Statutory Construction Blog

Oral Arguments in Bilski Under 35 USC 101

Does section 101 permit patenting of "Business Methods"? The Federal Circuit held oral argument over the meaning of this fundamental statute, which you can find here. An article is here.

I understand the political arguments behind restricting the coverage of the statute, but the opinion which led to the current broad understanding (or, at least which confirmed the scope of the statute) isn't that old, and Congress hasn't changed the statute, and there was an enormous hue and cry about the earlier decision, State Street Bank, so....

Your Blogger: Influencing the Law

One of the things that drives me nuts about academia (I practiced for 14 years before coming to teach) is the belief that "law" and "lawyering" are somehow beneath it. You see it in various ways - from a "why should I modernize my casebook to reflect the fact that Shelley's Case was abolished" to "I won't write things for judges and lawyers." My view is quite the opposite: I'm here to train lawyers, not law professors. Many in academia are on that side of the divide, but it's certainly a divide.

Sooo... I was happy when our book, Modern Statutory Interpretation, was just cited in a judicial opinion - the first. It's not on-line yet, but I think it will be here, and it's US v. e-Gold, by Judge Collyer. It's a small snippet, but it was quite gratifying: "see also Linda D. Jellum & David Charles Hricik, Modern Statutory Interpretation: Problems, Theories, and Lawyering Strategies 137 (2006) (stating that "[w]ords in a statute should generally be given their common, ordinary, and accepted meaning")."

I won't rant too much about that other issue -- the division -- since it probably belongs on another blog, but I can't resist: why is it that we teach future interests in property when the vast majority of lawyers won't use them, and there are certainly other topics that teach the same skill sets? Why are our civil procedure books laden with discussions about personal jurisdiction, and so little on summary judgment and discovery? Why do the tort books focus on the common law when so much of tort law has become influenced, if not controlled, by statutes?

Okay, I ranted.

Interesting New Piece ON LINE about Severability

Severability as Judicial Law Making is available here, and was published at 76 Geo. Wash. L. Rev.  639 (2008), and is by David H. Gans.  I was intrigued by this issue when we wrote our stat law book, and his introduction raises some of the issues we ponder:

What is a court doing when it severs the invalid portions of a statute? Is it merely issuing a *640 savings construction or is it rewriting the statute? If the latter, is severability compatible with separation-of-powers principles? How should a court decide whether or not to sever? Should legislative intent be the touchstone? The academic literature, for the most part, does not adequately answer these questions. The literature on the topic is surprisingly limited, with only a handful of articles addressing the doctrine.

New Article of Interest

Although not on its webpage, 32 Wm & Mary Evntl. L. & Pol'y Rev. 427 has an interesting piece on interpreting the "stealth provisions" of the Endangered Species Act by Madeleine June Kass. (Notice that I FIRST told you it wasn't on line, before noting it was interesting!)