Dramatic Reading of Judicial Opinions
posted by Kristen Osenga
Maybe out of fear that my students won’t find patent law as fantastic as I do, I make a point of telling them at the beginning of the semester that reading patent cases can be fun, exciting, and dramatic. I imagine they generally roll their eyes – although I try not to look. Their disbelief becomes palpable when I follow up by suggesting that they read the cases out loud. I know they won’t, but eventually we get to some point in the semester, when I jump up on a table (figuratively) and throw out my hand in a very Hamlet-esque, “Alas poor Yorick” pose (literally) and provide a dramatic reading of the more amusing portions of the day’s cases…
From the Phillips case:
What we have wrought, instead, is the substitution of a black box, as it so pejoratively has been said of the jury, with the black hole of this court. Out of this void we emit ‘legal’ pronouncements by way of ‘interpretive necromancy’; these rulings resemble reality, if at all, only by chance.
Eloquent words can mask much mischief. The court’s opinion today is akin to rearranging the deck chairs on the Titanic–the orchestra is playing as if nothing is amiss, but the ship is still heading for Davey Jones’ locker.
And some more…
From Eli Lilly: “Rather than attempting to distill an elixir from this intoxicating witches brew of enactment history, this court should interpret “material change” consistent with the overriding purpose of the Act.”
From Bilski: “Natural laws and phenomena can never qualify for patent protection because they cannot be invented at all. After all, God or Allah or Javeh or Vishnu or the Great Spirit provided these laws and phenomena as humanity’s common heritage.”
From Festo: “Like the proverbial balloon, a pinch on this backside of the law disrupts symmetry on the front side.”
From the perspective of a professor, I find these tidbits great. The students seem to be amused and start reading the cases carefully, looking for my next outburst. At least in my mind, it helps make patent law fun. But, then again, I’m biased.
But as a legal scholar and a language junkie, I’m not sure the value. Are the judges responsible simply frustrated creative writers? Are these excerpts supposed to function as rhetorical devices, and if so, are they effective? Or do they instead distract from the point that the author is trying to make? Is it too cute? Too inflammatory? Too obscure? Are we better off because the judges exhibit some creativity and personality, or would a plain explication of the law be more appropriate? And as a broader question – what is a “good” judicial opinion, not from a legal perspective but rather from linguistics and literature standards?
November 7, 2008 at 1:57 pm
Posted in: Intellectual Property, Law School (Teaching)
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Responses (1)
Ann Bartow - November 8, 2008 at 1:34 pm
I suspect your classes are a lot of fun! I have goofy teaching moments too, like when I do my farm animal impressions while teaching Acuff-Rose in Copyright (spurred by Souter’s mention of sheep and goats). But I think the lawyer in me would like to see less drama and clearer and cleaner writing by judges.
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