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Beginning a Discussion of the Supreme Court Term






Another term of the U.S. Supreme Court has come and gone. This year, though as in most years the court issued a lot of decisions that are, in their own several ways, fascinating, is not a year in which THE ONE -- the big case, is immediately obvious. If any one of them is THE stand-out case, the matter will be determined by the jurisprudential historians of posterity.
I will leave out of my discussion here and in the next two days the decision regarding Argentina's bond default and the hold-out's recourse, because I have had something to say of that one already.


This leaves the following five decisions of great importance. Simply listing by alphabetical order they are:





*Alice Corp. v. CLS Bank -- patentability
*Halliburton v. Erica P. John Fund -- class action
*Sebelius v. Hobby Lobby -- Obamacare implementation
* Susan B. Anthony List v. Driehaus -- free speech
*Town of Greece v. Galloway -- establishment clause.
I'll say something about Alice Corp. in this entry, then I'll couple Halliburton with Sebelius tomorrow, and close with SBA List and Greece on Saturday.*


Alice Corp. was one of a series of recent cases in which SCOTUS has sought to roll back what is patentable. I applaud this impulse. Too many matters that ought to remain within the realm of common sense and adaptability have been fenced in, becoming someone's exclusive reserve through the exercise of state power.


Bernard Bilski may have placed that extra straw on the back of the patentability beast when he decided to patent the idea of hedging against price increases in energy commodities. The Supreme Court said in 2010 that this was too abstract an idea, reaching back decades for the formulations of the doctrine making that a no-no.


Since then the court has also found, in MAYO v. PROMETHEUS, 2012, that a medical procedure that involves the direct application of a law of nature [by measuring metabolites in the blood stream in that case] cannot be patented. The "law of nature" and the "abstract ideas" exclusions are generally considered in the same breath.


That was followed by another decision in the medical world, MYRIAD GENETICS (2013) where the court struck down claims to ownership of particular isolated strands of DNA. It wasn't so much a law of nature as nature itself that one of the parties sought to corral there.


So ALICE presses forward with this don't-fence-me-in trend. One of the positives here: only one substantive opinion. Though there was a concurrence  [Sotomayor, Ginsburg, Breyer] it didn't say much, merely signaling that those Justices would have preferred the court's opinion to focus on the word “process” in the statutory language, and wanted to make it clear that business methods are not the sort of “process” intended there. Still, the judgment is unanimous and there is nothing akin to the contentious six opinions, with all sorts of differing substantive views all over the jurisprudential map (and one set of “reflections”) produced by the appeals court below when IT last looked at ALICE. 


Tomorrow, on to class actions and corporate religion.


* Though it was argued as Sebelius, after Kathleen Sebelius, HHS Secretary at the time of the arguments, this case upon decision carried the name of her successor. It had become BURWELL v. HOBBY LOBBY. I'll try to remember that in forthcoming entries.



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