Bilski: business as usual [LWN.net]

By Jonathan Corbet
June 28, 2010

For many months now, anybody who pays attention to the US patent system has been anxiously awaiting the decision in the Bilski case. This case started as a lawsuit against the US patent office over its rejection of a business method patent. As this case worked its way toward the US Supreme Court, it came to be seen by many as a vehicle by which, just maybe, patents on business methods and software could be struck down. Much energy - and many amicus briefs - were directed toward that goal. As the last possible date for a ruling approached, the Free Software Foundation observed: "For Supreme Court watchers, following Bilski has been like following the World Cup. Productivity has fallen and ulcers have grown." Alas, it seems that the World Cup analogy extends to bad calls as well.

The ruling is out; Groklaw has it. With the concurring dissents, it runs to 71 pages. Reading the whole thing can lead to a much better understanding of the history of patent law in the US, but, for those concerned about possible changes to the patent system, the conclusion is far more succinct:

The patent application here can be rejected under our precedents on the unpatentability of abstract ideas. The Court, therefore, need not define further what constitutes a patentable "process"...

In other words, the court chose to rule on the value of one specific patent application. In the process, it possibly loosened the criteria slightly by saying that the "machine or transformation" test is not the sole guide to patentability. But the court went out of its way to avoid deciding - either way - whether business methods as a whole could be patented. The only real mention of software patents was a passing note that relying too heavily on "machine or transformation" could "create uncertainty as to the patentability of software, advanced diagnostic medicine techniques, and inventions based on linear programming, data compression, and the manipulation of digital signals." But, even there, the court went out of its way to have anything read into its words:

It is important to emphasize that the Court today is not commenting on the patentability of any particular invention, let alone holding that any of the above-mentioned technologies from the Information Age should or should not receive patent protection. This Age puts the possibility of innovation in the hands of more people and raises new difficulties for the patent law. With ever more people trying to innovate and thus seeking patent protections for their inventions, the patent law faces a great challenge in striking the balance between protecting inventors and not granting monopolies over procedures that others would discover by independent, creative application of general principles. Nothing in this opinion should be read to take a position on where that balance ought to be struck.

This refusal to face the issue can only come as a disappointment to anybody who was hoping that the court would make substantial changes to the current application of patent law in the US. But it can't have come as any real surprise to people who are familiar with the current court. The current chief justice - John Roberts - has been very clear from the outset that he is not interested in the writing of expansive rulings. The court was asked to decide on one specific patent, so that's what it did. No nonsense about, say, laying down a clear interpretation of the law that would eliminate the need for a long series of court cases stretching into the future.

There are many who would argue that this is exactly how it should be, that it's up to the legislature, not the courts, to write the laws. Others would argue that the American precedent-based legal system guarantees that the courts will have a hand in the writing of law that people actually live by in any case, and that the court should have taken the opportunity to reduce the amount of uncertainty in this area. Certainly, it would have been nice if the court had thought a little more broadly; now it seems that the only alternatives are more court cases or an attempt to get the Congress to do something constructive, or, likely, both. One could argue that the decision to do nothing was a bad call indeed.

That said, while it would be nice if the courts would just fix the situation, it may well be the case that rewriting the law to explicitly restrict the range of patentable inventions would be the best solution. Getting the US Congress to do something about the patent system is a daunting prospect, but it's not beyond the realm of possibility. There is an increasing awareness that the patent system is costing businesses a lot of money and is impeding the competitiveness of the country as a whole. While there are powerful interests in favor of the status quo, there are others pushing for reform. It might just happen, someday.

Meanwhile, we're stuck with the same situation we had before this decision was handed down. Software patents remain a threat in the US and they are looking increasingly threatening elsewhere. We will have to continue fighting them in all of the same ways, including what is arguably the most effective strategy of all: make free software so useful and so ubiquitous that the industry has no choice but to continue to try to protect Linux and, hopefully, find a way to address the patent threat for real.

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Bilski: business as usual

Posted Jun 28, 2010 23:41 UTC (Mon) by coriordan (guest, #7544) [Link]

Yeh, there are silver linings, like the rejection of two of the CAFC's worst rulings:

nothing in todays opinion should be read as endorsing interpretations of §101 that the Court of Appeals for the Federal Circuit has used in the past. See, e.g., State Street, 149 F. 3d, at 1373; AT&T Corp.

The End Software Patents brief argued that these were based on mis-applications of the Supreme Court's case law (an argument developed by Ben Klemens). Glad to see they got slapped.

But this isn't enough. The Supreme Court's decision is to be interpreted by the CAFC and the USPTO. Both are madly pro-swpat, so only a very clear rule would hold them back. We didn't get any clear rules today, so there'll be no change. The real silver lining here is that the Supremes didn't make the situation any worse (not much silver though, when you consider how little room there is for being worse than the current situation).

The FSF needs pragmatism

Posted Jun 28, 2010 23:56 UTC (Mon) by ramon_garcia (guest, #67060) [Link] (11 responses)

The correct way of attacking software patents is by the balance between the effort to obtain the invention and the blocking effect of the patent. And that anything creative can be regarded as non-obvious and thus patentable even if the cost is hours. You can see the discussion with the head of the UK patent office (during the debate about software patents in Europe).

By insisting in the simplistic speech that software patents are bad, and hoping to demonstrate it by repeated assertion, the FSF will convince nobody. They seem to attempt to protect themselves against critical thinking.

The FSF needs pragmatism

Posted Jun 29, 2010 0:00 UTC (Tue) by coriordan (guest, #7544) [Link] (9 responses)

Hi,

I wrote FSF's amicus brief. It's here:
http://endsoftpatents.org/amicus-bilski-2009

Can you point out where our argument is based on repeated assertion?

The style I was aiming for was to point out real world harm, and to end with quotes from others who support this.

The FSF needs pragmatism

Posted Jun 29, 2010 3:28 UTC (Tue) by ccurtis (guest, #49713) [Link] (7 responses)

Hello,

I just now read through your brief and thought I'd share my thoughts. Firstly, I think you started out really strong - I liked the tie ins to the various constitutional principles. However, I started to fade about the time you were talking about Apache. Perhaps lawyers have a stronger constitution for reading this sort of thing, but this section seemed to go into too much detail - I started to ask myself what any of this had to do with the case at hand.

I think your comment about not being able to play videos and DVDs because of a patent (or fear thereof) was not persuasive. I would expect that this could be used as an argument in favor of patents, as should be clearer shortly.

I liked the reference to the quote by Bill Gates. I akin this to the MAD policy under Reagan (Mutually Assured Destruction). Whether or not this is a persuasive argument against patents I cannot say ("MAD helped us 'win' the cold war...") but the result is the same: a very expensive perpetual stalemate. It is a topic probably best avoided.

I didn't notice anything about NPEs or "patent trolls". I realize that this is not a new problem, but given the amount of time spent discussing Microsoft's patent stance they seem to fit in well with the general theme of leeching profits while producing nothing.

Now, with respect to the while patent thing in general, here's the problem I see: Basically, the only thing the U.S. produces any more is "IP". The country is deeply in debt and really needs some way to ensure that capital keeps flowing into the U.S. We (U.S. Citizens) excel at producing this "innovation" stuff, but with China producing all the tangible stuff, we have to erect these elaborate global IP barriers so we can still get paid. The only other thing we export is Hollywood movies so keeping tight control on who can watch what when may very much be in national interests - however that control is achieved. (Naturally, China doesn't really care too much about our self-asserted IP rights, anymore than the early U.S. did with Britain's, thus ACTA &c.)

So, unless I'm really off my rocker, it's this fairly critical issue that needs to be addressed whenever talking about getting rid of software patents. If we could somehow show how a foreign company - a foreign NPE perhaps - could single-handedly shut down the entire U.S. software economy through these ridiculous patents, then people may actually start to care. I think the RIM fiasco nudged us a bit closer to that point, but it was too short-lived and congress' memories are short.

Now, in a separate vein of thought, I was very confused about the "as a whole doctrine" sections. I may need to read it again when my head is clearer, but it would seem that if "as a whole" applied to software patents, then the software alone would be safe from infringement claims - it would be the end user who assembles the final device who would be liable. No?

The FSF needs pragmatism

Posted Jun 29, 2010 3:34 UTC (Tue) by dlang (guest, #313) [Link] (4 responses)

what makes you think that foreign companies are going to respect US patents for products sold anywhere but in the US?

they already completely ignore copyright (not just P2P but full-blown commercial copying and retail levels.

The FSF needs pragmatism

Posted Jun 29, 2010 4:09 UTC (Tue) by ccurtis (guest, #49713) [Link] (3 responses)

Are you talking to me? You commented as though you are. My post was rather long, can you quote the part you're responding to? Thanks.

The FSF needs pragmatism

Posted Jun 29, 2010 5:14 UTC (Tue) by dlang (guest, #313) [Link] (2 responses)

I was replying to your 5th paragraph where you say that the only think the US develops is IP and we need protections to make sure that we get paid.

The FSF needs pragmatism

Posted Jun 29, 2010 16:30 UTC (Tue) by ccurtis (guest, #49713) [Link] (1 responses)

I don't want to stray too far from the topic at hand so apologies beforehand if this comes across as terse or rambling:

Consider paragraph 5 as what the supremes (or at least the politicians in congress) are thinking, and as what needs to be addressed in order to affect software patent change.

Unfortunately, software is thought of as "IP", which includes such dissimilar concepts as trademarks, copyrights, and patents. This puts software in the same category as books, music, movies, and other "concept property" - which have the backing of organizations like Disney, the MPAA, RIAA, and other groups who will fight mercilessly against any perceived weakening of their positions in these fields.

Today, this group would also include Monsanto (gene patents, BT, etc.) and tomorrow there will be even more powerful companies with close ties to legislators working to strengthen these "protections".

To your question "Do I think other countries care about these US laws?" Of course not, and to which I clearly stated that China does not. And also said, "thus ACTA" (via the WIPO and WTO). The goal is simply to brow-beat the world into conforming with US protectionist measures.

To cmccabe, yes, I do understand that the U.S. is still a major exporter. But these guys in government are old. They remember huge factories in the U.S. and tangible exports of commodity goods. Vast numbers of these factories now sit idle, rotting away. Virtually any consumer product bought in stores here is made in China - from television sets, to computers, to cell phones, or to any Apple product.

So what is replacing those factories? Software. Movies. Genetic Engineering. Nanotech. In the US we still design and innovate, but as soon as something is ready for market, production is shipped overseas. And what are we left with? These intangible ideas. But the ideas get shipped away along with the ability to produce the goods.

So what do people use to keep their revenue streams? "IP Protection". Because, clearly -- if we tell someone they can't do something, then they won't. (... not). So this huge convoluted web is formed where countries get punished for "stealing" ideas that were GIVEN to them so they can produce goods. It's insanity.

The only thing really protecting U.S. ideas for goods shipped overseas is marketing. Why do people buy Apple? Marketing. Why Microsoft? Marketing. Why buy a name brand toothpaste when the exact same factory also produces a store-brand knockoff for 1/3 the price? Marketing.

So am I claiming that the solution is for software people to improve their legal marketing? I make no such claim, but it can't hurt.

Perhaps the right thing is to show that software clearly -- clearly -- does not belong with these other concepts. I believe the same argument for software should hold for biology, so there may be common ground with those fighting gene patents. Ultimately both of these are "programmable logic" fields not dissimilar from the "logic" and "mathematics" fields.

One problem we have to address, I think, is that, for example, chemistry is discovery, but applied chemistry creates novel (patentable) materials. Biology is discovery, but applied biology can create novel life features (right now we're at the cut-n-paste stage, but eventually biology will be used to manufacture novel things ... like trees that breathe carbon dioxide and exhale bicycles or gasoline). Applied logic/mathematics is software. Certainly there is novelty in this: the first spreadsheet program, for example. Why should this not be worthy of patent protection?

Now, this is a huge topic better suited for other venues, but just some random data follows. Hollywood makes about $10 billion annually, both in domestic and foreign sales [1]. This accounts for about 1% of U.S. exports, which are about $100 billion a month [2].

Exports related to computers have about doubled since 1989 (= ~10% of exports), while gross exports (non-inflation adjusted) have tripled (now = ~7%). I don't know how movies are categorized (X40140 appears to be 1/2 the reported number) but that number has increased ~4x, and they are "well protected" IP-wise, thanks to CTEA, etc. And ergo, better protection = more $$.

But on the flip side of things, the FTC has said, effectively, that they do not care about a company's patent rights [3] - refusing to allow them to raise their prices. The patent is still valid, but the patent holder's rights have been limited. I don't know how this case has progressed through the courts, if at all, but it would be a very interesting ruling if upheld.

[1] http://www.thefreelibrary.com/Hollywood+closes+off+record...
[2] http://www.bea.gov/agency/uguide1.htm#_1_19
[3] http://www.theregister.co.uk/2008/01/24/ftc_stomps_patent...

The FSF needs pragmatism

Posted Jul 8, 2010 23:37 UTC (Thu) by Wol (subscriber, #4433) [Link]

Why shouldn't the first spreadsheet be patented?

That's actually easy to answer. All it is is a ledger book (the idea dates from the 1800s, if not earlier) done using a computer.

Where the novelty lies is in all the naysayers saying "it can't be done", and the visicalc guy (can't remember his name) pulled it off. HOW he did it might be protectable, but that's subject to protection under copyright, not patent.

At the end of the day, software is maths. The program (as supplied on tape, floppy or CD) is just one big number. And if you combine that with a general purpose computer to make a word-processor, or spreadsheet, or database, the result is not (or shouldn't be!) patentable.

If you've got dedicated hardware (like a crypto-chip, say) then yes, patent the cryptochip. But if someone then makes an emulator that runs on a pc, tough. They've worked round your patent, as the patent system quite clearly says is legit.

Cheers,
Wol

The FSF needs pragmatism

Posted Jun 29, 2010 9:33 UTC (Tue) by cmccabe (guest, #60281) [Link]

> Now, with respect to the while patent thing in general, here's the problem
> I see: Basically, the only thing the U.S. produces any more is "IP".

The U.S. exports a lot of things that are quite tangible. And a lot of the most useful and best ideas can never be property. Basic scientific research is rarely patentable because it can't pass the machine or translation test.

Usually the "intellectual property" embedded in devices, websites, and organizations doesn't make sense outside the context it was developed in. It often doesn't need to be protected because unless you can duplicate that context, it is useless to you.

The FSF needs pragmatism

Posted Jun 29, 2010 16:57 UTC (Tue) by coriordan (guest, #7544) [Link]

> ... this section seemed to go into too much detail ...

That's a question for an expert, so I consulted two lawyers specialised in the Supreme Court. One said "short and readable" and the other said "list every possible thing that could give them a reason to listen to you" :-/ We already had a long text already partly written, so we used it.

> I didn't notice anything about NPEs or "patent trolls".

Our corporate allies (Red Hat and kinda Google) and our corporate enemies (IBM and Microsoft) are the main victims of trolls. They're already working on a solution (the Patent Reform Act). If I was writing the only amicus brief, then I would have worked this point, but in the actual context it wasn't necessary since others would do it more authoratively.

But, who will point out the issue of individuals, low-cost SMEs, and communities of developers needing to be free to write and distribute software? That's where we could make a needed contribution.

> Now, in a separate vein of thought, I was very confused about the "as a whole doctrine" sections.

If the patent is "software on a (standard) computer", then the computer should be separated out because it's non-innovative and only contributes "insignificant post-solution activity". Then you're left with software, and there's the possibility that it will be found to be a non-patentable abstract idea. The problem is that the CAFC ignored the "insignificant post-solution activity" and so applied "as a whole" to indescrimiately, which means that the computer won't be separated out. The inclusion of something you can drop on your foot (a computer), makes it almost impossible to reject the claim as being just an abstract idea.

> it would be the end user who assembles the final device who would be liable. No?

The separation mentioned is for the examiner to decide if the patent is valid in the first place. If they don't approve the application, then it can't be infringed by anyone.

The FSF needs pragmatism

Posted Jul 8, 2010 10:32 UTC (Thu) by SecretEuroPatentAgentMan (guest, #66656) [Link]

> I wrote FSF's amicus brief.

The name "Jerry Cohen, Esq." appears in the text. There are some parts I find a bit odd, did he not at least comment on the text before submitting it?

The FSF needs pragmatism

Posted Jun 29, 2010 0:28 UTC (Tue) by dlang (guest, #313) [Link]

one good thing about this decision is that the court does recognize that there is tension between patents and infringing on the public domain (their words) and that in this era where there are ever more innovators care needs to be taken to not hurt

quote: This Age puts the possibility of innovation in the hands of more people and raises new difficulties for the patent law. With ever more people trying to innovate and thus seeking patent protections for their inventions, the patent law faces a great challenge in striking the balance between protecting inventors and not granting monopolies over procedures that others would discover by independent, creative application of general principles.

this is at least recognizing that there is a issue here, which most of the pro-patent people would like to pretend didn't exist (that everything should be in favor of the first person to get a patent)

Bilski: business as usual

Posted Jun 29, 2010 1:23 UTC (Tue) by modernjazz (guest, #4185) [Link] (4 responses)

> The current chief justice - John Roberts - has been very clear from the outset that he is not interested in the writing of expansive rulings.

Except, of course, when he stretches much farther than the case requires, like when he tossed out campaign finance reform laws.

Bilski: business as usual

Posted Jun 29, 2010 1:48 UTC (Tue) by drag (guest, #31333) [Link] (1 responses)

What one person calls "campaign finance reform" another person calls "a infringement on the freedom of speech, which is expressly and specifically forbidden by the constitution"... ESPECIALLY when it comes to politics.

Bilski: business as usual

Posted Jun 29, 2010 15:18 UTC (Tue) by modernjazz (guest, #4185) [Link]

The point was not whether you agree with the decision in Citizens United; I agree it's a very delicate issue, but in any case debate over the merits or demerits of that decision is not really relevant for LWN.

The point of my comment was merely whether this supreme court rules narrowly, as stated in the quote I excerpted from the original article. No one would call Citizens United (as one example) a narrow ruling: had they wanted to rule narrowly, they could have done essentially the same thing they did in the Bilski case. But they chose not to, and notably it was a 5-4 decision, not the 9-0 or 7-2 that characterizes many previous "expansive" rulings.

So, while Roberts _said_ when he was appointed that he wasn't interested in expansive rulings, the actual decisions have sometimes proven otherwise. (Not that there haven't been some narrow rulings, too; it has been a mix.) My post was merely clarifying that there is often a gap between what someone says they want and what actually ends up happening in reality.

Bilski: business as usual

Posted Jun 29, 2010 2:30 UTC (Tue) by gmaxwell (guest, #30048) [Link] (1 responses)

Have you actually read the Citizens United opinions? It's a hard question ... I found it much harder to be outraged once I was well informed. This is often, but not always the case with supreme court cases.

Bilski: business as usual

Posted Jun 29, 2010 15:35 UTC (Tue) by modernjazz (guest, #4185) [Link]

Sure, I agree that it's a complex issue, and IANASCJ (I Am Not A Supreme Court Justice). Not that it would help clarify things much if I were, given the 5-4 ruling...

But one thing is certain: no one could possibly call Citizens United a narrow ruling. Indeed, it was pretty close to the broadest possible ruling, given the constraints of the case. Sometimes broad rulings are good, sometimes bad, but it's an error to think that this particular court is never interested in expansive rulings. Therefore, it was not crazy to hope that the Bilski ruling would have been more expansive.

Bilski: business as usual

Posted Jun 29, 2010 2:12 UTC (Tue) by mikov (guest, #33179) [Link] (8 responses)

Don't forget that the same court also just legalized gun possession in the US (I know I am simplifying). So, may be we should finally take things into our hands with regards to patents? :-) Oh, you have a software patent there? Say hello to my little friend!!

Bilski: business as usual

Posted Jun 29, 2010 2:53 UTC (Tue) by yokem_55 (subscriber, #10498) [Link] (3 responses)

Ironically, to many gun rights groups, the McDonald ruling suffers from the same flaw as the Bilski ruling: it doesn't set a clear standard. While the court took a major step of tossing out the outright ban on handguns in Chicago, the majority did not set any standard on what kinds of restrictions on firearm ownership were alowed or not. Outright bans? No. Anything else? Who knows.

Bilski: business as usual

Posted Jun 29, 2010 3:11 UTC (Tue) by drag (guest, #31333) [Link]

I am a supporter of gun rights, but I notice how people leave out the "well regulated" part when talking about it.

Bilski: business as usual

Posted Jun 29, 2010 4:38 UTC (Tue) by nix (subscriber, #2304) [Link] (1 responses)

No matter what else the court is in favour of, it's in favour of more work for lawyers.

(but that goes almost without saying)

Bilski: business as usual

Posted Jun 29, 2010 12:51 UTC (Tue) by proski (guest, #104) [Link]

You nailed it

Strange twist of the facts

Posted Jun 29, 2010 14:12 UTC (Tue) by clugstj (subscriber, #4020) [Link] (3 responses)

US Constitution, amendment II.

"A well regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms, shall not be infringed."

I wouldn't say the "court just legalized gun possession". I'd say the US constitution explicitly legalized it in 1791.

If you want to ban gun posession in the US, you will need to repeal the second amendment.

Strange twist of the facts

Posted Jun 29, 2010 14:37 UTC (Tue) by davide.del.vento (guest, #59196) [Link]

Well, before the court ruled, there were many who interpreted the amendment II as applied to states ("well regulated militia"), not individuals.
Or at most that "individual rights" were there just for the historic accident of the end slavery happening at the same time, and the right of those people to defends themselves against their "owner".

So "court just legalized gun possession" could be a little twist but not much, IMHO.

Strange twist of the facts

Posted Jun 29, 2010 15:01 UTC (Tue) by mikov (guest, #33179) [Link]

You know very well that this is what the founding fathers meant:
http://www.thereheis.com/images/family%20guy%20bear%20arm...

Strange twist of the facts

Posted Jul 1, 2010 7:21 UTC (Thu) by jschrod (subscriber, #1646) [Link]

For me, »*WELL REGULATED* militia« reads different than everybody has the right to shoot at his neighbour when he thinks it's self defense. The SC didn't just confirm the right for well regulated militias, it made the (de-facto existing for most of the country) right for personal posessions of guns for personal goals precedent-level legal.

But then, I live in a civilized country, don't have to take up with barbaric U.S. gun crazyness and don't have to live in one of the U.S. cities where there are multiple shootings every night. (Chicago, any one? When there is a shooting here, it's national news, so seldom does it happen.) So, actually, I don't care.

Bilski: business as usual

Posted Jun 29, 2010 13:42 UTC (Tue) by j1mc (subscriber, #56848) [Link]

Or we could all apply for jobs at the U.S. patent office: http://is.gd/d8PrY

Bilski: business as usual

Posted Jul 1, 2010 14:07 UTC (Thu) by njwhite (guest, #51848) [Link]

The SFLC did a really good job covering the Bilski decision in a recent podcast: http://www.softwarefreedom.org/podcast/2010/jun/29/episod...

Bilski: business as usual

Posted Jul 2, 2010 2:57 UTC (Fri) by paulmfoster (guest, #17313) [Link] (6 responses)

The precedent-based legal system is a relatively new invention of law professors, compared to the structure of our government as laid down in the Constitution. Per that document, it is indeed true that the legislature dictates law. That's why they are *elected*. Supreme court judges are not elected by the people, and should not dictate or decide what is law. People tend to be in favor of the Supreme Court deciding the law until the make up of the court shifts away from their wishes. Then they don't like the idea. The only reason any of this is important is because there are always dishonest jerks who push the boundaries of the law for their own ends. There are only two solutions: 1) make a veritable cornucopia of laws which act like a straitjacket on everyone, or 2) let each case be decided on its own merits, using the law and common sense. The truth is that laws can never cover every circumstance without smothering the populace they govern.

Bilski: business as usual

Posted Jul 3, 2010 0:35 UTC (Sat) by giraffedata (guest, #1954) [Link] (4 responses)

You're saying until relatively recently, courts interpreted the law differently in every case, maybe depending on who was sitting at the time or what the court thought the result ought to be for that case? I've never heard of that. People have always insisted on consistency and predictability.

And I don't think I'd say people in general are ever in favor of the Supreme Court making the law. They think what's right is obvious to everyone already; there's nothing to be made. Should the court find that the law is different from that obvious thing in some case, they get angry about the lawlessness of the court.

Bilski: business as usual

Posted Jul 4, 2010 4:35 UTC (Sun) by paulmfoster (guest, #17313) [Link] (3 responses)

Study the history of law, and you will find that, I believe around the early part of the 20th century, law professors came up with a doctrine that current cases may be decided by relying on the rulings in prior cases. See the definitions of "stare decisis" versus "originalism". Under originalism, the primary factor is the text and intent of the law as originally written. Also see the Constitution as a "living document", which is the view of those who are not "originalists". Under non-originalist interpretation, the meaning of the Constitution can change depending on the conditions in society. Rather than the constitution meaning what it meant when the Founders wrote it.

And there absolutely are people who are more than willing to have the Supreme Court make law. Up until the early 70s, there was no federal law regarding abortion. Congress was unwilling to pass such a law, considering the divided opinion on the subject among the populace. In desperation, the case Roe V Wade was brought before the Supreme Court in an attempt to have the matter decided. The court decided that, based on a presumed right to "privacy" not mentioned in the Constitution, abortion should be allowed. Pro-abortion people were more than happy to have the Supreme Court decide the matter. Even though it vastly overstepped the court's mission to do so. When people cannot get laws passed they want, they are willing to have the Supreme Court make such laws out of whole cloth, as they did in Roe V Wade.

In 2008, the people of California voted by a large margin to bar homosexual marriage with Proposition 8. The results were clear. Yet since then, many groups have attempted to bring challenges, including in court, to the law, because they disagreed with it. They are more than willing to have a court strike down a law which was voted in by the majority of the people in the state.

I'm not passing judgment on the issues themselves. I'm merely pointing out that when people can't get their way under the law, they're willing to get it some other way, including having a court make law or strike down a properly constituted law.

Bilski: business as usual

Posted Jul 4, 2010 20:43 UTC (Sun) by giraffedata (guest, #1954) [Link] (2 responses)

I didn't realize stare decisis was that new. However, cursory research tells me "early twentieth century" might be off by a hundred years. I know I've read lines of cases going back to the mid-1800s that seem at least heavily influenced by prior decisions, particularly of higher courts.

And I definitely agree that there are large numbers of people who are happy if a court ignores precedent when it goes their way. But I believe if you asked those same people if, as a general rule, they would rather live under a government that is required to decide legal disputes the same way it did the last time or one that treats every case as one of first impression, the majority would favor the former.

On the other issue of the courts just making up law where the legislative branch has declined to, I think people think the same way -- on a particular issue, they'll say the court should rule in their favor regardless of any legal principle, but if asked for a general rule would say they don't want courts legislating.

But there are really very few cases where there is consensus that the court changed the law. In most the cases where people complain of that, a reasonable person (well enough informed) could argue the court merely interpreted an existing law, consistent with prior decisions.

In the California constitutional amendment banning same sex marriage, I think there are very few people who think the courts should just ignore the law and use their own conscience. Lots of people may have got behind the technical arguments lawyers found that the amendment should not be effective because they didn't like the amendment, but that's different.

You seem to be introducing a separate issue here too: majoritarianism. Believing that the law of the land is not majority rule is a whole separate thing from believing courts should make up laws. Arguments against Prop 8 at the California Supreme Court said the majority vote in that election wasn't enough to impose that law on everybody, not that it was valid law but just a bad one. And arguments in the pending federal court case are based on federal law, which it is well established is not affected by any vote among Californians.

BTW, what you call a "large margin" is called by opponents of Prop 8 a "small margin." It was 52.5% to 47.5% or 1.1 to 1. They point out that's not enough to amend the constitutions of most states or the US.

Bilski: business as usual

Posted Jul 4, 2010 21:41 UTC (Sun) by paulmfoster (guest, #17313) [Link] (1 responses)

Conceded: the date of stare decisis. I'm not a lawyer, and I was going by memory. Also conceded, the margin on Prop 8 in California. I don't live there anymore, so I don't follow the issue closely.

However, the issue you raise about majoritarianism in the Prop 8 case is beside the point. A bias against majoritarianism (or straight democracy) is one of the reasons the founders built the government the way they did. But the point I made is that opponents of Prop 8 are more than happy to see a court strike down the law (duly passed) *regardless* of the reason. Majoritarianism enters in here because California allows initiatives like this on its ballots, and considers the results of such votes as "law". Fine and good. But once the vote is cast, you can't then say that it's a bad law. The people voted, the matter is settled. If you want to change the law, then change people's minds about the issue and have another vote. Going to court to strike down a law legally passed, just because you disagree with it, is essentially asking the court to make law. It would really be the same thing if the California legislature passed such a law and opponents went to court to strike it down. Either way, the law (passed by the legislature or passed by ballot initiative) is the law. But people who disagree will always be happy to have the court strike down laws they don't like. Or make laws where legislatures fail to.

I can't speak to whether people, when questioned, would prefer courts not "make" law. Maybe a majority do believe that. But certainly a sizable minority *act* in a way that's contrary to that belief.

Bilski: business as usual

Posted Jul 5, 2010 16:23 UTC (Mon) by giraffedata (guest, #1954) [Link]

I brought up majoritarianism because I thought you were implying that a majority vote should control in spite of any law that says it doesn't. Now I think you just didn't hear my point that in Prop 8 court cases, people are merely asking courts to determine whether a majority vote was sufficient in this case. They aren't asking the courts to say the voters were wrong, merely that the procedures they followed are insufficient under the law to ban same sex marriage. If you're for same sex marriage and you believe the law is on your side, you'd be crazy not to go through the process to enforce that law.

In the state case, one of the arguments was that to ban same sex marriage requires a "revision" of the Constitution, whereas a simple majority vote is sufficient only for an "amendment." The Constitution uses those words and gives no help in telling the difference, so it made sense for the Supreme Court to consider whether a law had really been passed.

In the federal case, the claim is that the ban conflicts with another law (US Constitution) - an existing law with higher priority, so that there is in fact no ban. If nobody sues, though, the ban takes effect even if according to our system of laws, it shouldn't. That's a fair reason to sue.

Extending this to the broader discussion here, I believe most cases where people complain of courts making law and people using them for that purpose are just like this. A closer look at the actual legal process reveals a valid dispute and a fair path to resolution.

Bilski: business as usual

Posted Jul 7, 2010 11:10 UTC (Wed) by nix (subscriber, #2304) [Link]

Precedent has been important in deciding the interpretation of laws, and striking down really bad ones, since long before the US existed. (It is true that in the English legal system we were assisted here by our highest court also being a legislative chamber...)