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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.”

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