Against AB-418 (California, 2023): Taste The Rainbow

In February, the California legislature introduced Assembly Bill No. 418 (AB-418), legislation that seeks to expand the state Health and Safety Code. The amendment would ban the sale and production of edible goods containing Brominated vegetable oil, Potassium bromate, Propylparaben, Red dye 3, and Titanium dioxide; by January 2025.

This bill has gained national attention for prohibiting one of the constituents (Titanium Dioxide) in the popular candy, Skittles. Mars’s use of the ingredient sparked controversy last year. In Thames v. Mars, Inc, the U.S. District Court of Northern California dismissed the complaint. Mars claimed they would stop using Titanium Dioxide in their Skittles candies in 2016. The proposed consumer protection measure is likely a response to candy manufacturers not following through on their publicized commitment.

AB-418, like all consumer protection legislation, is well-intentioned but misguided. Prohibiting certain chemicals in food products is unnecessary when market mechanisms can guide producers accordingly. If consumers are concerned about the hazards of ingesting compounds targeted in the bill, they will choose not to purchase these products. In turn, companies like Mars will respond accordingly to market pressures.

Consumer Sovereignty Can Lead the Way

Consumer Sovereignty is the concept that “…consumer preferences determine the production of goods and services..”; any competitive firm will be responsive to the needs and wants of its customers. If candy consumers are truly troubled by Skittles containing Titanium Dioxide, they will stop purchasing Skittles (other brands impacted by AB-418). Mars will then respond to the dip in sales by accommodating the preferences of their customer base by removing this substance from their products. If consumers are still buying Skittles, we can assume that they are not bothered by the fact, Skittles contains this chemical. Therefore, the implementation of a law banning this ingredient is unnecessary.

But beyond such a law is unnecessary, it also infringes upon the right to choose. An individual should be able to purchase and eat any variety of candy they so wish, even if it is injurious to their health. California’s prospective law could ruin the skittles recipe and impact the flavor. Why should companies manufacturing processed foods be forced to meet such requirements if most consumers are indifferent to these health concerns?

Product Differentiation Can Voluntarily Steer Consumers 

Product differentiation is where a firm highlights the attributes of its products or services that set them apart from its competitors. Mars’s failure to fulfill its 2016 commitment is not a reason for more regulation; but a golden opportunity for competing companies to acquire more business. Competitors can either emphasize in their branding that they do not use Titanium Dioxide or voluntarily reformulate their products. Firms placing such a focus on product quality will provide a signal to health-conscious customers; such tactics can persuade candy consumers to switch brands.

The process of product differentiation can also present an opportunity for mainstream candy companies to create multitiered product lines. They may have products containing the same artificial ingredients that compose the Skittles recipe but also offer an ultra-premium line of candies made with more natural ingredients. Such an offering accommodates concerned customers by providing a “healthier” alternative to the original mass-market product, creating a niche market for consumers willing to pay more for quality.  

Government Intervention Will Only Lead to Moral Hazard

The state of California banning specific food additives will give the producers and consumers the impression that the ultimate responsibility of ensuring safety will be on the government. This perception can create perverse incentives for firms and customers alike. 

This situation will generate what is known as a moral hazard. Moral hazard is the phenomenon where “..people tend to take more risks when they do not bear the full potential negative consequence..”. Since the government took full responsibility for determining what substances are safe to consume in food products, both parties are willing to take more risks.   Producers will be little incentive to provide above-average safety quality with their edible products because California will be the ultimate authority making this determination. Because government safety standards only provide minimum standards, they will only meet the bare minimum. Firms may hold higher safety and cleanliness standards when subject to profits guided by consumer preferences. Why? Because companies may want to increase customer loyalty by aiming to exceed their current food safety expectations. In contrast, the minimum mandated criteria imposed by California, firms will have no reason to adopt more stringent standards because there is no profit incentive to exceed government standards. Consumers will credulously accept the lackluster effort on the part of candy producers simply because they have the government seal of approval. 

The government prohibiting certain food additives also generates moral hazards for consumers. If the government parentally informs you what substances are safe through legal restrictions, why do you need to do any additional research? Many people believe that products are wholesome because they are legal. But do local, state, and federal government base these determinations on sound medical research? Not always. Health and safety legislation, like other policies, can be subject to the influence of various interest groups hoping to shape regulations to their advantage (regulatory capture). One analogous example is the labeling requirements for genetically modified food because these mandates have little scientific justification. Yet, these requirements continue to be aggressively supported by coalitions that stand to gain from this regulation.

Bootleggers & Baptists LXVII- California Banning Skittles (Taste the Rainbow)

The case Thames v. Mars, Inc (2022) filed in the district court of Northern California, brought to light safety concerns regarding the ingredients of the popular candy, Skittles. Thames alleged that the fruit-flavored candies contained “..contain titanium dioxide (‘TiO2’), a known toxin..” which Mars claimed they would phase out of using in their products back in 2016. The plaintiff listed several California consumer protection measures justifying their suit against the candy maker. But in the end, the plaintiff voluntarily dismissed his claim against the company.

However, the concerns of Thames have not been ignored by the state of California. As the state legislature proposes AB-418 (2023-2024), which seeks to amend “SECTION 1. Chapter 17 (commencing with Section 109025) is added to Part 3 of Division 104 of the Health and Safety Code, CHAPTER 

17. Food Safety to ban the use of Titanium dioxide in food products by January 2025. But keeping the Bootlegger and Baptists (1983), who benefits from banning Titanium dioxide as an ingredient of edible merchandise?

The company under fire (Mars) is the true beneficiary of the soon-to-be California law. Why? A company like Mars (arguably the largest candy company in the world) has the resources to accommodate the regulatory requirements imposed by California lawmakers. Mars can (at little cost to their profits) substitute Titanium dioxide for a legal ingredient. But smaller candy producers may not be flexible and will go out of business due to these new requirements. Therefore, Mars a silent Bootlegger in this scenario.

Bootleggers & Baptists: LXV- Randy McNally, TN LGBTQ Laws, & Political Optics

Trafalgar Square – gay rights protest by Chris Allen is licensed under CC-BY-SA 2.0

The current controversy surrounding Tennessee Lt. governor Randall McNally is a boon to the Left-wingers in this political climate amid America’s “Culture War”. He has tacitly supported several laws that the Human Rights Campaign believes targets the LGBTQ+ community [1]. Notably, SB0003 (2023) which places restrictions on drag performances, has been a hotly debated topic on editorial pages coast to coast. Why has McNally’s stance on Anti-LGBTQ+ legislation recently come under fire? McNally has recently interacted with a gay social media figure liking several sexually provocative posts, creating a gap between his political positions and his personal opinions. The TN Lt. Governor has expressed; that his replies were misinterpreted and did repudiate the perception that he was anti-LGBTQ, but never stated that he wasn’t a homosexual [2].

In the context of Bruce Yandle’s Bootleggers and Baptists (1983) framework, who benefits from these laws regulating sexuality and gender? We don’t need to look too far to see who the Baptists are, clearly the Conservative (most likely religious) lawmakers, because they are enacting these laws in the name of morality and the wellbeing of the youth. McNally himself is probably the most salient beneficiary of these laws. Why? Since he either sympathizes with the LGBTQ community or is a closeted member, he can easily refute any association with this enclave of sexual minorities within the state by pointing (free-riding) to the laws he implicitly endorsed. The optics of McNally not appearing to be openly pro-LGBTQ is imperative in a staunchly conservative state like Tennessee. If his open support is off-putting to state voters, he might as well kiss his cushy seat in the state house goodbye.  


  1. This essay is merely an application of Bruce Yandle’s coalition model and is not a commentary on Tennessee state laws, McNally, or the LGBTQ+ community.
  2. Interesting observation, but speculating about the nature of McNally’s sexual orientation is slightly outside the bounds of my analysis. 

Bootleggers & Baptists- LXIV- Section 230 & Gonzales v. Google (2023)

The debate on reforming  Section 230 of the Communication Decency Act (1996) is one of the few issues in US public policy that has bipartisan support. Both parties have different objectives for abolishing or amending the law. Conservatives want social media platforms to be regulated as common carriers, to avoid the “censorship” of conservative users[1]. There may be some veracity to the claim of social media bias towards conservatives, since 35 % (the highest percentage of any other ideology polled) of participants identifying as “strong conservatives”, in a survey conducted by researchers at the Cato Institute, have experience having content penalized by social media companies. On the other hand, liberals challenge the status quo of Section 230 on grounds that social media firms are not sufficiently blocking the dissemination of misinformation. Despite their conflicting interests in reforming the law, both parties form an “odd bedfellow” coalition for Section 230 reforming. Making the bipartisan zeal for change an example of a Bootleggers and Baptists (1983) coalition.

What is Section 230

Many readers may be wondering what Section 230 is. Section 230 was the 1996 amendment to the Telecommunications act which has been dubbed by the media as the “.. 26 words that created the internet..”. These twenty-six words state:

“…(c) PROTECTION FOR GOOD SAMARITAN’ BLOCKING AND SCREENING OF OFFENSIVE MATERIAL- (1) TREATMENT OF PUBLISHER OR SPEAKER- No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider…” (p.101).

This section of the law insulates platforms from being liable for the content created by users. Effectively, there is a certain degree of rent-seeking implied; by this immunity, this privileged separation between the platform and the user is the proverbial glue that holds the internet together. Message boards, social media platforms, pornography, video-sharing websites (YouTube), and even blog-hosting websites would not exist without 230. These protections provide platforms with the incentive to be more permissive with what they allow users to post. If users find the content moderation from current social media applications restrictive, a world with this section nullified would be even worse. Freely allowing users to post any content they wish; would be a costly risk.


Gonzales v. Google (2023)

The public debate over Section 230 is now coming to fruition in the form of two twins (based on the same facts) in Supreme Court cases. The first case Gonzales v. Google concluded the oral argument on February 21st,2023. The facts detail how the father of Nohemi Gonzales, Reynaldo Gonzalez, a U.S. citizen killed in a terrorist attack (2015) orchestrated by Isis in Paris filed a lawsuit against Google. Gonzalez asserts that Google (the parent company of YouTube) was complicit in the attack for YouTube’s algorithms leading users to terrorist recruitment videos posted on the platform. The next day after the attack, ISIS claimed responsibility for the attack in a YouTube video. The district court dismissed Gonzales’s claim against Google based on Section 230 and the court of appeals affirmed. The U.S. Supreme court granted certiorari on October 3rd, 2022.

In the oral argument, the attorney on the side of Gonzales, Eric Schnapper, argued (p.17) that Google so much didn’t fail to take down the content, but actively encouraged it through their algorithms. Schnapper implies that driving viewers to such content is outside of the scope of Section 230[2]. However, in the process of questioning Schnapper, the Court was seeking to determine if Section 230(c)(1) applies when platforms utilize “targeted recommendations” predicated on “..information provided by another information content provider..” The verdict is still pending on the case; only time will tell what the fate of Section 230 will be.

Twitter, Inc. v. Taamneh (2023)

In the twin case for Gonzales,  Twitter, Inc. v. Taamneh, was only argued a day apart from Gonzales (02/22/23). The facts of the case were a copy-and-paste of  Gonzales, but the scope of the argument was to determine if Google, Facebook, and Twitter were liable in the context of anti-terrorism statutes. Per Oyez:

“…The district court dismissed the claims based on aiding-and-abetting liability under the Anti-Terrorism Act, and the U.S. Court of Appeals for the Ninth Circuit reversed…”

The court was attempting to validate whether the above-listed platforms assist terrorist organizations by not having an extensive prevention plan (in the context of 18 U.S.C. § 2333 ). Also, the SCOTUS attempted to answer if “..internet platform whose services were not used in connection with the specific “act of international terrorism” that injured the plaintiff still be liable for aiding and abetting under Section 2333..”.

Bootleggers & Baptist Analysis

While the SCOTUS deliberates on the future of Section 230, it is still worthwhile to evaluate who truly benefits from reforming this law. The bipartisan support for amendment/abolishment of this law; makes this determination a close call. The assignment of the role of Bootlegger and Baptist can be determined by ideological preferences, like in the scenario of Qualified Immunity reform. In the name of objectivity (for the sake of positive analysis), one faction within this coalition has more to gain than the other. While liberals get to cloak themselves in the robes of the white knight saving us from misinformation, this pales in comparison to what conservatives have to gain from overturning or revising this law. Social media platforms have an obvious left-leaning bias; conservatives are disproportionately penalized for their content. If social media companies block conservative content, right-wingers gain substantially through having more forums for disseminating their ideological message.

However, it would be shrewd to warn conservatives about pursuing this end too aggressively. This is the conservative version of the Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission. Why? In the Masterpiece case liberals were hoping the court would rule in favor of violating the rights of the bake shop owners by legally forcing them to bake the gay wedding cake. Thankfully, the court ruled in favor of the bake shop; but making liberal social media platforms host conservative posts is just as transgressive as forcing right-wing Christian bakers to make gay wedding cakes. Firms operating in the private sector; have the right to exclude users for any reason they deem fit. It is frequently unwise to discriminate against platform users, but that is the Firm’s prerogative. If conservatives cannot see the irony of this inverted scenario, I am at a loss for words and can only believe that such obtusity is the byproduct of partisanship.


1.) There is a wide variety of views from conservatives on how they desire to reform Section 230 reform. Ranging from a tear-it-down methodology to a moderate approach to amending it. In his article Section 230—Mend It, Don’t End It, Klon Kitchen, former Director at the Heritage Foundation recommends an amendment strategy over abolishment. 

2.) At many points in the oral argument, it appears that Schnapper fails to convey a convincing argument upon further scrutiny from the Justices. Schnapper obtusely justified culpability peripherally through JASTA. Justice Sotomayor calls him out on deviating from the initial complaint of YouTube being derelict for failing to remove ISIS videos when at oral argument, he shifted to claiming the algorithms were the issue (p.19-20). She further prods at the veracity of the claims of YouTube aiding and abetting ISIS; when the algorithms on their face are neutral and not tailored to support explicitly pro-ISIS videos (p.25). Justice Thomas also struggled to see how “inaction” ultimately led to “aiding and abetting” (p.33).

Bootleggers & Baptists LXIII- The US Tiktok Ban H.R. 1153

Photo by Karolina Grabowska on

The Chinese social media app TikTok is currently in the crosshairs of U.S. lawmakers. Representative Michael McCaul (R., TX.) has proposed bill H.R. 1153 that confers to President Biden the authority to ban application in the United States. On Wednesday (03/01/23), “..the U.S. House Foreign Affairs Committee..” approved the bill; however, per Reuters:

“…The fate of the latest measure is still uncertain and faces significant hurdles before it can become law. The bill would need to be passed by the full House and U.S. Senate, which is controlled by Democrats before it can go to Biden…”.

The bill still has a few bulwarks to clear before becoming law. The content of H.R. 1153 justifies the prohibition of social media applications on the grounds of national security concerns. The bill cites “..espionage action..” from data collection, election interference, and the use of algorithms to target content to promote the interests of the Chinese government. There may or may not be any veracity to these concerns.

In the context of a Bootleggers & Baptists (1983)  coalition, who truly benefits from the United States restricting TikTok? Our Baptists in the effort to ban TikTok are the Republicans. This is not an endorsement of the political party; but an objective acknowledgment that a national security argument could be considered moralistic.

Now, this begs the question, who are the Bootleggers? The most obvious answer would be competing social media platforms, but these firms are tangential actors in this scenario. If American-based social media companies conspired with Republicans in the house to propose this bill, that is next-level four-dimensional chess. A more likely situation would be that the Democrats are the real beneficiaries of the nascent stages of outlawing TikTok. Why? If a politician’s objective is to retain their seat in office, then Democrats have a lot to gain; because Gen-Z is the largest constituency of voters who use TikTok. An estimated 60% of all TikTok users are members of Generation Z. Only to up the stakes, the fact that Gen-Z is more likely to vote for Democratic candidates.  Since Gen-Z also is the majority of TikTok users, pandering to this patch of voters through opposition to the ban is imperative.

Outside of Democratic politicians, there is an additional agent(s) that could stand to benefit from the direct fallout from H.R. 1153, and that is the ACLU. There is the possibility that the organization spoke out against the bill for reasons of ideological leanings (left-wing proclivities), but it is more likely the ACLU desired positive publicity. The ACLU is an organization that defends civil rights, publicly denouncing the proposed law as a threat to the First Amendment and perpetuating its public image. More positive publicity may entice donators to give more to the nonprofit and assist them in furthering the ACLU’s advocacy goals.

Friday Feature Film-Pierson v Post (Business Law Prof)

A recent article (2/12/23) from the Volokh Conspiracy made me think of this excellent video made by Enrique from Prior Probability. Back in November, Enrique referenced a blog post where he provided a written explanation of Pierson v Post (1805) in response to one of my blog entries.

However, after reading his blog entry, I searched for Pierson on YouTube; one of the top search results happened to be Enrique’s video.

Excellent work!!

Friday Feature Film-Marbury v. Madison (PublicResourceOrg)

Additional Sources:

Bootleggers & Baptists: Volume 3

Essays 1-10:

Bootleggers & Baptists: Volume 1

Essays 10-20:

Bootleggers and Baptists: Volume 2

Essays 20-30:

Bootleggers & Baptists: XX- The Death Penalty

Bootleggers & Baptists- XXI: Qualified Immunity, New Mexico, Cherry Garcia, and an Oil Barron

Bootleggers & Baptists: XXII- Opposition to Joe Biden’s Mentholated Cigarette Ban

Bootleggers & Baptists: XXIII- National Eviction Freeze

Bootleggers & Baptists XXIV: Budweiser versus The Stonewall Inn

Bootleggers & Baptists: XXV- The Energy Drink Crusader

Bootleggers & Baptists: XVI: Terrorism and Prediction Markets

Bootleggers and Baptists: XVII- Prediction Markets and Regulation (Gambling?)

Bootleggers and Baptists-XVIII- Fiat Currency

Bootlegger’s and Baptists XXIX- Arkansas and “Wet Counties”

Bootleggers and Baptists- XXX: USB-C Mandate in Europe

The Linchpin Framework of Adjudication- Submitted to The Journal of Brief Ideas

In the essay, Is Stare Decisis A Sand Castle? (2012), F.E. Guerra-Pujol details how judges possess the discretionary authority to bind and unbundle similar previous court cases. The legal scholarship is in sync with Guerra-Pujol’s observations; horizontal stare decisis does not effectively limit the SCOTUS (Cameron et al. 2019 & Lax, 2007). Why is this an issue? Because the lack of formal institutions restricting the court’s latitude to interpret the law could result in judges reshaping it to benefit their political objectives (Macey, 1994). An accusation made by many pundits after Dobbs v Jackson overruled Roe (abortion access), Justice Thomas expressed interest in reexamining Griswold v. Connecticut (contraceptive access)


The Linchpin Framework of Adjudication applies to any legal system that purports to adhere to the judicial doctrine of Stare decisis. It is analogous to pulling the linchpin from a grenade and allowing the bomb to detonate. In the absence of formal limitations, judges can “unbundle” similar cases to meet ideological goals with little regard for the law. Allowing politically motivated judges to engage in judicial activism, blurring the line between making and interpreting the law.

Stare Decisis, Judicial Constraint, & The Linchpin Framework of Adjudication


After the Dobbs v. Jackson verdict, pundits started to question the impartiality of the Supreme Court. This rhetoric may be; propelled by ideologically driven policy preferences rather than concern for the SCOTUS being free of political influences. I highly doubt that most individuals up in arms about Dobbs would have batted an eye if the high court overturned Heller.

Regardless of the motives of the endless array of talking heads in the media, maintaining governing organizations “independent” of political interests is imperative to constraining state power. We only need to see the post-2008 policies of the Federal Reserve to see how once a governing institution compromised its operational autonomy; policies move towards disastrously interventionist initiatives. This same concern can be directed at the SCOTUS. Since the function of the court is to interpret the law, not to act as a covert extension of the legislative branch.

The one institutional constraint( the Fed’s equivalent to the dual mandate) designed to limit the latitude of the court’s decision-making capabilities is the judicial doctrine of stare decisis. Stare decisis translated from Latin means “…to stand by things decided..”; in other words, the court must adhere to past case precedence. If faithfully adhered to, this doctrinal constraint can act as a powerful check on the power of the judicial branch of government.

The question becomes does the Supreme Court have any fidelity to its own past decisions? The legal scholarship would suggest that it does not. Cameron et al. (2019) describe horizontal stare decisis as “voluntary” and “..nothing compels courts to follow precedent…”, implicating that the court has no true limitation on invalidating past case law (p. 506). Frequently, the case law laid out by the SCOTUS is expected to constrain the lower courts and not hinder the adjudication of the high court (Lax, 2007, p.591). The lack of penalty for violating past case law is problematic as this could enable judges to shape court decisions that will benefit their self-interests (Macey, 1994, p.629-630).

When armed with the potential to have implicitly unconstrained digressional authority over the application of the law, there is the possibility for abuse. In the context of manipulating the law for political ends, overturning Roe v. Wade has been a policy focal point for partisan conservatives for decades. Even if the Roe decision is flimsy, from the standpoint of judicial logic, does it make it morally sound for the court to overreach and make corrections for the erroneous past decision? It would be wise to suggest no. Legal scholar and Neo-Formalist exponent, Lawrence Solum, suggests that :

“Wholesale rejection of precedent would create another problem, which we might call doctrinal instability. Sensible formalists need not deny that some constitutional questions are close, even if one is committed to textualism and originalism” (p.194).

This lack of stability politicizes the American legal system and decreases the public’s faith in the institution (per a recent Gallup poll the public’s current approval of the SCOTUS is at historic lows).

Outside of the direct impact of overturning Roe on abortion access, what are the other downstream consequences? For one, we should consider that abortion access is an unenumerated right (not formally codified in the Constitution) that the 1973 decision protected. In other words, the court used cases supporting similar or adjacent rights to justify their ruling in Roe. This is an issue because many cases that justify the court’s ruling in Roe; could be collateral damage due to Dobbs.

For example, Griswold v. Connecticut (1965)  cited in Roe (p.129); could come under fire with Roe upended. Depending on how the court bends its logic, could Griswold be next? Access to contraceptives is merely an appurtenant concern concerning abortion and does not carry the same magnitude of a moral conundrum. Since Justice Thomas has expressed the need to reconsider Griswold, contraceptive access could be in danger. In this series of events, Solum’s concerns are beginning to manifest themselves in the American legal system. All steeming one Supreme Court decision adjudicated last year.

This brings us to the concept of the Linchpin Framework of Adjudication. Any legal system that purports to adhere to the judicial doctrine of Stare Decisis is susceptible to this phenomenon. The framework is applicable when a case supported by numerous other adjacent cases is overturned, and the supporting cases cited in the nullified decision are at risk of being struck down. It is a chain reaction analogous to pulling the linchpin from a grenade; this results in the bomb detonating. By analogy, overturning the “linchpin” causes all the subordinate court decisions, propping up this single ruling; to be struck down in subsequent court sessions.

Friday Feature Film-Barrett says Roe v. Wade is not a ‘super-precedent’ (Washington Post)

Posting this video is not intended to provide any commentary on the normative claims encompassing the reproductive rights debate or a critique of the Dobbs ruling.

However, this video does ignite an intriguing debate regarding the interaction of the judicial doctrine of stare decisis and whether there is case law that is unquestionably settled (super-precedents).

For further reading, please see Precedent, Super-Precedent (2007) by legal scholar Michael Sinclair (Hat tip/:Prior Probability for recommending this article back in 2021).

The Confusion Between IP and IP Laws

Photo by Jess Bailey Designs on

Intellectual property is a valid form of property rights; however, most of the flaws are not with the inherent claims to ownership of the intangible property; but rather the laws allocating these rights. The duration and definitions of what constitutes IP rights can seem arbitrary (p.25). All because the Copyright Act of 1976 mandates the peculiar terms as being:

  • “…For works made for hire and anonymous and pseudonymous works, the duration of copyright is 95 years from first publication or 120 years from creation, whichever is shorter (unless the author’s identity is later revealed in Copyright Office records, in which case the term becomes the author’s life plus 70 years) (p.1)…”

This exercise in line drawing is riddled with flaws and subject to the capricious whims of interest groups (the rent-seeking behavior of Disney). Conversely, it is inane to suggest that because the property is not tangible, therefore; we cannot own it because the property lines are not clearly defined (p.2). If IP is non-rivalrous it would be considered a public good (p.534). This is ironic since many Libertarian critics are hostile towards IP  and also reject the notion of public goods. Even intangible property is rivalrous and excludable. The confusion is that consumption intangible property is not rivalrous, but the ability to profit from IP is. The first entrant into a new market will be the one to reap the most benefit from the innovative product, service, or process. Consumers will generally see anything afterward as a cheap imitation (unless they can drastically improve the product). 

The above statement should not be confused as an appeal to legislative fiat or other state measures to resolve this conundrum. But it is foolish to pretend that IP is analogous to a public good. We can alienate it (in the Lockean sense) through tacit acknowledgment of the first of the idea, patentable process, trademark, etc. Paralleling the first use provisions implied in the prior appropriation water rights regimes in the western United States. The first to put the concept to practical use could claim ownership. Admittedly, the transaction costs of such an informal system would be high. In other words, the government needs to clarify IP rights? Maybe. Hypothetically, producers could eliminate ambiguity through user contracts and licensing agreements (disputes which can be adjudicated in a private or polycentric legal system).