A Call for Strengthening the Role of Comparative Legal Analysis in the United States

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St. John's Law Review


This Essay highlights the importance of comparative legal analysis with particular emphasis on the role that this methodology could play for intellectual property scholarship in the United States. In particular, this Essay suggests that U.S. scholars could consider turning with more frequency to comparative legal analysis as an additional methodology to use in their research. Yet, the objective of this Essay is not to suggest that U.S. scholars should engage in comparative legal analysis in lieu of other types of research methodologies. Instead, this Essay simply supports that comparative legal analysis could play a larger role compared to the one that it currently seems to play amongst U.S. intellectual property academics, and that a larger number of U.S. scholars could turn to comparative legal analysis in some instances in conjunction with other research methodologies while conducting research in intellectual property law. This would allow more scholars in the U.S. to consider the experiences of other jurisdictions as additional examples—positive, negative, relevant, or perhaps ultimately not relevant—while elaborating their research questions in the field of intellectual property and developing the answers to these questions. In this respect, this Essay also advocates that, in order for a larger number of scholars to engage in comparative legal analysis in the area of intellectual property law, the barriers to entry to conduct this analysis should be kept low—that is, scholars should not be required to necessarily conduct research in other languages or spend lengthy periods of time visiting foreign institutions, at least initially. In particular, this Essay disagrees with the position of some comparative law scholars who have supported an increasingly complex set of methodologies and requirements in the field of comparative law, Instead, this Essay supports a simpler approach, one based upon incremental steps, in which any U.S. scholar should feel welcome to conduct—and be praised for conducting—some degree of comparative legal analysis as part of her or his research in the area of intellectual property law.

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