Ideology and Exceptionalism in Intellectual Property: An Empirical Study

Can Supreme Court justices' views on abortion, racial profiling, and medical malpractice predict how they will vote in intellectual property cases? It may be natural to assume that a justice's views on those topics are irrelevant; they are, after all, unrelated legal fields. It is certainly the dominant view among intellectual property (IP) scholars that copyright, patent, and trademark cases hinge on doctrinal rules and policy issues specific to IP. However, legal realists and political scientists have shown that judges are strongly influenced by political ideology and that judges' ideological positions are consistent across diverse issue areas. The question then becomes: is IP the exception to the attitudinalist rule that ideology affects case outcomes? This Article challenges the widely held belief that IP cases are immune from the influence of judicial ideology, a belief we call "IP exceptionalism."