May 14, 2008
I've been working a bit with the patent statute, and it struck me how these statutes -- without that much detail - are probably from a bygone day. They represent, of course, an enormous delegation of authority to the courts to "flesh out" the law. The Sherman Act, perhaps is the most famous of this broad form of law-making grant.
Is it a good development? I'm not sure. Certainly, the amount of ambiguity in the law is lessened when there's a text to look at, rather than only the common law to find and/or predict. Overall, I'm sure that represents a positive in terms of social cost. On the other hand, there's a sort of, I don't know, lack of respect that micromanaging reflects: a lack of trust by Congress that the courts can get it right? Perhaps that message is not implicit, and it's only the benefit that drives Congress? I don't know.
Anyhow, my digging around in the Patent Act made me ponder this issue, again. Thoughts?
I'm on vacation next week, and so will see you all soon.