Issue #2 2025

Editorial

Intellectual property law is characterized by a particularly dynamic regulatory environment, shaped by frequent legislative reform, rapidly evolving case law, and continuous technological change. This raises a major methodological question concerning the temporal validity of IP scholarship: to what extent do research findings from several years ago remain relevant in a field where both legal doctrine and market realities may shift within a short
timeframe?

The answer depends primarily on the nature of the research claim and the extent to which it is contingent on the legal, technological, or institutional context at the time of writing. Doctrinal scholarship that primarily describes or systematizes positive law is especially vulnerable to becoming outdated, as it may be displaced by new EU instruments or subsequent interpretative developments in the jurisprudence of the Court of Justice of the European Union. Nonetheless, such research may retain value as historical material, particularly where it documents earlier interpretative approaches or the doctrinal evolution of key concepts.

By contrast, scholarship that is normative, theoretial, or mechanism-based tends to exhibit greater temporal resilience. Normative arguments concerning the appropriate balance between incentives and access, the legitimacy of enforcement measures, or the institutional design of IP governance may remain relevant even where the surrounding legal framework has changed. Similarly, law and economics approaches often retain explanatory power over time insofar as they focus on structural features such as transaction costs, market power, information asymmetries, cumulative innovation, and strategic behavior. These mechanisms may persist despite changes in doctrinal form and therefore provide analytical tools that remain applicable across different regulatory configurations.

An interesting reading confirming this approach is that of Brian Z. Tamanaha’s Law as a Means to an End: Threat to the Rule of Law. Tamanaha’s core argument in the introduction is that modern legal culture, especially in the United States (but with implications beyond it), has shifted strongly toward an instrumental understanding of law: law is seen as a tool, a means to an end, an “empty vessel” that can be shaped, interpreted, and used to advance
goals. He contrasts this with older non-instrumental understandings of law, where law was seen as having an internal integrity and a kind of predetermined content, derived from sources such as custom, natural law, divine law, or the “logic” of legal concepts. In that older picture, law was not primarily something to be used strategically, but something that constrained actors and carried an authority independent of their preferences.

A key move in his argument is that instrumentalism originally came as a two-part proposition: law is an instrument, and it should serve the social good. But over the twentieth century, he argues, the first part survived and became dominant, while the second part became increasingly unstable because agreement on a shared social good weakened. The result is that law becomes a contested instrument: groups compete to control it, interpret it, and use it as a weapon in political, economic, and social struggles. He describes this as a kind of “Hobbesian” conflict carried out through legal institutions, where law generates conflict as much as it resolves it.

In an instrumental legal culture, law is continuously being reinterpreted and repurposed to serve changing ends. That means legal doctrine is not simply “discovered” and then stable; it is actively contested and reshaped. This is especially true in intellectual property, where the stakes are high, the economic incentives are strong, and the underlying technology changes rapidly. In other words, IP is almost a perfect example of the kind of legal domain Tamanaha describes: law is treated as a strategic instrument, and the “ends” (innovation policy, market regulation, cultural policy, competition policy, industrial strategy) are both plural and contested.

Frantzeska Papadopoulou Skarp

Editor in chief
Stockholm IP Law Review