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Nation of Laws?

Nation of Laws?

John Adams is famous for saying that we are a nation (government) of laws not men.  What he meant by that was all people must abide by the law and the laws control the government’s actions not the men in the government.  In reviewing the recent CAFC en banc case CLS Bank v. Alice, I was reminded of this as the court attempted to explain the standard for patent legibility (35 USC 101).  The court’s standard is so arbitrary that the law is whatever the judges deciding the case say it is.  For instance, look at this quote:

Finally, the cases urge a flexible, claim-by-claim approach to subject-matter eligibility that avoids rigid line drawing. Bright-line rules may be simple to apply, but they are often impractical and counterproductive when applied to § 101.

The CAFC here is talking about how the Supreme Court is directing them to review this sort of case.  But look closely at this and you will see that an inventor cannot know if his patent is directed to statutory matter, a plaintiff or a defendant in a patent lawsuit cannot know if the patent is directed to statutory matter, until they have taken the case to court.  This means the ‘law’ is whatever the judges say it is in any given case and you can be certain that different groups of judges will rule differently on this issue.  These sort of nebulous standards clearly create a nation of men – particularly judges, not a nation of laws.  The Supreme Court has done similar injustice to 35 USC 103 in KSR v. Teleflex:

There is flexibility in our obviousness jurisprudence because a motivation may be found implicitly in the prior art. We do not have a rigid test that requires an actual teaching to combine . .

An appropriate synonym for flexible here would be arbitrary, based on the judges’ whims.  This means that whether an invention is nonobvious is totally up to the judges’ whims reviewing the case.  This turns the law of patents into nothing more than the dictates of judges and patent examiners.  While the CAFC provided a fairly objective test for 35 USC 103 until the Supremes screwed it up, I believe that 35 USC 103 is itself is inherently arbitrary and unconstitutional.

This power grab by the Supreme Court is not limited to patent law.  For instance, the Supreme Court has set itself up to decide whether you deserve your first amendment rights.

We have long recognized that not all speech is of equal First Amendment importance.  Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc., 472 U.S. 749, 758

Who decides which sort of speech is protected and which is not?  And by what standard?  The answer is the oracles of the Supreme Court.

Every first year law student is introduced to this nonsense with respect to personal jurisdiction issues.

This case presents the question whether the mere awareness on the part of a foreign defendant that the components it manufactured, sold, and delivered outside the United States would reach the forum State in the stream of commerce constitutes “minimum contacts” between the defendant and the forum State such that the exercise of jurisdiction “does not offend `traditional notions of fair play and substantial justice.’ ” International Shoe Co. v. Washington, 326 U. S. 310, 316 (1945), quoting Milliken v. Meyer, 311 U. S. 457, 463 (1940).  Asahi Metal Industry Co. v. Superior Court of Cal., Solano City., 480 US 102 – Supreme Court 1987

This case is known for its five part ‘balancing’ test.

1.  What is the burden on the defendant?

2.  What are the interests of the forum state in the litigation?

3.  What is the interest of the plaintiff in litigating the matter in that state?

4.  Does the allowance of jurisdiction serve interstate efficiency?

5.  Does the allowance of jurisdiction serve interstate policy interests?


What are ‘traditional notions of fair play and substantial justice?  No one can know for sure if they can be forced to defend a lawsuit in another state until the judges have ruled, which is not a nation of laws but a nation of men.

The Supreme Court is not alone in this game.  The Securities and Exchange Commission (SEC) refuses to define the crime of ‘insider trading.’

Congress and the SEC have declined (refused) to promulgate a specific, thorough definition of insider trading.  Permanently Reviving the Temporary Insider.

How can you know if you committed a crime, if the government refuses to define what the crime is?  How can you have mens rea if there is no definition of what the crime is?  This is the height of arbitrary rule by men.

These arbitrary standards make the Supreme Court like the oracles of Delphi.  We cannot hope to understand how they reach their decisions, we are just supposed to bow to and accept their answers as truth.  It is time that we demand that courts, particularly the Supreme Court clearly articulate the law.  Lack of definitions is not the height of brilliance, it is the height of arrogance and irrationalism.  Any balancing tests, multi-prong tests, flexible tests are inconsistent with a free nation and a nation of laws and should be held unconstitutional.

1 Comment

  1. [...] I stated in my post, Nation of Laws?  Balancing tests are just a way to enhance the power of the judicial branch and create a nation of [...]

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