The Danger of Bootstrap Formalism in Copyright
Alfred Chueh-Chin Yen · bepress Legal Repository · 1998
I am reticent about identifying the "worst" intellectual property case ever.Although there is value in discussing superlatives (even negative ones), I have a general sense that preoccupation with rank ordered lists has become counterproductive.l I will, however, use the space so kindly afforded me by this law journal to discuss West Publishing Company v. Mead Data Central, Inc.,2 a case that exhibits an unfortunate form of legal reasoning that I call "bootstrap formalism."3, Intuitively, "bootstrap formalism" is the expansive reading of a legal claim without adequate doctrinal or policy support.Bootstrap formalism is formalism because it uses the logical implications of legal rules to reach a given result.4 I have added the term • Professor of Law, Boston College Law School.Copyright 1998 by Alfred C. Yen.t Consider two examples that legal academics know only too well-the U.S. News and World Report annual ranking of law schools and the Chicago•Kent Annual Survey of Scholarship.Both rankings offer interesting and valuable information.However, it is only too easy for people who should know better to become overly concerned with how they or their institutions fare by these idiosyncratic measures of quality.2799 F.2d 1219, 230 U.S.P.Q.(BNA) 801 (8th Cir.1986) !hereinafterWest v. Mead).I am not the first writer to write critically about this case.For other analyses, see L. Ray Patterson & Craig Joyce, Monopolizir18 the Law: The Scope of Copyright Protection for Law Reports and Statutory Compilations, 36 UCLA L. REv.719 (1989); James H. Wyman, Comment, Freeing the Law: Case Reporter Copyright and the Universal Citation System, 24 FLA.ST.U. L. REv.217 (1996).3 Bootstrap formalism may well be troubling if used in other areas of the law as well.However, I will restrict my claim made here to copyright law since West II.Mead is a copyright case., For discussions of formalism, see Catharine Pierce Wells, Holmes on Legal Method: The Predictive Theory of Law as an Instance ofScienti{ic Method, 18 S. ILL.U. L. J. 329, 329-30 (1994) (describing Langdellian formalism as based on logical deduction, resting on distinctly legal premises, and finding that proper application of legal reasoning insures a uniquely correct result for every legal case); Richard A. Posner, Legal Formalism, Legal Realism, and the Interpretation of Statutes and the Constitution, 37 CASE W. REs.L. REv.179, 180-81, 184-185 (1987) (defining formalism as "the use of deductive logic to derive the outcome of a case from premises accepted as authoritative" and describing positive economic analysis of law,