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« Court Report | Main | The ACLU, Working for the Man »

March 23, 2015


The check on judicial "tyranny" is a functioning legislature, which can clarify the law for any judges who don't quite get the intent.
The key word, of course, is "functioning".

Yes, Jim, you have identified the problem.

Thanks for the comment

Dr. Noonan,

I could not have written a piece more on point with my own views on why patent law (not just here in the section you discuss, but throughout and including the jurisprudence of 101, has become such a mashed nose of wax).

The question though remains: will the naked King listen to the small boy?

On that note, sadly I remain...

I was aware of the Abraham Lincoln quote, but not the Thomas Jefferson quote or the Patrick Henry quote, so thanks!

In trying to understand the US approach to statutory interpretation I purchased a copy of the excellent book by Antonin Scalia and Bryan Garner, "Reading Law, the Interpretation of Legal Texts". It has more five-star reviews on Amazon than any other book that I have researched. Readers will see that the authors characterise judicial additions to statute as essentially autocratic and therefore to be minimised: arguably therefore judicial exceptions are also autocratic and should be treated the same way.

He and Bryan Garner have another book which also makes an excellent read: "Making Your Case: The Art of Persuading Judges." One of the points the authors make when briefing a case is that you should know your judge(s), their life history and background. Given the anti-autocratic attitude of Justice Scalia, those arguing for limits to judicial exceptions should have lost no opportunity of making the same point that he did and of citing his own writings back to him.

In relation to Section 101, the body of the dog is 35 USC Sections 100 and 101. The tail of the dog is the judicial exceptions. It is difficult to escape the conclusion that at present the tail of the dog is wagging the body.

There is an older book by Antonin Scalia that I have not yet bought: "A Matter of Interpretation: Federal Courts and the Law". The Amazon summary is so apt to the present discussion that it should be quoted in full:

"We are all familiar with the image of the immensely clever judge who discerns the best rule of common law for the case at hand. According to U.S. Supreme Court Justice Antonin Scalia, a judge like this can maneuver through earlier cases to achieve the desired aim--"distinguishing one prior case on his left, straight-arming another one on his right, high-stepping away from another precedent about to tackle him from the rear, until (bravo!) he reaches the goal--good law." But is this common-law mindset, which is appropriate in its place, suitable also in statutory and constitutional interpretation? In a witty and trenchant essay, Justice Scalia answers this question with a resounding negative.

In exploring the neglected art of statutory interpretation, Scalia urges that judges resist the temptation to use legislative intention and legislative history. In his view, it is incompatible with democratic government to allow the meaning of a statute to be determined by what the judges think the lawgivers meant rather than by what the legislature actually promulgated. Eschewing the judicial lawmaking that is the essence of common law, judges should interpret statutes and regulations by focusing on the text itself. Scalia then extends this principle to constitutional law. He proposes that we abandon the notion of an everchanging Constitution and pay attention to the Constitution's original meaning. Although not subscribing to the "strict constructionism" that would prevent applying the Constitution to modern circumstances, Scalia emphatically rejects the idea that judges can properly "smuggle" in new rights or deny old rights by using the Due Process Clause, for instance. In fact, such judicial discretion might lead to the destruction of the Bill of Rights if a majority of the judges ever wished to reach that most undesirable of goals.

This essay is followed by four commentaries by Professors Gordon Wood, Laurence Tribe, Mary Ann Glendon, and Ronald Dworkin, who engage Justice Scalia's ideas about judicial interpretation from varying standpoints."

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