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Legal rules are typically implemented through a combination of public and private mechanisms. Burglars, for example, are deterred from unauthorized entry in part by the threat of jail time and police intervention, and in part by the knowledge that homeowners have guns, security systems, and other private measures by which to defend their property. Similarly, while entrepreneurs obviously use patent, copyright, and trade secret law to protect proprietary information, they also routinely take matters into their own hands by, for example, dividing sensitive information across employees such that no single employee ever knows enough to betray the firm completely. Every area of law can to some degree be characterized in this manner, framed in a way that emphasizes substitutability between public responses and their private alternatives. In this Essay, I examine several specific areas of law (free speech jurisprudence, trade secret law, copyright law, and patent law) from this perspective, using each as a case study from which to cull broader lessons about the proper structure for these public/private partnerships.

At the time patent applications are reviewed, the Patent and Trademark Office has no way of identifying the small number of applications that are likely to end up having real economic significance. Thus patent applications are for the most part treated alike, with every application getting the same--and by necessity sparse--review. In this short magazine piece, we urge in response three basic reforms. First, we would weaken the presumption of validity that today attaches to all issued patents. The modern strong presumption simply does not reflect the reality of patent review; presumptions, in short, should be earned. Second, because legitimate inventors need as much certainty as the law can provide, we would give applicants the option of earning a presumption of validity by paying for a thorough examination of their inventions. Put differently, applicants should be allowed to "gold-plate" their patents by paying for the kind of searching review that would merit a strong presumption of validity. Third and finally, because competitors also have useful information about which patents worry them and which do not, we support instituting a post-grant opposition system, a process by which parties other than the applicant would have the opportunity to request and fund a thorough examination of a recently issued patent. As we explain in the piece, these reforms would together allow the Patent Office to focus its resources on patents that might actually matter, and it would also both reduce the incentive to file patents of questionable validity and reduce the harm caused by such patents in any event.