5-4 in favor of full employment for litigators.

Perusal of this term’s rulings by the Supreme Court (or just the news-bites about them) informs that unanimity was less likely than predictability as to which block of Justices would take sides against the other on a given issue.  We’ll call that the ‘hotness of the button’ measure of scrutiny.

Another prevailing measure was the Court’s striking of mechanical rules, absolutes, and per se standards.  That may be consonant with the idea of ‘let the Judges judge.’  A cynic’s view is that, without clearly-drawn rules or by striking precdents that set mechanical tests, these judges are more free to inflict their own view on our cases.  It becomes harder to urge a judge to rule, when clear precedent states how to decide, than when the High Court has fuzzied up the standards.

In the patent cases decided this term, strict rules, set by the COA created by statute to establish precedent in patent cases, were made less strict, or stricken, e.g., Mercexchange and Teleflex.  Largely, the Justices negated the old rules, and replaced them with, well, depends on who you ask.  Did the Supremes decide anything, or were they against principles?  Consider these (unfairly snipped) passages from the patent docket.

They considered “the applicability of licensee estoppel under these circumstances.”  Medimmune, and whether, “under all the circumstances …there is a substantial controversy …of sufficient immediacy and reality to warrant” court intervention. Id.  “Under these circumstances, it would be imprudent for us to decide whether the District Court should, or must, decline to issue the requested declaratory relief.”  Id.    They re-conceived the Graham v. Deere inquiries, noting that, “While the sequence of these questions might be reordered in any particular case, the factors continue to define the inquiry that controls.”  KSR.  Noted too, was a need to ask “whether the facts of a situation require it to issue an injunction.”  Mercexchange.

In my experience, precedent that revolves upon “factors” and “circumstances” and “questions,” results in tossing everything to the jury or to a trial judge to decide.  Clear, well-delineated, rules of law and standards of proof => those tend to end district court cases, and to decide appeals – on the law, not on varied “factors” or due to deference to “clear error” review on appeal. 

If you were older, or younger, then you would remember the “Word of the Day” on Pee-Wee’s Playhouse.  If you recall, when anyone said it, everyone had to “scream real loud.”  It’s a contest.  What was the “Word of the Term”?  IMO, the word was “plausible” as used in the cases on sufficiency of pleadings, but “circumstances” may be the precedential term that makes litigants “scream real loud.”