Volume 86, Issue 1
Articles
Of the three bedrock requirements of patentability—novelty, utility, and nonobviousness—the requirement of nonobviousness is the most recent legal development. Despite its status as a relative newcomer (by a margin of centuries), this requirement is considered essential to the functioning of the patent system—not only in the United States, but in every nation in the World Trade Organization. This Article takes up the intriguing history of the nonobviousness doctrine, from its antecedents in French and Venetian law to its incorporation into patent systems worldwide.
The case study of the nonobviousness doctrine supplies a launching point for the more ambitious task of investigating the general processes of legal change. This Article uses the history of the nonobviousness doctrine to reveal the extent to which legal doctrines traverse from nation to nation and the ways in which such doctrines subsequently converge or diverge. This history also sheds light on how legal documents, legal instruments, and judicial opinions can disguise actual change through clever attempts to parse language and utilize abstract logic, which mask shifts in policy or societal needs. The Article argues that lack of knowledge of why legal doctrine takes certain forms impoverishes our ability to apply and develop the law intelligently. Thus, while policy analyses of the law can provide needed insight into legal change, such analyses should move beyond purely positive descriptions of change and engage with normative questions.
Article III justiciability doctrines are often viewed as important checks on judicial overreaching, deriving their ultimate authority from the Constitution and its conception of the proper role of the Judicial Branch. This Article takes on the question of whether such doctrines are really so central or important to prevent unwanted judicial expansion. It concludes that such doctrines are in fact minor determinants of judicial behavior.
This Article finds that in contrast to other constitutional checks on the power of government, it is difficult to discern what intelligible purpose Article III justiciability doctrines actually serve. After undertaking an investigation into this question, Siegel argues that proposals by courts and scholars as to the purposes of justiciability doctrines are by and large implausible. Out of this thicket of confusion, Seigel proposes a new way to intelligently apply justiciability doctrines—to “reconstitute” justiciability into a purposeful restriction. This reconstitution would focus on whether justiciability doctrines actually enhance judicial function. Such a purpose-based view of justiciability would seek to limit the substance but not the form of judicial action. The Article argues that this approach would allow a relaxation of justiciability doctrines that would nonetheless prevent the Judiciary from exceeding its proper role in a democratic society.
Responses in See Also:
Book Reviews
This Review challenges the thesis and central claims of Ronald Dworkin’s new book, Is Democracy Possible Here?: Principles for a New Political Debate. In his book, Professor Dworkin posits that the quality of political discourse has severely deteriorated and calls for a renewal of reasoned argument based on shared values. Dworkin focuses specifically on the values of equality and liberty, which he claims are shared by most, if not all, Americans, as the starting point for a reinvigorated national political debate. However, Priel finds that Dworkin’s framework in fact implies the proposition that there can be no reasonable disagreement as to how we should resolve political issues (such as state-sanctioned same-sex marriage and the teaching of evolution in schools).
According to Priel, Dworkin seeks not argument but agreement with Dworkin’s conception of justice. Thus, Priel states that Dworkin’s purported project to encourage more reasoned argument based on shared values rings empty and false. Priel further questions Dworkin’s implicit assumption that Americans are in broad agreement about the primacy of liberty and equality as ethical values to the exclusion of almost all others. He finds unpersuasive Dworkin’s claim that all political debates are essentially debates about conceptions of liberty and equality, as Dworkin has defined them. Priel criticizes Dworkin further for not considering the possibility that his critics are making serious arguments and for selecting only the weakest counterarguments to test his position. As Priel understands Dworkin, Dworkin believes that those who have arguments contrary to Dworkin’s have not properly considered what the fundamental values they hold really are. Priel finds this elitist and inward-looking position to be contrary to the openly stated project of bringing reasoned argument back into America’s political climate.
Notes
In the modern administrative state, agencies increasingly rely on scientific advisory committees as a cost-effective way to bring outside scientific expertise to bear on agency decision making. However, the success and legitimacy of these committees requires that they remain politically neutral as well as financially disinterested in the outcomes of agency rule making. This Note explores the question of how selection procedures may be used to maintain the integrity of scientific advisory committees by analyzing selection procedures for the Science Advisory Board (SAB) of the Environmental Protection Agency.
This Note finds that current SAB selection procedures are inadequate to protect the neutrality of the SAB, and advocates that the SAB require fuller disclosure of information from its prospective panel members, that the SAB expressly use this information to balance panels not only for scientific expertise but also for institutionally driven viewpoints, and that the SAB implement more objective and transparent selection criteria.
This Note tackles questions that arise at the intersection of traditional property rights in selectively bred animals and new possibilities created by the technology of “somatic cell nuclear transfer” (SCNT)—i.e., the technology of cloning. Traditional remedies that might be available to protect an owner from or compensate an owner for unauthorized use of animal DNA (such as actions for conversion or trespass to chattel, or patent protection) are considered and found inadequate to secure previously protected interests. This inadequacy of remedy suggests that advances in cloning technology threaten to undermine traditional property rights, and the Note concludes that the law should be adapted to recognize a property right in the DNA of selectively bred animals.
