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.

A Story About Coleridge

This is a quote from a memoir by Dorothy Wordsworth, reflecting on a trip she took with two famous poets, her brother, William Wordsworth, and their similarly gifted companion, Samuel Taylor Coleridge. We sat upon a bench, placed for the sake of one of these views, whence we looked down upon the waterfall, and over the open country ... A lady and gentleman, more expeditious tourists than ourselves, came to the spot; they left us at the seat, and we found them again at another station above the Falls. Coleridge, who is always good-natured enough to enter into conversation with anybody whom he meets in his way, began to talk with the gentleman, who observed that it was a majestic waterfall. Coleridge was delighted with the accuracy of the epithet, particularly as he had been settling in his own mind the precise meaning of the words grand, majestic, sublime, etc., and had discussed the subject with William at some length the day before. “Yes, sir,” says Coleridge, “it is a majesti

Five Lessons from the Allegory of the Cave

Please correct me if there are others. But it seems to be there are five lessons the reader is meant to draw from the story about the cave. First, Plato is working to devalue what we would call empiricism. He is saying that keeping track of the shadows on the cave wall, trying to make sense of what you see there, will NOT get you to wisdom. Second, Plato is contending that reality comes in levels. The shadows on the wall are illusions. The solid objects being passed around behind my back are more real than their shadows are. BUT … the world outside the the cave is more real than that — and the sun by which that world is illuminated is the top of the hierarchy. So there isn’t a binary choice of real/unreal. There are levels. Third, he equates realness with knowability. I only have opinions about the shadows. Could I turn around, I could have at least the glimmerings of knowledge. Could I get outside the cave, I would really Know. Fourth, the parable assigns a task to philosophers

Searle: The Chinese Room

John Searle has become the object of accusations of improper conduct. These accusations even have some people in the world of academic philosophy saying that instructors in that world should try to avoid teaching Searle's views. That is an odd contention, and has given rise to heated exchanges in certain corners of the blogosphere. At Leiter Reports, I encountered a comment from someone describing himself as "grad student drop out." GSDO said: " This is a side question (and not at all an attempt to answer the question BL posed): How important is John Searle's work? Are people still working on speech act theory or is that just another dead end in the history of 20th century philosophy? My impression is that his reputation is somewhat inflated from all of his speaking engagements and NYRoB reviews. The Chinese room argument is a classic, but is there much more to his work than that?" I took it upon myself to answer that on LR. But here I'll tak

Jamesian Philosophy Refreshed

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