February 10, 2007
Interesting Article on Future State Approaches to Death Penalty Legislation
There's a thoughtful take on the views of the death penalty held by two similarly situated governors here. The back-and-forth in the courts as to the constitutionality of these statutes is, of course, well known, but now that the politicians have control...
California Sex Offender Statute Not Subject to Retroactive Application
A federal district judge held that "Jessica's Law" -- a ban on sex offenders living within 2000 feet of certain places where children are likely to go -- cannot be applied retroactively. The opinion is from Judge Karlton, apparentl from the Eastern District of California (I didn't know it had such a thing, but that's what Google telsl me), but I can't find it on line. But, an article about it is here.
February 8, 2007
What's Up in Congress?
Here's a taste of what's up in Congress:
Want to learn more about who got elected in November '06? Read here.
The procedural issues underlying the debate over the lack of debate over the nonbinding Iraq resolutions can be read about here.
And, sadly but finally, it remains okay for lobbyists to hire family members of staffers or members of congress to lobby, as you can read about here. I guess that saves tax dollars, since bills can be drafted over morning coffee. Speaking of which...
February 7, 2007
Should Patent Statutes be Interpreted Differently than Others?
Below I posited that the Patent Act ought not be interpreted with the same "what did the words mean at the time" vigor that is applied to other statutes. Over at patently-o, Dennis Crouch says I'm wrong because all statutes are forward looking.
Yes, that's true.
But what I said was that the patent act, unlike I think every statute except the copyright act, jurisdicitonal statutes, and a few others, arises out of the text of the constitution itself and, I submit, is qualitatively different in "how" forward looking it is when compared to other statutes. The context and connection to the constitution matter. It's not a statute about parking tickets, and how "vehicle" in a statute defining illegal parking enacted in 1952 ought to be construed to cover those Segways.
I do think it matters to interpreting at least some of the Patent Act that the words of the statute flow from the constitution -- the words in the statute that originate from or reflect what an "author" is and what "useful arts" are, for example. I don't pretend to have studied the issue, but surely the meaning of those words is affected by their emination from the constitution. (Yet, I know that the diversity statute, though using precisely the same words as the constitution, has been interpreted differently (constitution doesn't require complete diversity; diversity statute does), and so that cuts against me, but I do believe there's something there. Perhaps the cases where strict diversity was originally read into the statute may lead somewhere on this whole point; perhaps not.)
And I think the other point, the forward-lookingness if you will, of the statute is what really sets it apart. I find it impossible to palate the proposition that the words of the patent act should mean what they meant in 1793/1860/1952/etc. That just boggles my mind, and would, I think, lead to awful results and extended litigation over meaning. (See below for a silly example.)
Finally, I'm bored so let's have some fun and test this whole thing. What if we shortly conclude that there's really no such thing as "matter" at all but it's just vibrations of strings, and the 'reality' we pereceive is only a manifestation of these vibrations that we cannot themselves perceive. Does the conclusion that there is no "matter" as Jefferson understood the term mean nothing has patentable subject matter, since none of it is "matter" as that phrase was used back in Jefferson's day?
Anyhow, let's not lose the forest from the trees: Duffy's right in that if you're going to apply textualism to an old statute, you'd better find some old dictionaries and pay close attention to what they say. It doesn't seem like the PTO did that here.
February 6, 2007
My Take on Duffy's Post
I haven't thought this through as well as he has, but here's my thoughts. Note that I think we end up at the same place, but through very different paths.
There's something quite wrong, i submit, with applying to the Patent Act the approach to textualism he describes. True, a textualist would say that what the goal is is to determine the meaning of the words, in context, at the time the legislature enacted them.
Why doesn't that black letter approach work here, in my view? Well, after all, the Act was written with innovation in mind, and stems directly from Article 1, clause 8's grant to Congress to promote the Useful Arts. It would be strikingly odd if the words in the Act were construed only to cover those things literally embraced by the words 200 years ago, given the constitutional underpinnings of the statute and the context in which it was enacted. I realize that the norm is to give contemporary meaning, and don't quibble with that in the abstract, but it seems to be quite a strange thing to apply to a statute whose purpose is to look forward. Just because something wasn't "matter" in 1800 ought not control that meaning today, in other words.
More fundamentally, and this is more a quibble with changing interpretive approaches generally than with Professor Duffy's fine piece: why does the interpretive tail wag the meaning dog? Put in more fancy words: why is it that textualism should control how a statute written in the 1860's (and recodified in 1950), should be construed when at the time it was written textualism did not exist? Put bluntly, why is it that because a majority (probably) of the court has changed how courts should interpret statutes, we apply that new approach to statutes that were written at a different time, when different norms applied and so different understanding as to how the words would be interpreted applied? To be truly textualist, ought we not look at what way applied back then? I do not think it likely that Jefferson when writing those words thought, "someday the Supreme Court will (a) be the final arbiter of meaning (Marbury wasn't decided til two decades later) and (b) the court will look at what these words, today, mean to me."
Again, I think we end at the same place, but I don't think that we ought to limit the terms of 101 to what the terms meant in 1793, 1866, or even 1950.
John Duffy on 35 USC 101
Over on Patently-o, Professor Duffy has posted on the supreme court oral argument on patentable subject matter and Section 101. He addresses which dictionary a textualist would use, and why, and broader issues.
Goings on in the Legislatures and State Statutes
With many of the state legislatures in session, there were a number of interesting bits:
The use of computers for personal purposes is going to be restricted because of a (what else?) sex scandal, according to this article.
States, according to this article, are not happy with Congress' 2005 effort to require a uniform drivers license. Part of it's the $11b cost; part of it's privacy (there's going to be one network with everyone's driver's license info on it... hooray?
Same Sex civil union laws are creating child custody issues, including some on the cutting edge according to this article.