Home / General / Knowing Your Audience Is Mostly NERDS

Knowing Your Audience Is Mostly NERDS



Scalia’s decision to give Kimble v. Marvel Entertainment to Kagan was inspired:

  • “The parties set no end date for royalties, apparently contemplating that they would continue for as long as kids want to imitate Spider-Man (by doing whatever a spider can).”
  • “Patents endow their holders with certain superpowers, but only for a limited time.”
  • “To the contrary, the decision’s close relation to a whole web of precedents means that reversing it could threaten others.”
  • “What we can decide, we can undecide. But stare decisis teaches that we should exercise that authority sparingly. Cf. S. Lee and S. Ditko, Amazing Fantasy No. 15: “SpiderMan,” p. 13 (1962) (“[I]n this world, with great power there must also come — great responsibility”).”

Substantively, the case is another example of the disagreement between Scalia and Thomas about the value of stare decisis. While I’m dubious about the idea of “superpowered” precedents in general, in this case — involving statutory interpretation in an area of law in which Congress has been very active and contract law — it makes a certain amount of sense. I also thought Kagan’s discussion of the implications of stare decisis was interesting:

Respecting stare decisis means sticking to some wrong decisions. The doctrine rests on the idea, as Justice Brandeis famously wrote, that it is usually “more important that the applicable rule of law be settled than that it be settled right.” Indeed, stare decisis has consequence only to the extent it sustains incorrect decisions; correct judgments have no need for that principle to prop them up.

I don’t think this is strictly accurate. Stare decisis could also have value in preserving rules that in the first instance could have been reasonably decided either way in the interests of stability. But courts generally prefer not to be explicit about how much discretion they have — “correct” and “incorrect” sound more authoritative than “a decision in a case that could have plausibly come out either way.”

  • Facebook
  • Twitter
  • Google+
  • Linkedin
  • Pinterest
  • sleepyirv

    My preference is that when someone is about to lose a bunch of money because of your decision, you might show a bit a respect by not making a bunch of jokes about it.

    • Dr. Ronnie James, DO

      Good point. It’s very unseemly when the Court seems completely insulated from the consequences of its decisions. It may be better to be insulated in this case than, say,a decision denying health coverage to millions of poor people, but the principle still stands. The concept of governance – that I am the servant of all the public, not just those who empowered me – has suffered greatly under the tribalism of Movement Conservatism (Rove’s “51% ism”, Baker’s “Fuck the Jews”, etc.), it’s probably better that Kagan not advance that trend.

    • Joe_JP

      Kagan shows respect by providing a reasoned analysis on the subject. A few playful use of comic book references doesn’t change that. And, if she was joking about a person bringing the claim, it would be different as well.

      • matt w

        I think it’s a bit unseemly to drop all sorts of Marvel references while ruling for Marvel, perhaps. Kinda like asking for the respondent’s autograph.

    • Malaclypse

      sleepyirv doesn’t want to fuck you Jennie.

  • Murc

    Question. Am I the only layman who thinks that the Supreme Court really shouldn’t give much of a toss about stare decisis?

    Their role is fundamentally different from that of lower courts; they’re really much more of a lawmaking and political body, pretentions to the contrary notwithstanding.

    • sleepyirv

      Hey, if you want your rulings to be taken seriously by a future Supreme Court, you have to make it look like a requirement.

    • Downpuppy

      Stare makes a lot of sense in legislative interpretation, where if Congress thinks they get it wrong they can change it. Which is why Leegin Creative Leather Products, Inc. v. PSKS, Inc. is in the Top 10 worst decisions of the Roberts court.

    • Joe_JP

      Granting they are a “lawmaking and political body,” the Supreme Court, including Kagan here, explain why stare decisis is a good policy. It isn’t set in stone but not “giving much of a toss” is a pretty bad policy.

      They are not the same sort of “lawmaking” body as a legislature. The same thing applies to the “political” part. Good policy also is to be careful with precedent, trust that if something was in place for a long time, there was a reason, including long term, ongoing expectations based on it.

      Again, if things show a need for change, change.

    • ThrottleJockey

      Without stare decisis would Roe v. Wade still stand?

      • Jordan

        Which justice do you think would rather overturn Roe V. Wade but doesn’t because of a commitment to stare decisis? Is that what motivates Kennedy?

        • ThrottleJockey

          I can’t come up with any other plausible reason to explain why they haven’t over turned it.

          • Jordan

            Here’s a plausible reason: the four liberals don’t want to overturn it. Kennedy is wishy-washy, but stare decisis doesn’t enter into. Seems more likely than the idea that any of the 5 pro-Wade justices are basing their decisions on stare decisis reasons.

          • Scott Lemieux

            I can’t come up with any other plausible reason to explain why they haven’t over turned it.

            The fact that Casey almost certainly represents the policy preferences of O’Connor and Kennedy seems a perfectly adequate explanation to me.

        • Murc

          What Jordan said, basically.

          I mean, the Supremes reverse themselves all the time; that’s part of their job, to do ongoing tinkering with constitutional law. It just seems like a lot of people pretend that it isn’t.

        • Joe_JP

          I think the bottom line with Kennedy is that there is a general “liberty” out there and it involves basic control of your body, sex life etc. and if you totally ban abortion, it would threaten that liberty. You could not just take out the string of abortion w/o damaging the garment.

          Stare decisis might matter regarding certain lines for regulation (such as the viability line) but the basic right of abortion, less so. Pre-Casey, precedent mattered more, since they were stricter about allowing regulations and the swing vote — Justice Powell — at times stuck with that strict rule in part because of precedent.

      • Malaclypse

        You can’t hide your dumbprints Jennie.

  • Jordan

    As a mostly non-spiderman-book-reader, I thought the “with great power comes great responsibility” line from the first spiderman movie to be one of the stupidest things I’d ever heard.

    • ThrottleJockey


      • Murc

        Well, it’s stupid if you read it hyper-literally; of course power doesn’t automatically come with responsibility attached, plenty of people wield awesome power on a daily basis with no internal sense of responsibility.

        But it’s not supposed to be read that way. Uncle Ben is making a statement of moral principle; what he’s actually saying is that with great power comes the moral obligation to use that power responsibly.

        Which may not be the greatest and most insightful philosophical point ever made, but it is hardly stupid.

        • That’s why the original line is “with great power must also come great responsibility”, which requires you to read it as a statement of moral principle instead of as an observation.

          • ThrottleJockey

            That’s why I was asking Jordan why. I’ve always loved that line. Its a very progressive principle. It was one of the things (among many others) that made me a Spidey fan as a boy more so than any other book. Also really liked Silver Surfer (who had a similar ethos) and The Avengers if for different reasons (great back story, interesting group dynamics).

            • Jordan

              Oh, the principle is quite fine. Its a better one than many other superheroes, I guess.

              I just thought it was done quite terribly in the first movie. And I was never enough of a spiderman book reader for its nostalgia/lore connection to override that “WHY is ben saying this???” thing.

          • Hogan

            Once a man posted to a Usenet comic book discussion group asking for lines from comics that provided general wisdom and guidance for life, along the lines of “With great power must also come great responsibility.” (He was collecting them in a book to give to his son, who was going away to college.)

            Within seconds the first response was up: “Your metal weapons are useless against Magneto.”

        • Jordan

          It wasn’t that, really. It was more that Peter Parker hadn’t been demonstrated to have “great” power whatsoever when Ben said that.

          I agree with the moral point. And I recognize its a lore thing to put it in. But it was just inserted so awkwardly that I loled in the theater and haven’t been able to take that phrase seriously since.

          /eta: the overtop/grandiose nature, of course, didn’t help for me either.

          • royko

            What, you don’t think “With great power…” is what someone would say to the withdrawn and secretive teenager they were raising? Maybe it was meant as dating advice?

            Hmmm…maybe not.

            Truth be told, old Ben said it to anyone who would listen. He wouldn’t shut up about it. “How’s it going, Ben?” “With great power comes…” “Aw, shut up, Ben.” Ben was a bit touched in the head. But very moral.

            • Ahuitzotl

              if a little frustrating at the diner – ‘What’ll you have today, hon’ ‘With great power must come great responsibility’ ‘Oh, Steak, no beans, again huh’

            • Jordan

              This makes sense.

        • Vance Maverick

          There’s a basic distinction between having practical responsibility and feeling responsible. This line (corny but sound, in my view) says that power makes you practically responsible, and its rhetorical thrust is that power should make you feel responsible.

        • matt w

          I don’t even think that it’s wrong, hyper-literally. “Great responsibility” doesn’t even necessarily mean that the person is what we would call “a responsible person”; just that they have the responsibility to use that power wisely, whether or not they live up to the responsibility or take it seriously. Like this quote from Northern Exposure (apparently)

          I gave you a tremendous responsibility with this, uh, film festival. A chance of a lifetime. But you didn’t step up to the plate with it.

          The person had responsibility even if they weren’t responsible.

          All that said, I agree with Jordan that the way they shoehorned it in was clumsy.

    • Just_Dropping_By

      Perhaps you’d find Guy Gardner’s paraphrase of it more palatable: “With great power comes great fun!”

  • D. C. Sessions

    Am I the only one who reads this as a very subtle comment by Justice Kagan on the Roberts Court’s less than reverent regard for stare decisis?

  • Hogan

    From Alito’s dissent:

    Passing legislation is no easy task. A federal statute must withstand the “finely wrought” procedure of bicam­eralism and presentment. INS v. Chadha, 462 U. S. 919, 951 (1983); Clinton v. City of New York, 524 U. S. 417, 440 (1998); see U. S. Const., Art. I, §7. Within that onerous process, there are additional practical hurdles. A law must be taken up for discussion and not passed over in favor of more pressing matters, and Senate rules require 60 votes to end debate on most legislation. And even if the House and Senate agree on a general policy, the details of the measure usually must be hammered out in a confer­ence committee and repassed by both Houses.

    Scalia at oral argument in King v. Burwell:

    SCALIA: What about Congress? You really think Congress is just going to sit there while all of these disastrous consequences ensue? I mean, how often have we come out with a decision such as the ­­ you know, the bankruptcy court decision? Congress adjusts, enacts a statute that takes care of the problem. It happens all the time. Why is that not going to happen here?

    Those two should talk.

    • sibusisodan

      If the ruling on the King case ends up striking the subsidies, how much of the dissent could just be quoting the conservative wing of the court, verbatim, on past decisions?

      At least half?

  • dl

    Scott, thoughts about raisin case?

  • Hubbie LaCoss

    No comment on John Roberts stopping Obama’s attempt at liquidating the raisin farming kulaks?

    • Murc

      Can’t tell if Jennie, or mocking Jennie.

      If the latter, well done sir!

      • tsam

        No, that’s the real deal. Dumbprints in other threads already.

        • Murc

          That always makes me so sad.

    • Hogan

      The DoA enforcement action was initiated in 2004, when He Who Must Not Be Named was still the president.

  • Gwen

    A few observations:

    A as in Alpha: Kimble did collect about $6 million in royalties prior to Marvel discovering Brulotte. This has a few implications:

    A1. Don’t feel sorry for Kimble, he’s a millionaire several times over, and Marvel more than paid for ripping off his idea. (See below about bigger perspective of substantial justice).

    A2. This plays…awkwardly… with Kagan’s argument that stare decisis is most-important where property and contract rights are in play. Because, apparently, even a corporation and (one suspects) fairly sophisticated lawyers can’t keep track of all the precedents. I wouldn’t say this *undermines* her point because the alternative here is to make a new exception to the Brulotte rule, which would just make the law even *more* complicated.

    A3. This might make a strong case for Congress occasionally going through the USC and putting clear precedents (like Brulotte) into black-letter statute law. It’s a lot easier for lawyers (and non-lawyers) to find rules of law in statutes, than in court cases.

    B as in Beta: This case really turns on the “objective” theory of contract law as well as public-policy exceptions to contract. Clearly, neither party intended the royalties to stop at the end of the patent term. But in the final analysis, their subjective intent mattered not a wit — they bargained in the “shadow of the law” even if they didn’t even know it.

    B1. This is probably the correct approach, for all the reasons you learned in law school (see also: the two ships Peerless, the chicken case, and read your Oliver Wendell Holmes, people).

    B2. But are we taking this principle too far?

    B3. And is the public interest here in preventing people from having permanent patent monopolies sufficiently strong to overrule the freedom of contract?

    C as in Charlie: I have a feeling this case might make it (at least in heavily truncated form) into some 1L civil procedure or jurisprudence textbooks. This has one of the more-approachable analyses of what stare decisis means and why it exists as a judicial rule, than I have seen in a while.

    D as in Delta: This can probably be interpreted as a pro-corporate decision, given that most patent licensees are going to be corporations. But on the other hand, this does undercut patent trolls a bit. This might reduce payouts to the “little guy” but it also will also prevent excessive payments to hucksters. So I can’t help but think this is no-worse-than-a-wash from the point-of-view of basic social justice.

    • matt w

      Kimble did collect about $6 million in royalties prior to Marvel discovering Brulotte.

      If I read this correctly, didn’t Marvel discover Brulotte before they had to stop paying Kimble royalties? That is, Brulotte only forbids Kimble from collecting royalties after the patent expired in 2010, and Marvel filed the suit involving Brulotte before then.

      I don’t think this really undermines A2, because Marvel didn’t seem to know this at the time they settled the original lawsuit, and Kimble and his lawyers certainly don’t seem to have.

      Also, as a non-lawyer, this strikes me as one of the best cases for stare decisis, since the original decision seems to have been based on some economic analysis and Kimble was arguing that the economic analysis was wrong. Having the laws change whenever the court makes a new economic analysis would be less than ideal.

  • Pingback: The Supreme Court is beginning to rule … | Fraser Sherman's Blog()

  • Pingback: The Supreme Court is beginning to rule … | Fraser Sherman's Blog()

It is main inner container footer text