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Alice in wonderland

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The Supreme Court opinion in the Alice case?

I don’t like it.

At all.

It’s not that I don’t like the outcome. Okay, it is true that I don’t like the outcome. But what pains me more is the way it tortures two icons of court-made law that my Constitutional law professor (Paul Freund) seemed to conjure for us many times as he stood before us in Langdell Hall four decades ago. In my student mind, those two icons were: absolute clarity; and reversibility.

Clarity meant that for a decision to be worth much, it needed to lay out an important legal principle and do that clearly. Very clearly. Never mind that the opinion also took a leisurely stroll in the woods for 82 pages and 67 footnotes. As long as it found its way to that big unambiguous legal concept at the end of the trail. And finished the trek without miring itself in a mish-mash of undecipherable muck.

Clarity mattered, because it assured that what would be legally controlling going forward was an understandable, easy to apply rule. Not the varied mercurial politics and prejudices of the lower courts who would apply it.

The rule of law, man. Not the rule of men. That was the idea, by some accounts fundamental to the health of the republic.

Reversibility, the second icon, was the Court’s power to correct things after having lost its way in the forest. Occasionally that could happen if the Court had issued a line of misguided opinions that followed some dumb theory. To fix that, the Court had the right to abandon the mistaken route. Reverse course. Trudge the long way back to the fork in the trail where the wrong turn had been made. And then head briskly off in the better direction.

This was an important power, because there was no higher authority ensconced in another grand Greek-revival temple across the Potomac to set the Court back on the right path. The Court had to do that course reversal for itself. And in grand style sometimes did. To make things better. At least in the old days.

When it comes to these two talismanic tests for useful Court opinions, Alice fails. Both.

I know this because last Thursday on the 7:02 train into Boston, I wasted a few drowsy minutes trying to skim the opinion. It was tough sledding. Hard to follow. Didn’t hang together.

Then I noticed that I was holding the pages upside down.

So I turned the sheets right-side up and skimmed them again. No better.

For a moment, I wondered if rotating the pages sidewise would do the trick. Okay. I didn’t wonder that. Because I knew the words strung across the pages in whatever direction would still be impenetrable, defying me to make sense of them. I declined the challenge.

What I did manage to glean from my failed attempts were three puzzling concepts that hung in the fog as we rounded the turn into Somerville: “abstract idea”; “preemption”; “substantially more”. Almost meaningless individually, these three were strung together in an odd-ball elusive chain that was even less decipherable: You can’t get a patent for an abstract idea if your claim preempts its use, unless what you claim is substantially more than the abstract idea. (If the writer had understood patent claims, he would have written “substantially less”, of course, but now we are stuck with the wrong phrase it seems.)

Has Alice made the rule of law clear? No. The Court invites each of the courts below to follow its own whim, or its own dogmatic leanings, or worse.

Has Alice demonstrated the Court’s wisdom in sometimes reversing course? Hardly. Instead they chose to continue hacking through the underbrush of 150 years of vague doctrine looking for the light.

As we slid into North Station, I woke up from my snooze. But not from the nightmare.

Written by thinker

September 30th, 2014 at 11:17 am