abstract. This Essay examines the recent rise of originalist and textualist methods of analysis in the Supreme Court’s intellectual-property jurisprudence. The features and failures of these methods are examined by analyzing their application by the Court within three areas of intellectual-property law. In all three areas, originalism and textualism have led to perplexing and unsatisfactory results.
This trend is grounded in the two methods’ broader deficiencies. Originalism and textualism are attempts to find constraint in the law within a modernist setting in which traditional foundations of objective knowledge and authority have been undermined. Both methods are based on reification, the misguided treatment of either concepts or social relations—both of which are inherently dynamic and human-constructed—as inert objects or things in the world. By treating dynamic legal relations and concepts as objects, originalism and textualism detach the law from purpose, and therefore from both the social reality it is supposed to govern and the human goals it is designed to serve. The failure of legal reification is especially visible in the area of intellectual property because of the intense dynamism of this field. This is due to the fact that intellectual property is the embodiment, in law, of the hyperdynamism of technological innovation that is inherent to capitalism.
Consequently, intellectual-property law functions as a canary in a coal mine. This particular legal field dramatically exposes the inadequacies of originalism and textualism more generally. Addressing these inadequacies requires an alternative, dynamic jurisprudence based on purpose, both in the field of intellectual property and elsewhere in the law.
Introduction
Intellectual-property doctrine has taken a revanchist turn. Recent intellectual-property cases in the Supreme Court—particularly, those at the intersection of intellectual-property and constitutional law—have relied on originalism to divine authoritative meaning from this nation’s history and tradition of intellectual-property law.1 Some lower courts are beginning to follow suit.2 Meanwhile, the Supreme Court has embraced originalism’s cousin, textualism, which attempts to extract meaning from plain text alone, in some of its intellectual-property decisions over the last decade and a half.3 Alongside these pure instances of originalism and textualism, other major intellectual-property cases have combined elements from both methods in subtler ways, too.4 What all these cases have in common might be called a “jurisprudence of stasis”: a legal method based on a search for fixed and stable meaning of intellectual-property concepts and rules, whether in some focal point in the past or in some textual essence.
This Essay analyzes this “static” turn in intellectual-property jurisprudence through three sets of recent Supreme Court cases that reveal the growth and harm of this trend. The argument is fourfold. First, the jurisprudence of stasis is part of a search for stable foundations for legal knowledge in a modernist world where all consensually shared traditional epistemological and metaphysical foundations have lost their power. Second, the search for fixed legal meaning in either history or text leads to reification—the misconception that legal relations and legal concepts, which are both inherently dynamic, are instead unchanging and inert.5 Third, while originalism and textualism are untenable in general exactly because they reify what is dynamic and ever-developing, they are conspicuously inadequate in the field of intellectual property, where they often lead to manifestly unsatisfactory results. Originalist and textualist reasoning in intellectual-property law provides a glaring example of pointless and harmful reification, because intellectual-property doctrine is the embodiment, in legal relations, of the hyperdynamism of technology in a capitalist society. The rigidities of static jurisprudence visibly break asunder when they encounter the inherent dynamism of intellectual property. Fourth, the clear failures of the use of static jurisprudence within intellectual-property law expose the failures of originalism and textualism more generally and highlight the need for a better alternative: a legal method that dynamically elaborates legal concepts in light of their purpose.
Part I of this Essay provides a brief primer on the distinctive attributes of intellectual-property law. Part II discusses three clusters of Supreme Court cases that embody the recent rise of originalism and textualism in this field—notably, regarding patent and copyright law—as well as these cases’ analytic deficiencies and unfortunate results. Part III analyzes the clash between these analytic methods’ reifying strategies and the animating, dynamic purpose of intellectual-property law, and of law more generally. The Conclusion summarizes the defects of the originalist and textualist turn in intellectual property and offers a preliminary sketch of a purpose-based alternative to it.
I. a hitchhiker’s guide to intellectual property
Intellectual-property law, like standard property law, governs the social relations between people with respect to various external objects or resources.6 These relations consist not of one monolithic form, but of bundles of entitlements that are structured out of four basic building blocks: privileges to use, rights to exclude, immunities from expropriation, and powers to transfer.7 The field of intellectual property is distinguished within broader property law in that these relations apply to intangible information goods.8 Such goods possess distinctive features that interact with various human interests in a different way from tangible goods. These differences require a distinctive structure of legal governance, in terms of common general principles of intellectual-property law and variations within subfields of intellectual property, based on the distinctive types of information goods they govern.
Read full article
