Monday, June 22, 2015


EDITOR'S NOTE:  We are at the point more decisions can come any day even thought there is no calendar item announcing new decisions.  This is the week of decisions.  The last day will be next Monday.  I am waiting on three opinions  - Marriage Equality, Obamacare, and Redistricting.  In the Redistricting case Arizona Republicans are challenging a referendum they pushed for which sets up an independent committee to redistrict every 10 years.  After it did not work out the way they thought it would they sued to have it held unconstitutional.  Note guys this is Republicans challenging a referendum passed by the people, the Republicans themselves put on the ballot.


I strongly recommend that he and his staff read Kingsley v. Hendrickson.  It holds that reasonable force is not what the officers find to be reasonable force, but what would objectively be unreasonable force.


What makes the Marvel decision interesting is the dissent. I do not have the time nor interest in verifying the argument of the dissent - but it does not shock me.  I've always wanted to write a book on the issue raised by the dissent.  The question is really simple - can two private parties write a contract for royalties beyond the date the patent ends?  In the 60's the Court said no, and today based on the claim of stare decisis the Court found parties cannot enter into such private contracts.


The dissent notes the original decision in the 1960's was not based on the patent statute, but on an economic theory created by the court.  What makes the majority's opinion disingenuous is they repeatedly say Congress has had many opportunities to reverse the original Supreme Court ruling by amending the patent statute. 

But if the dissent is accurate the 1960's ruling was not based on the language of the statute but judicial fiat.  If this is true, where is the respect for Congress? 

If you want to understand just how disingenuous the Supreme Court can be, this is the opinion you should read.  You only need read the dissent.

To quote Justice Robert Jackson "I see no reason why I should be consciously wrong today because I was unconsciously wrong yesterday.”  Massachusetts v. Washington, dissenting opinion.

While Justice Jackson is by far my favorite Justice - for his candor and straight language -  just two years later he penned the Feres decision which followed the same reasoning he dissented against in Massachusetts.

All my long term readers know I am about process not result.  The result in Feres is correct - the problem is there is no congressional support for it.  The Court simply assumed the Federal Torts Claim Act did not apply to military personnel based on negligence by a military doctor because veterans receive benefits from a workman comp type system set up by Congress through the VA.  True enough -  but Congress messed  up by not excluding veterans.  It was for Congress to fix the law, not the Court.  Again I 100% agree with the result in Feres, but it is judicial activism.  The Court should have allowed Feres' claim to proceed, and rightfully so Congress would have fixed their mistake.

In the Marvel case it is the same thing.  The statute does not address the issue, so the Court devices an economic theory to justify its reasoning.  No it was for Congress to fix the problem and not the Court.

The Feres Doctrine went from a simple oversight by Congress, to something which was never in the opinion. Its progeny now provides that if a military air traffic controller causes an air accident the civilian victims cannot sue because the military is immune from suit.  There is nothing in the Feres decision which remotely comes close to this result.

But this is how judicial activism works.


Anonymous said...

Thiis afternoon, the Supreme Court added two additional opinion releases days. As a result, the Court is now scheduled to release opinions on Thursday (June 25), Friday (June 26), and Monday (June 29) between 10am and 10:30am ET. The Court still has seven opinions to issue, including its decisions on the high profile cases King vs Burwell and Obergefell vs Hodges (marriage case).

Anonymous said...

Interesting...btw, has the BISD straighten itself up (Z-Moves)? I hear everyone is anxious to find out and get moving, time is running out and nothing.

BobbyWC said...

BISD is a mess - now region one has downloaded the piece I did on the rules and how they violated the hiring policy and open meetings act - so maybe Region One sent then a letter But I do not know

Joe Rod decides who gets to know what and nothing gets past Joe Rod so very few people know what is happening.

Bobby WC

Anonymous said...

Folks are just waiting to survive The Zendejas Crusades,..demotions,moves, and the rise of the new powers in Admin and AA positions. Compadre system has a new term "talent" for this and that. The BISD folks are just waiting, any news to move on....dark roads ahead if TEA gets involved. Joe Rod may trigger TEA down if Board Actions keep getting tossed away after voting.