Concurring Opinions » David Opderbeck

Christianity, Law, and Contracts

David Opderbeck — Fri, 07 Nov 2008 19:25:56 +0000

With all the chatter recently about Sarah Palin and the religious right, and Barack Obama and Jeremiah Wright, it’s all too easy to charicature the relationship between law and religion in general, and law and Christianity in particular. A splendid new book edited by John Witte and Frank Alexander, Christianity and the Law: An Introduction (Cambridge University Press 2008), seeks to recover the deep and nuanced connections between Christian social theory and Western jurisprudence. Unlike many polemical works written by today’s battling theonomists and strict separationists, Christianity and Law doesn’t dwell on defining founding myths about America and its original status as either a religious “city on a hill” or a walled garden in which enlightened rationalists could feel safe from the Church. Most of the essays in Christanity and Law dig deeper into the Jewish, Roman and medieval roots of Christian jurisprudence.

Among the many gems uncovered in this excavation is Harold Berman’s chapter “The Christian Sources of General Contract Law.” Berman summarizes those roots as follows:

In subsequent centuries, many of the basic principles of the canon law of contract were adopted by secular law and eventually came to be justified on the basis of will-theory and party autonomy. It is important to know, however, that originally they were based on a theory of sin and a theory of equity. Our modern Western contract law did not start form the proposition that every individual has a moral right to dispose of his property by means of making promises, and that in the interest of justice a promise should be legally enforced unless it offends reason or public policy. Our contract law started, on the contrary, from the theory that a promise created an obligation to God, and that for the salvation of souls God instituted the ecclesiastical and secular courts with the task, in part, of enforcing contractual obligations to the extent that such obligations are just. (Christianity and Law, at 132).

This broadly social notion of contracts was modified, Berman notes, during the Puritan era. The Puritans’ strong notion of total depravity made them less willing to place the authority to determine which obligations are “just” in the hands of a magistrate. Moreover, the Puritans’ emphasis on order inclined them to seek the meaning of contractual documents in the literal words of the document rather than in an overarching contractual hermeneutic of justice. However, even for the Puritans, “private” contracts were social obligations within the all-inclusive fabric of God’s covenantal relationships with people. Private contractual relations were not really “private” — they were covenantal relations between people who were also bound in covenantal relation to God. As Berman notes,

the Puritan stress on bargain and on calculability (”order”) should not obscure the fact that the bargain presupposed a strong relationship between the contracting parties within the community. These were not yet the autonomous, self-sufficient individuals of the eighteenth-century Enlightenment. England under Puritan rule and in the century that followed was intensely communitarian. (Id. at 140).

In the Eighteenth and Nineteenth Century Enlightenment, these theories of contract based on justice and covenant were secularized. Justice and covenant were replaced with “the inherent freedom of each individual to exercise his own autonomous reason and will, subject only to considerations of social utility.” (Id.) These Enlightenment ideas “broke many of the links not only between contract law and moral theology but also between contract law and the comunitarian postulates which had informed both Catholic and Protestant legal traditions.” (Id. at 140-41).

It is a shame, I think, that contemporary Christian legal theory — at least that which we hear about during major elections — seems to focus so heavily on notions of individual freedom to contract that are more post-Christian than Christian. Religious people may feel they have only two options: the current prevailing secular legal theory of contracts, which is strictly realist and pragmatic and elides any notion of higher values, and the religious right’s libertarian view of contract, which elevates the individual far above the community. I agree with Berman: ”[w]e may learn from history . . . that there is a third possibility: to build a new and different theory on the foundation of the older ones.” (Id. at 141).

Bilski and the Drivers of Patent Law

David Opderbeck — Wed, 05 Nov 2008 23:18:47 +0000

The Federal Circuit’s en banc opinion in Bilski is shaking up patent law with respect to business method patents. Some commentators suggest that Bilski does away with business method patents. Others suggest that clever claim drafting will circumvent most of the restrictions imposed by the opinion. In many fields not directly addressed in the opinion, including biotechnology, there is considerable uncertainty about what the opinion means.

I think the “who the [expletive deleted] knows” crowd is right. The majority’s “machine-or-transformation” test seems ill-suited to an age of digital and biological machines. Is a biological “DNA nanocomputer” a machine? If so, why is a human mind that comprehends a business method not also a “machine?”

In any event, an interesting dynamic underlying the various concurrences and dissents is how different members of the Federal Circuit view the primary drivers of patent law. Some of the judges seem to emphasize legislative history; others, Supreme Court precedent; and others, technological change. This chart summarizes how I think this dynamic plays out in the various opinions:

Making History

David Opderbeck — Tue, 04 Nov 2008 17:31:35 +0000

This morning I participated in history. I walked into the Midland Park, New Jersey Public Library, the polling site for my district. Three elderly ladies staffed the table where I signed the voter log and received a paper ticket indicating my eligibility to vote. I stepped up to the voting machine (there was no line) and handed another elderly attendant my ticket. She threaded the ticket onto a long string full of tickets. I walked through the curtain and paused for a moment to consider the privilege I was about to exercise. In a moment I would press a button to submit my vote for (arguably) the most powerful political job in the world. The campaign had been fierce and both sides offered wonderfully path-breaking choices — a black man for President or a woman for Vice President. There were no guns. There was no blood, no fear, no coercion. Just me and some buttons. I made my choices and left in peace. History won’t remember my vote, but it will remember this day.

Landmark Patent Damage Awards?

David Opderbeck — Mon, 03 Nov 2008 19:44:40 +0000

Thanks for this opportunity to blog here at Concurring Opinions. On the eve of the Presidential election, I’d like to start with something that’s surely high on everyone’s priority list: patent reform. Well ok, it might not rank up there with the economy and the war, but some of us find it interesting.

Much of the debate about patent reform focuses on two related concerns: (a) the size of awards, particularly for “component” patents; and (b) non-practicing entities or “patent trolls.” This post discusses recent “landmark” awards that are often cited as examples of a system that is spinning out of control.

A recent PriceWaterHouseCoopers study widely cited by reform advocates suggests an alarming trend towards $100 million-plus verdicts in recent years. A closer look at the PwC study, however, suggests that things might not be so dire as reform advocates suggest. In fact, most of these “landmark” cases were extraordinarily complex, long running disputes by fierce market competitors involving multiple patents and other claims.

For example, the $133 million patent verdict in favor of Rambus, Inc. against rival memory and chip maker Hynix, Inc. was part of a corporate war that involves 59 claims from 14 Rambus patents as well as antitrust and other claims. Similarly, the Alcon v. Advanced Medical Optics $121 million verdict was awarded in one of four patent infringement cases brought by Advanced Medical against Alcon, leading competitors in the medical device and pharmaceutical products industry. The dispute eventually was settled in a package deal for a lump-sum payment by Alcon of $121 million.

In some of the cases, the post-trial and appellate processes changed the result. The largest and most discussed award, a $1.5 million jury verdict against Microsoft in favor of Alcatel-Lucent on a patent relating to MP3 audio technology, was overturned by the trial court on post-trial motions. And in Verizon v. Vonage, the federal circuit vacated the judgment of infringement with respect to one of the three patents in suit based on an erroneous claim construction, and vacated the damage award entirely, because the jury did not allocate the award among the three different patents. The Federal Circuit also vacated the finding of infringement, and therefore the $115 million damage award, in Finisar v. Directv. Thus, three out of the six $100 million-plus damage awards from 2005 to 2007 involving the computer and telecommunications industries were overturned.

My verdict: the rhetoric about runaway patent verdicts is overblown.