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.
Oren Bracha, Pointless IP (2025-2026) 135 Yale Law Journal. Online 17 October 2025.
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