION, AND THE LAW,37 Coombe discusses the historical uses of racialized
trademarks to consolidate a white national identity in the US in the late 19 th century,. This has had many
consequences, for example, making “mythic and imaginary images of Native Americans more visible
than they are as living peoples with contemporary concerns and pressing political problems.” 38 The
multiple ways in which communication and meaning are shaped in the public square are quite the
opposite, then, of liberal legalism’s assumption of equal freedom to participate in a “marketplace of
ideas.” Coombe’s critical insights illuminate the multiple and often conflicting dynamics that are easily
overlooked by the “marketplace of ideas” metaphor, a liberal simplification vividly reinforced in the
recent Matal v. Tam decision regarding racially disparaging trademarks.39

Coombe’s deconstructive analysis is so highly nuanced that one could overlook her equally
important advocacy of “dialogic democracy”. She asserts that

our theories and practices of democratic politics are no longer congruent with our theories and
practices of communication. . . . . Social theory . . . suggests that contemporary identity politics are
forged within ‘the institutions of mass-cultural dissemination [which] are seen as providing and
structuring the cultural field on which [] fragmented and diverse identities are formed and
reformed’ . . . .
A dialogic theory of human social life provides a means to reconceptualize and reorient the law of
free speech or freedom of expression so that it focuses more on the conditions of interaction than
on the interacting individuals—freedom not as a lack of all constraints but as the ability to
participate in engaged conversations. . . . It is , however, necessary to avoid a position of left
romanticism that views all forms of local cultural expression as resistance.” 40
Her full broadside incorporates fundamental critical insights, particularly that communication asserted
through media channels (like other systems) is loaded in favor of hegemonic interests. Alternative

37
Rosemary Coombe, THE CULTURAL LIFE OF INTELLECTUAL PROPERTIES, AUTHORSHIP, APPROPRIATION, AND THE LAW (1998).
38
Id. at 189.
39
Matal v. Tam, 137 S.Ct. 1744 (2017).
40
Coombe, supra n. 37, at 264-66, 271.

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approaches include locating the politics of the public sphere, unveiling the ownership of privatized
systems of communication, and – with regard to law—interrupting the assumption of complete
fungibility of “authorship” or “trademark owner.” In short, Coombe proposes facilitating “appropriate
access to the symbolic means of communication, the cultural conditions for conversation” 41 by paying
attention to differential access to democratic dialogue. Much of what Coombe discerned twenty years
ago is currently amplified by the extreme pervasiveness of social media, such as FaceBook, Twitter, etc.,
and her observations then are even more urgent today.

Some of my recent work similarly focuses on challenging the dominant overly-simplistic view of
the function of trademarks as primarily about market signaling. But while Coombe exhaustively
discusses trademark’s multiple cultural functions in conveying racialized meanings, I focus mostly on its
trust function, that is, its ability to convey meanings related to sourcing of components that support
sustainable and fair trade in globalized markets.42 This work is informed by the turn in international
relations and international law scholarship towards recognizing global or transnational governance—
described as a recent evolution in transnational law-making in which private actors participate
substantially in shaping regulatory norms of global markets.43 International relations scholars frankly
assess geo-political power asymmetry among state actors as a core part of their disciplinary toolkit, and
thus assume that more powerful private actors will tend to dominate these private standard-setting
activities. In that sense, they are natural “Crits” regarding the first step (recognition) but do not
necessarily engage in the steps of deconstruction and reconstruction. My scholarly interventions could
be characterized as a pragmatic critical approach into this space. For example, I analyze the enormous
information asymmetries endemic within the dominant market signal paradigm of trademark law. In
response, I propose a “tracermark”—a hybrid innovation comprised of qualities of both trademarks and
certification marks. This re-imagined mark would leverage pervasive digital networks and devices such
as smart phones to redress the relative lack of consumer and producer power in the social construction
of a brand supported by trademark law. Because it is written with an eyes wide open stance toward the
limits of global governance, but works within its framework, this work could be characterized as a hybrid
of liberal legal theory with insights informed by critical theory.44

D. Plant Genetic Resources and Traditional Knowledge

Outside of the “big three” areas of IP are outliers such the regulation of plant genetic resources
(PGRs) and traditional knowledge (TK). The late Keith Aoki’s preoccupation with PGRs 45 illustrates a

41
Id. at 296.
42
Margaret Chon, Marks of Rectitude, 77 FORDHAM L. REV. 2311 (2009); Margaret Chon, Slow Logo: Brand Citizenship
in Global Value Networks, 47 U.C. DAVIS L. REV. 935 (2014); Margaret Chon, Tracermarks: A Proposed Information
Intervention, 53 HOUS. L. REV. 421 (2015); Margaret Chon, Trademark Goodwill as a Public Good: Brands and
Innovations in Corporate Social Responsibility, 21 LEWIS AND CLARK L. REV. 277 (2017).
43
These transnational legal orders or various forms of legal pluralism are characterized by “informal arrangements
developed by ad hoc coalitions of powerful states and transnational governance networks [which] give rise to a
new informality in governance.” A. Claire Cutler, Legal Pluralism as the “Common Sense” of Transnational
Capitalism, 3 OÑATI SOCIO-LEGAL SERIES 719, 725 (2013).
44
See also Margaret Chon, Intellectual Property Equality, 9 SEATTLE J. FOR SOC. JUST. (2010); and Margaret Chon,
Intellectual Property From Below: Copyright and Capability for Education, 40 UC DAVIS L. REV. 803 (2007).
45
Keith Aoki, SEED WARS: CONTROVERSIES AND CASES ON PLANT GENETIC RESOURCES AND INTELLECTUAL PROPERTY (2008).

Electronic copy available at: https://ssrn.com/abstract=3219966

critical approach to this IP domain. In Food Forethought, his last published article,46 he addressed
various questions concerning the relationship of IP to intergenerational equity. For example, he
discussed the justice-based case for recognition of the contribution of past farmers to the world’s
current supply of PGRs and knowledge about PGRs; noted the decisive shift from public to private
agricultural applied research, as well as the impact of private standard setting on access to food
markets. These and other recognition steps were a prelude to his proposed centerpiece for an
alternative future: what he and others called “Bio-Linux.” He envisioned this type of governance model
for PGRs as comprised of an international movement of farmers who could employ a “commons-based
peer production network [to] facilitate[] the sharing of plant genetic information and biotechnological
tools.”

As envisioned by Aoki, Bio-Linux would be a type of private ordering for progressive purposes,
an open source license for PGRs, modeled along the lines of open source software. Like its software
counterpart Linux, Bio-Linux is a licensing method, using the exclusive rights generated by public laws in
the form of IP as a platform for generating open access through private contract. It turns the “property”
aspect of intellectual “property” inside out: permission to build upon the original creation is conditioned
upon agreement to license any subsequent creation to others upon the same open access conditions to
which the original licensee is subject. This might counter the suffocating effect of patent lock-ups in
agricultural biotechnology, empower farmers as both users and developers of such technology,
encourage the development of local plant varieties adapted to specific climate and other conditions,
preserve genetic diversity, and spread risks among farmers. But Aoki was also aware of possible
limitations to this alternative approach to PGRs. He meticulously and repeatedly documented the
barriers posed by corporate ownership as well as sovereign control over PGRs, which he argued unduly
influence all attempts to address food security and poverty reduction through agricultural means.

Boatema Boateng’s THAT COPYRIGHT THING DOES NOT WORK HERE: ADINKRA AND KENTE CLOTH AND
INTELLECTUAL PROPERTY IN GHANA47 analyzes the space of IP in cloth production by women in Ghana. Her
work informs us about the conditions faced by those on the ground who are engaged in creative
activities and yet not controlling them or profiting by them.48 More inclusive views of IP regulation
would value parallel methods of incentivizing, transmitting, and/or protecting traditional knowledge (TK)
as central to IP rather than as negative spaces of IP.49 Boateng’s argument of course is not that IP should
engage in a colonizing move by which the dominant power relations embedded with IP are applied to all
intangible knowledge production and distribution, including but not limited to TK or other non-
commercialized forms of knowledge. Rather, her work demonstrates the value of exploring social
systems around knowledge production, whether or not recognized by formal IP legal systems. In the

46
Keith Aoki, Food Forethought: Intergenerational Equity and Global Food Supply—Past, Present, and Future, 2011
WISC. L. REV. 399 (2011)
47
Boatema Boateng, THAT COPYRIGHT THING DOES NOT WORK HERE: ADINKRA AND KENTE CLOTH AND INTELLECTUAL
PROPERTY IN GHANA (2011).
48
This approach could be viewed as a branch of spatial global legal pluralism, which pays more attention to “three
critical domains of sociolegal analysis: the relations of power among legal actors and legal regimes, processes of
meaningmaking and legal consciousness, and the impact of various structures of social relationships on formal
relationships or informal social processes such as shaming and social pressure . . . .". Sally Engle Merry,
International Law and Sociolegal Scholarship: Toward a Spatial Global Legal Pluralism, 41 STUD. L. POL. & SOC’Y 149,
151 (2008)
49
Elizabeth L. Rosenblatt, A Theory of IP’s Negative Space, 34 Colum. J.L. & Arts 317 (2011).

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Electronic copy available at: https://ssrn.com/abstract=3219966

absence of international agreement and harmonization about TK, and through legal flexibilities and local
policy space, decentralized norm creation may help to construct more inclusive, empowering, and equal
TK systems: for example, through local protocols of indigenous groups proposed by Jane Anderson. 50

III. Conclusion

This chapter briefly describes fundamental aspects of critical method and how this methodological
approach shows up in IP scholarship. Numerous other IP scholars also engage in critical method,51 yet
the small sample discussed here amply demonstrates that critical theory’s impact on IP scholarship is
greater than typically acknowledged. There are several plausible reasons for this. The basic model of US
legal scholarship includes first evaluating existing doctrine and then ending with a normative ‘policy’
proposal. When legal scholars cross the line from focusing less on legal rules and doctrine alone, and
more on structural analysis, they take a step closer to critical method. As they perform this structural
analysis with attention to power disparities, they step even closer. And when they propose alternatives
that involve systemic changes that shift the balance of power to those who have had less, then they
complete the critical methodological trifecta of recognition, deconstruction, and reconstruction. Yet
often scholars seem unaware of their own movement over the conceptual divide between liberal
legalism and critical theory’s more urgently normative approaches. Perhaps scholars performing critical
theoretical work do not want to give others the “radical” excuse to reject their normative proposals. Or
perhaps just as we’re all supposedly realists now,52 many of us are also Crits now.53

In any event, the early Crits seem prescient in understanding the enduring quality of structural
inequality. Critical insights are urgently relevant in this second Gilded Age, the era of the so-called
Fourth Industrial Revolution and the inexorable extension of globalized markets. In these current
conditions, core democratic values are undermined by incomplete and overly-sanguine theories of
communication, information, knowledge, markets, marketing, and media – all central sites of regulation
by IP law. Critical theory may help us recover from these deficits of imagination and therefore action.

50
Jane Anderson, Options for the Future Protection of GRTKTCES: The Traditional Knowledge License and Labels
Initiative, 4 J. OF THE WORLD INTELL. PROP. ORG. 73 (2011).
51
Among those US legal scholars whose IP scholarship also provides robust examples of critical method are James
Boyle, Anupam Chander, Peter Jaszi, Sonya Katyal, Madhavi Sunder, John Tehranian, and Rebecca Tushnet, and
others.
52
Singer, supra n. 3.
53
Sonia Katyal, Peter Goodrich, and Rebecca L. Tushnet, Critical Legal Studies in Intellectual Property and
Information Law Scholarship (Symposium), 31 Cardozo Arts & Ent. L. J. 601, 601-02 (2013) (“critical legal studies in
various senses has been immortalized, or at least that despite its anathematization in the US legal academy, it has .
. . come back but in different bodies of substantive analysis and in subtly distinctive guises.”).

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Electronic copy available at: https://ssrn.com/abstract=3219966