Against Utilitarian Fundamentalism

27 Pages Posted: 30 Apr 2017

See all articles by Robert P. Merges

Robert P. Merges

University of California, Berkeley - School of Law

Date Written: March 29, 2017


Many justify intellectual property (IP) rights on utilitarian grounds: IP should exist only if and only to the extent that it can be shown empirically to increase net social welfare. Others justify IP on separate, deontic, grounds: IP exists and adds value because as an institution it produces just and fair outcomes. A prominent critique of the latter view was presented in an article called "Faith-Based Intellectual Property." I traverse that critique here. I argue that the critique mischaracterizes deontic views as a form of blind faith. I describe theories and studies showing a common intuition that under some circumstances ownership of ideas conforms with people's sense of right and wrong. Finally, I summarize a point made in my book, "Justifying Intellectual Property" (2011): that even if a deontic theory is adopted to justify the existence of IP rights, efficiency considerations and cost-benefit analysis are still useful and desirable tools in designing an effective IP system.

A later version of this article was published at 90 St. John's Law Review 681 (2017).

Keywords: intellectual property, legal theory, private law

Suggested Citation

Merges, Robert P., Against Utilitarian Fundamentalism (March 29, 2017). St. John's Law Review, Vol. 90, No. 3, 2017, UC Berkeley Public Law Research Paper, Available at SSRN:

Robert P. Merges (Contact Author)

University of California, Berkeley - School of Law ( email )

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