Thursday, May 08, 2008

Patent Chaos and "Dorf's Law"

Writing in the NY Times on Tuesday, Adam Liptak reported that, as a result of analysis by GW Law Prof John Duffy, the courts may have to "undo thousands of patent decisions concerning claims worth billions of dollars." Duffy's analysis is excellent, but I want to suggest here that the bigger the problem is, the smaller the problem will be. How's that? Let me explain.

In a little-noticed provision of a 1999 appropriations measure, Congress changed the way that patent judges of the Board of Patent Appeals and Interferences are appointed. As a result, all such administrative judges appointed since 2000 have been named by the Director of the Patent and Trademark Office, but the Director is not the Head of a Department (since he serves under the Commerce Secretary). Thus, these judges were appointed in violation of the Appointments Clause of the Constitution, Art. 2, sec 2, cl. 2. And thus, cases on which they have sat are invalid. Duffy argues that because of the breadth of standing the Supreme Court has permitted in Appointments Clause challenges, and the automatic nature of the remedy, there is no good way for the government to avoid this result---although prospectively, Congress can vest appointment authority of the patent judges in the Commerce Secretary.

I would argue that the government may indeed have a way out, which I'll call "Dorf's Law." Dorf's Law states that courts do not provide a remedy for really really big constitutional problems where doing so would create chaos. One example of Dorf's Law in the United States may be McCleskey v. Kemp, in which the Supreme Court refused to invalidate Georgia's death penalty despite evidence showing with statistical significance that the race of the victim was a determinative factor in whether a defendant was sentenced to death. The Court feared that invalidating the death penalty on this basis would, among other things, require acknowledging that racial considerations pervade the criminal justice system, and the Justices couldn't imagine invalidating the entire criminal justice system. As a result, Justice Powell wrote a majority opinion that is, to put it kindly, innumerate. It says (nonsensically, for anyone who understands statistics) that proof that race infected death penalty decisions in Georgia in general doesn't count as proof that race infected the death penalty decision in any particular case. (This is nonsense because the Court was NOT saying that there is a higher persuasion burden where statistical proof is used, nor was it saying that there was something about McCleskey's case that made it atypical.)

As McCleskey illustrates, it's possible (perhaps likely) that examples of Dorf's Law will not be expressly acknowledged as such. Towards the end of his opinion, Justice Powell does candidly say that the Court can't give McCleskey the relief he wants because doing so would open the floodgates, but he offers this as an "additional concern" that is meant to bolster his decision nominally based on the statistical (non)argument.

My favorite illustration of Dorf's Law is the Supreme Court of Canada's decision in the Manitoba Language Rights Case. Manitoba was obligated to enact all laws in French and English, but from 1890 until 1985, the Province only enacted laws in English. The Supreme Court had little difficulty finding that practice invalid, but balked at the suggestion that as a result, all laws in Manitoba since 1890 were null and void. Such a legal vacuum, the Court said, would itself violate the rule of law. Thus, the Court continued in effect the prior laws for a temporary period while Manitoba translated and re-enacted its laws.

Dorf's Law suggests a legal strategy for the government in the patent imbroglio: Emphasize the utter waste and chaos that would ensue from declaring void all the decisions rendered by the improperly appointed patent judges. The courts (that's the Article III courts that would adjudicate this issue, presumably including, eventually, the U.S. Supreme Court) could either follow the McCleskey route and make up some nonsensical reason why the Appointments Clause isn't really violated, or they could follow the (more honest) Manitoba route and say simply that the remedy is too costly. This is a risky strategy primarily because the chaos that would ensue from invalidating eight years worth of patent decisions isn't quite on the scale of the chaos of having no law at all in an entire Canadian province or no criminal law in the United States.

Still, the Supreme Court did something a lot like this once before in a context that looks quite similar. In Northern Pipeline Co. v. Marathon Pipe Line Co., after finding that bankruptcy courts had been improperly constituted, the Court decided that its ruling only applied prospectively, and gave Congress a few months to fix the problem. In the ensuing years, the Court has ruled out pure prospectivity, but if there's enough at stake, look for something like it to re-emerge in the patent cases.

Posted by Mike Dorf

18 comments:

Adam P. said...

I think this ties into a somewhat similar issue with the NLRB. Right now, there are only 2 members of the NLRB (technically, a "Chairman" and a "Member"). Some have argued that decisions by this board are not legal under the statute. But what is the remedy? Basically, a Court would have to either 1) leave a vacuum in labor law (does the ALJ go right to the Ct of Appeals?) or 2) order the Senate to confirm people. Another contemporary example of Dorf's law.

Caleb said...

Could Congress merely pass a law retroactively granting head of department status to the person who appointed the patent judges? If they acted fast enough, I imagine they could have it done before SCOTUS had to deal with the question?

Trevor Morrison said...

Isn't the relevant manifestation of Dorf's Law for these purposes the de facto officer doctrine, per Ryder v. United States?

Jeff said...

But the conservatives on the Court in the past have really disliked pure prospectivity, and one can expect Roberts and Alito to share this view. (Though maybe Kennedy would go along--you probably know more on this than we do.) Is there some sort of way that a single circuit court decision could decide all this? If the D.C. Circuit or Federal Circuit rules in favor of pure prospectivity, does the precedential value of that in effect settle basically all of the claims? If so, look for the Supreme Court to deny cert on any appeal from those circuits. That way it can both avoid the chaos and avoid having to endorse pure prospectivity.

Jamison Colburn said...

I think this is a real candidate for explaining Northern Pipeline. What a disastrous opinion. But doesn't Dorf's Law need a little "lemma incorporation" for something like Brown II?

egarber said...

One of my initial thoughts was Brown and Brown II, which on the surface might appear to violate Dorf's law.

However, I think there might be several distinctions that could be meaningful.

1. When we're talking about substantive individual rights, maybe it's different -- vs. a technical / procedural error.

2. Maybe school segregation "renews" the violation in real time each day the structure remains, in roughly the same way a class action suit offers a remedy to large groups of people, even if they haven't individually suffered (yet) from a defective product. With a procedural blunder, there's only one point in time where a violation occurs; there's no weight of constant injustice carried as a burden into the future.

3. Or maybe desegration orders don't amount to "chaos" in Dorfish.

Hey Mike, are there exceptions like these to Dorf's Law?

egarber said...

3. Or maybe desegration orders don't amount to "chaos" in Dorfish.


Nice spelling. How about DESEGREGATION.

Michael C. Dorf said...

One thought re Brown II: We can read "all deliberate speed" as the Court's bow to Dorf's Law. An order of the form "desegregate now" (such as the Court actually issued in Cooper v. Aaron and more broadly in the Green case in 1968) might well have resulted in chaos, or at least bloodshed.

JohnTaylor88 said...

It says (nonsensically, for anyone who understands statistics) that proof that race infected death penalty decisions in Georgia in general doesn't count as proof that race infected the death penalty decision in any particular case. (This is nonsense because the Court was NOT saying that there is a higher persuasion burden where statistical proof is used, nor was it saying that there was something about McCleskey's case that made it atypical.)


The way I read McCleskey is that you need more than statistical proof to show a litigant's case is typical and whatever else you need would establish typicality on its own, so the statistical proof itself is worthless. But perhaps I misremember the case.

I find it odd that you avoid mention of Johnson v. McIntosh, the first case in most Property casebooks. I also find offensive that you name this Dorf's Law, when your point is a basic one that every law professor I had in law school embraced.

Hamilton said...

Completely ignoring the real issue at hand, I'd like to defend calling this thing "Dorf's Law" based on something in a recent New Yorker article by Malcolm Gladwell. The rule mentioned in that article is that "no scientific discovery is named after the original discoverer" which is called Stigler's law, after having been discovered by Robert K. Merton. Rules/laws are never named after the person who thought them up (you didn't really think that Pythagoras was the first guy to think of the Pythagorean theorem, did you?)

Michael C. Dorf said...

Offended? Really? I could see how someone would say something like "there goes that egotistical Dorf guy again, taking credit for every self-evident idea as though he were the first person ever to have an original thought. What a jerk!" But how could one be offended? And anyway, isn't it obvious I was joking about calling this "Dorf's Law?" If I really wanted to take credit for someone else's idea, I would rename Einstein's principle of relativistic motion Dorf's Law. Or perhaps johntaylor88 was himself joking in purporting to be offended?

Mortimer Brezny said...

I could see how someone would say something like "there goes that egotistical Dorf guy again, taking credit for every self-evident idea as though he were the first person ever to have an original thought. What a jerk!"

You know, with such a healthy self-concept and robust sense of humor, you would make for a terrible BigLaw associate.

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