Author: Gerard Magliocca


More Thoughts on Bilski

To paraphrase Bon Jovi, Bilski gives minimalism a bad name.

The Court’s rejection of the “machine or transformation” test as the exclusive means of defining a patentable process is reasonable.  But where is the guidance?  Justice Kennedy is just way off when he says “this Court’s precedents on the unpatentability of abstract ideas provide useful tools.” Really?  That line is especially  funny when it’s paired with the following sentence, which talks about “if the Court of Appeals were to succeed in defining a narrower category or class of patent applications that claim to instruct how business should be conducted,” then that might well be fine.  IF?  MIGHT?  I guess the Court isn’t so confident that its precedents contain useful tools.  Perhaps that is why Justice Scalia did not join these parts of the Court’s opinion, leaving them as stating the views of only a plurality.

Perhaps the Federal Circuit will simply look to Justice Breyer’s concurrence (which Justice Scalia joined in part), and keep applying the machine-or-transformation test until the Supreme Court takes another patent case.


The Bottom-Line of Bilski

To:       Federal Circuit

From:   Supreme Court

RE:       The Test for Business Method Patents

We don’t like what you came up with, but we can’t come up with anything.  Try something else, and we’ll let you know what we think about that.

UPDATE:  I wonder if Justice Stevens lost his majority somewhere along the way.


Elizabeth Littlefield Confirmed

As a follow-up to my post from two weeks ago, the Senate today confirmed Elizabeth Littlefield’s nomination to head OPIC (Overseas Private Investment Corporation).  Hopefully other relatively uncontroversial nominees who are being “held” by anonymous Senators will be confirmed swiftly.


Final Supreme Court Opinions on Monday

The Court just announced that Monday will be the last day for opinions.  That means that Bilski and McDonald will come down then, and I plan on doing several posts commenting on those decisions during the day.

UPDATE:  Several people have pointed out that Justice Alito is the only one without an opinion from the March sitting, which means he probably has McDonald.  Justice Stevens is the only one without an opinion from the November sitting, which means he probably has Bilski.


Climate Change

One thing I’ve been thinking as the Gulf oil leak continues is how that catastrophe should influence our environmental priorities.  A lot more was written and said about climate change over the past ten years than about the risks of deep-water drilling.  That doesn’t mean that climate change isn’t a real problem, but is it the #1 problem that we face?  And is it being addressed in the right way?

Sometimes I wonder whether climate change is the modern version of strategic arms talks.  During the Cold War, massive efforts were put into negotiations on limiting increases in nuclear weapons.  That was a real problem, but I think now most people agree that those efforts were largely a waste of time.  They didn’t make the world safer.  What made the world safer was a political change that defused the underlying tension.  Nobody today cares that Russia has lots of nuclear warheads or whether they have more than we do.

Similarly, it seems to me that the solution to climate change is the development of a new and inexpensive energy source, not a new and complicated regulatory scheme for emissions.  I have confidence that governments can speed up the development of the hydrogen car.  I don’t have confidence in their ability to construct or administer cap-and-trade in an effective way.


Thoughts on the Gulf Spill

In anticipation of the President’s speech tonight, I thought I’d make some observations about the situation in the Gulf.

1.  When I taught Admiralty last semester, I pointed out to my students that many of the statutes in this area are obsolete.  But, I quickly added, Congress won’t do anything about this until there’s a crisis.  Now we see a slew of proposals to amend the Jones Act, amend the Death on the High Seas Act, amend the Limitation of Liability Act, and overturn the Court’s decision on punitive damages in the Exxon Valdez case.  Maritime law is hot!  Of course, whether this sort of knee-jerk response leads to thoughtful changes is another matter, but overall it’s probably better that these neglected topics just get attention.

2.  The discussion about setting up a 9/11 style Fund (paid for by BP) to address claims arising from the disaster is intriguing.  It seems to me, though, that some new statute will required to make this work.  In particular, I’m not clear on how such a fund would interact with bankruptcy law.  Suppose BP puts $10 billion in escrow for the fund.  Then later they have to file for Chapter 11.  I don’t think that the fund would be immune from other creditors or that litigants would have priority over them (admittedly, though, some of my co-bloggers know far more about this than I do).

3.  A far less important point.  This crisis shows why the AALS Annual Meeting should not require such an early date for setting up panels.  Obviously, I’d like to do this year’s Admiralty Section panel on the spill.  But now I can’t — the deadline for setting up the panel was two months ago.  Granted, AALS can organize a separate one on the issue, but their rigidity with respect to the sections is rather irritating.


Who is Elizabeth Littlefield?

A disturbing trend in the Senate is the growing use of anonymous “holds” to keep nominees from getting a floor vote.  A hold is a threat by a Senator (made privately to the Majority Leader) to refuse a request for unanimous consent and insist on the filing of a cloture petition.  Since this is a time-consuming process, in many instances a hold is successful in blocking the nominee.  What’s worse, nobody usually knows who is placing the hold on a candidate.  Although holds must be disclosed after six days, senators are getting around this by swapping holds back and forth (like a hot potato) so that nobody can be held accountable. As a result, holds can be used as secret bargaining chips to get an extra bridge or a special tax loophole.

This practice is especially pernicious because it tends to focus on mid-range candidates that are not controversial. Take Elizabeth Littlefield, who is the President’s choice to head the Overseas Private Investment Corporation (OPIC).  OPIC is a federal agency that facilitates U.S. investment in underdeveloped countries.  She was nominated in November and approved by the Foreign Relations Committee in April.  She is highly qualified for the position, and I am aware of no objection to her on political or ideological grounds.  Nevertheless, some GOP senator has placed a hold on her and she’s now dead in the water.

This is an outrage.  Hardly any of you have probably heard of OPIC, so why should an excellent nominee with broad support be stymied in secret by a few senators?  The President should stop this nonsense by giving Littlefield and other similar situated candidates a recess appointment as soon as possible.  (Granted, that would only last for a few months, but another recess appointment could be made early next year.)


Punitive Damages in Maritime Law

As the Gulf disaster continues, it is worth thinking about about the potential liability of BP and other parties.  Following the Exxon Valdez disaster, the Supreme Court held, acting in its capacity as a common-law court, that punitive damages in admiralty could not exceed the compensatory damage award.  Justice Breyer dissented from this part of the opinion, explaining that “this was no mine-run case of reckless behavior. The jury could reasonably have believed that Exxon knowingly allowed a relapsed alcoholic repeatedly to pilot a vessel filled with millions of gallons of oil through waters that provided the livelihood for the many plaintiffs in this case. Given that conduct, it was only a matter of time before a crash and spill like this occurred.”

Perhaps some future court will distinguish Exxon from a suit against BP, but the opinion is awfully clear that a 1:1 rule is the law.  Congress, though, is free to change this, since Exxon is not part of the Court’s due process jurisprudence on punitive damages (which treats anything above 10:1 as suspect). Just as Congress may amend the Limitation of Liability Act in response to this crisis, they should also look at the punitive damage question.


Invention . . . meet Necessity

Justice Oliver Wendell Holmes explained (in the Northern Securities Case, a controversial antitrust case) that:

“Great cases like hard cases make bad law.  For great cases are called great, not be reason of their real importance in shaping the law of the future, but because of some accident of immediate overwhelming interest which appeals to the feelings and distorts the judgment.”

Is this true?  It depends what you mean by “bad law.”  If you mean a decision that does not follow precedent or the usual norms of judicial behavior, then Holmes was probably right.  But creativity is not always a bad thing. Marbury v. Madison, for example, is taught as a “great case” because of the political pressure that the Court faced (Madison boycotted the argument, Jefferson wouldn’t have complied with an order to give Marbury the commission). And Marshall’s opinion was certainly unorthodox.  But was it bad law?  Hardly, if you like judicial review.

I bring this up because I’m now writing an article on “The Obama Generation and the Supreme Court,” which will talk a fair amount about the constitutional challenge to the health care bill.  In looking at past cases where the Court from one generation (e.g., the Old Court in the 1930s) collides with a new generation (the New Deal), you can see that the resulting friction often leads to bad law in the narrow sense that Holmes was talking about, but that tension also generates new ideas that become integral parts of the constitutional culture.

Great cases, therefore, probably make good law about as frequently as they make bad law.


The Hand of God

As the World Cup begins (and a groove on my couch awaits), the thought occurred to me that the Justices are more comparable to those officials rather than (as Chief Justice Roberts famously said) baseball umpires.  Consider the following:

1.  Umpires rarely change the outcomes of a game.  Soccer referees do all the time.  (Just ask Ireland.)

2.  Baseball is a rule-bound game.  Soccer gives the referee lots of discretion (whether to award a penalty kick or not, whether to red card somebody or not, etc.)

3.  Soccer fans frequently accuse the ref of being biased.  You rarely hear that about umpires.

4.  An umpire can have his call corrected by his colleagues.  There is no appeal from a soccer referee’s decision.

Which of these sounds more like a Supreme Court Justice?

P.S.  No Bilski today, in case you were wondering.