I recently found myself doing some research at work on the treatment of IP licensing agreements in bankruptcy. For a variety of reasons having mainly to do with historical accidents going back the bad old days of Swift v. Tyson it can matter a great deal in bankruptcy whether or not an IP agreement is treated as a contract or a license. Reading through the cases on the issue, I found myself increasingly frustrated. This distinction, I thought to myself, is really artificial. The whole way of doing this inquiry assumes that there is some essential attribute of contractness or licenseness that lawyers can identify. Contracts and licenses, however, aren't abstract essences. They are human creations that serve our own human purposes. Rather than asking what a particular agreement is we ought simply to ask ourselves what we want to do.
Stepping back from my internal dialog, I was once again struck by the extent to which I find the ghost of Oliver Wendell Holmes, Jr. in my thinking. My frustration, of course, is thoroughly Holmesian, and I no doubt have it because during the first year of law school I had Holmes beaten into my skull, although -- insidiously enough -- his name and thought was never really explicitly placed on the table. Everything was done in the vague guise of teaching me to "think like a lawyer." Ha! I was not taught to think like a lawyer. I was taught to think like a somewhat bitter and cynical Boston Brahman judge who picked up a hatred of abstraction from his dinner buddies in Cambridge. Consider this from the "The Path of the Law":
Behind the logical form lies a judgment as to the relative worth and importance of competing legislative grounds, often an inarticulate and unconscious judgment, it is true, and yet the very root and nerve of the whole proceeding. You can give any conclusion a logical form. You always can imply a condition in a contract. But why do you imply it?
In a letter to a friend, Holmes once remarked that the true glory of a scholar is the hope of a "postponed power" that comes from the fact that generations hence men who have forgotten him will nevertheless continue to think to the cadence of his thoughts. I find it irksome how often I find myself unconsciously dancing to Holmes's cadence.