What Causes Polarization on IP Policy?

Abstract

Polarization on contentious policy issues is a problem of national concern for both hot-button cultural issues such as climate change and gun control and for issues of interest to more specialized constituencies. Cultural debates have become so contentious that in many cases people are unable to agree even on the underlying facts needed to resolve these issues. Here, we tackle this problem in the context of intellectual property (“IP”) law. Despite an explosion in the quantity and quality of empirical evidence about the IP system, IP policy debates have become increasingly polarized. This disagreement about existing evidence concerning the effects of the IP system hinders democratic deliberation and stymies progress. Based on a survey of U.S. IP practitioners, this Article investigates the source of polarization on IP issues, with the goal of understanding how to better enable evidence-based IP policymaking. We hypothesized that, contrary to intuition, more evidence on the effects of IP law would not resolve IP disputes but would instead exacerbate them. Specifically, IP polarization might stem from “cultural cognition,” a form of motivated reasoning in which people form factual beliefs that conform to their cultural predispositions and interpret new evidence in light of those beliefs. The cultural cognition framework has helped explain polarization over other issues of national concern, but it has never been tested in a private-law context. Our survey results provide support for the influence of cultural cognition, as respondents with a relatively hierarchical or individualistic worldview are more likely to believe strong patent protection is necessary to spur innovation. Additionally, having a hierarchical or individualistic worldview and also viewing patent rights as property rights may be a better predictor of patent strength preferences than either alone. Taken together, our findings suggest that individuals’ cultural preferences affect how they understand new information about the IP system. We discuss the implications of these results for fostering evidence-based IP policymaking, as well as for addressing polarization more broadly. For example, we suggest that empirical legal studies borrow from medical research by initiating a practice of advance registration of new projects — in which the planned methodology is publicly disclosed before data are gathered — to promote broader acceptance of the results.