Law in Contemporary Society

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What is a Patent?

The patent system is bursting at the seams. In many areas, if not in all, the patent system no longer accomplishes what it is designed to do, mainly, to to promote the "Progress of Science and useful Arts." For evidence of this fact, look no further than the crumbling music industry or the broken pharmaceutical system. Given that the system is breaking down, other than dismantling the patent system in its entirety, is there a way to fix it? This is a question I'd like to explore.1


MatthewZornSecondPaper 12 - 15 Jul 2010 - Main.MatthewZorn
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What is a Patent?

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The patent system is bursting at the seams. In many areas, if not in all, the patent system no longer accomplishes what it is designed to do, mainly, to to promote the "Progress of Science and useful Arts" For evidence of this fact, look no further than the crumbling music industry or the broken pharmaceutical system. Given that the system is breaking down, other than dismantling it in its entirety, is there a way to fix it? This is the question I'd like to explore.1
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The patent system is bursting at the seams. In many areas, if not in all, the patent system no longer accomplishes what it is designed to do, mainly, to to promote the "Progress of Science and useful Arts." For evidence of this fact, look no further than the crumbling music industry or the broken pharmaceutical system. Given that the system is breaking down, other than dismantling the patent system in its entirety, is there a way to fix it? This is a question I'd like to explore.1
 
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The current system gives patent holders many of the same rights a real property owner would have. Patent holders have the right of possession, right to sell, and the right to exclude. In addition, similar to property rights, the government can use a patent as long as it pays just compensation. Kelo ruled that a government takings of private land for economic development constitutes "public use"; the same might be said of patents. Patents can and should be rescinded whenever the patent clearly and unambiguously stands in the way of economic progress or social well-being.
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Patent holders have the right of possession, right to sell, and the right to exclude. But that right, like most rights, is deeply qualified. The law that giveth and the law may taketh away. But, unfortunately, the penumbras of capitalism pollute government patent policy that is inevitably deferential to large corporate-patent Megatrons.

Patents--Some Theory

The theory behind patents largely derives from capitalism and can be concisely summarized as such: 1. Patents give rights to future profits. 2. Thus, patents create incentives to research, to develop, to invent, to produce, to expend resources to bring the patented item into being.

In economic terms, the fixed monetary cost of bringing a product to market is offset by the prospects of profiting off of that good. The cost for Pfizer to produce a single pill of Viagra may exceed a billion dollars. But, from there, the cost of each additional dose of "Boner Juice" is trivial, less than a penny perhaps. The (often obscene) markup compensates from the billion dollar accounting loss from the first pill. Abstractly, I see no ethical problem with this business strategy.

Questions must be asked about the ethics of the practice, however, when the parenthesis in the preceding paragraph disappear, when profit margins fly through the glass ceiling.

 
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Why do we have Patents?

 
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Patents give their owners rights to future profits. In doing so, patents create incentives to research, to develop, to invent, to produce, to expend resources in order to bring the patented item into being. Patents may also encourage disclosure. But the patent system may be a relic of the past. Patents originated in a different time when inventions consisted of tangible goods: think telephone or light bulb. Now, a substantial portion of patented inventions consist of the intangible: think genes and software. This author finds it unlikely that the founding fathers intended to grant patent protection to algorithms and chemical formulas. In other words, the modern umbrella of patent stretches too far. So it goes.
 The purported benefit of a patent may be over-matched by accompanying harms. Patents can be quite obstructive and create gridlock when rights are fractured among too many parties, creating an "anti-commons." Bargaining and transaction costs may become prohibitive when patent owners each individually own their own stop signs with the power to halt development. Here, the patent system works backwards. The latest and greatest Viagra may be stuck in a lab somewhere because the costs associated with its development are too prohibitive. Even more fundamental and less theoretical are systemic costs required to maintain an intricate patent system. These costs include the cost of maintaining of a regulatory agency, litigation costs, and other legal costs.


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It happened here. And here. Here too.

"patent breaks" are rare and the entire too deferential to patent-dependent corporations.

 

How are we fixing the the System?

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 One last comment: I don't think the total abolition of the patent system, at this point in time, is a political feasible reality. After doing more reading, I don't support the ideas put forth here for a few different reasons. I still think this is an interesting thought though.

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MatthewZornSecondPaper 11 - 28 May 2010 - Main.MatthewZorn
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What is a Patent?

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Why do we have Patents?

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Patents give their owners rights to future profits. In doing so, patents create incentives to research, to develop, to invent, to produce, to expend resources in order to bring the patented item into being. Patents may also encourage disclosure. But our patent system, indeed the concept of a patent, may be a relic of the past. Patents originated in a different time when inventions consisted of tangible goods: think telephone or light bulb. Now, a substantial portion of patented inventions consist of the intangible: think genes and software. This author finds it unlikely that such intangible things were originally intended to fall under patent protection. So it goes.

There are many historical and emerging arguments against patent systems. For one, patents can be quite obstructive and create gridlock. Michael Heller calls this effect the “anti-commons”: too many people have too many rights. An “anti-commons” prevents the holders of these rights from assembling them, which decreases social-welfare. His most contemporarily relevant example is in biotechnology. To develop new drugs, companies often require the license of patents that belong to other companies. However, as more and more licenses are required, the bargaining and transaction costs may become excessive and outweigh the future financial expected value of a marketable drug. Here, Heller argues, the patent system works backwards and consequently produces the opposite goal of what it is designed to do: increase social welfare. Accordingly, the latest and greatest Viagra may be stuck in the labs because the costs of developing it are too prohibitive.

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Patents give their owners rights to future profits. In doing so, patents create incentives to research, to develop, to invent, to produce, to expend resources in order to bring the patented item into being. Patents may also encourage disclosure. But the patent system may be a relic of the past. Patents originated in a different time when inventions consisted of tangible goods: think telephone or light bulb. Now, a substantial portion of patented inventions consist of the intangible: think genes and software. This author finds it unlikely that the founding fathers intended to grant patent protection to algorithms and chemical formulas. In other words, the modern umbrella of patent stretches too far. So it goes.
 
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“Patent thickets” are a major problem preventing innovation in industries that require the coordinated use technologies owned by competing market participants. These problems are especially urgent in software and pharmaceuticals, but that is because those are the areas in which patents are most prominent. Patents are the problem. Also, perhaps mentioning a drug other than Viagra might do more justice to the gravity of the situation.
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The purported benefit of a patent may be over-matched by accompanying harms. Patents can be quite obstructive and create gridlock when rights are fractured among too many parties, creating an "anti-commons." Bargaining and transaction costs may become prohibitive when patent owners each individually own their own stop signs with the power to halt development. Here, the patent system works backwards. The latest and greatest Viagra may be stuck in a lab somewhere because the costs associated with its development are too prohibitive. Even more fundamental and less theoretical are systemic costs required to maintain an intricate patent system. These costs include the cost of maintaining of a regulatory agency, litigation costs, and other legal costs.
 
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"Latest and greatest" Viagra was a stab at some sardonic humor. I still like it.

You could talk about the (recent) impossibility of bringing to market a second test for breast cancer, because patents on the BRCA-1 and 2 genes prevented it. The ACLU and PubPat? overturned the patent in court, but that solution was not so much an overcoming of a patent thicket as an elimination of the patent itself.

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How are we fixing the the System?


MatthewZornSecondPaper 10 - 28 May 2010 - Main.MatthewZorn
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What is a Patent?

The patent system is bursting at the seams. In many areas, if not in all, the patent system no longer accomplishes what it is designed to do, mainly, to to promote the "Progress of Science and useful Arts" For evidence of this fact, look no further than the crumbling music industry or the broken pharmaceutical system. Given that the system is breaking down, other than dismantling it in its entirety, is there a way to fix it? This is the question I'd like to explore.1

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The current system gives patent holders many of the same rights a real property owner would have. Patent holders have the right of possession, right to sell, and the right to exclude. In addition, similar to property rights, the government has a right the right to use a patent as long as it gives the owner just compensation. In regards to real property, Kelo ruled that a government takings of private land for economic development constitutes “public use” and is therefore constitutional. Patents may or may not be real property and in any case are not governed by the same principles that real property (federal vs. state). Nevertheless, the majority's rationale in interpreting “public use” can be helpful—and instructive—in interpreting the similar “for the United States” provision in USC 28 S 1498.

The Constitution doesn’t mandate the creation of patents or even the promotion of progress in science, but grants power to the federal government to enact laws to that effect if it wants to. So, patents are optional.

Agreed, and, having read the position in your paper I wholeheartedly agree. Nevertheless, the concept of intellectual property rights may not be encoded in the Constitution because they pre-existed the Constitution . Such rights did not come, generally, from the common law but from statute ("creatures of statute" as it was said). In English history, copyright law goes back to the early 18th century (Statute of Anne). In American history, before the Constitution passed (after the Revolution), some "states" created patent systems of their own. One of the first pieces of major legislation Congress passed (1790) was the Patent Act. All of this goes to show two things. First, patents/intellectual property may have some historical cultural grounding with people and human nature to have enterprise in their work. Personally, I don't reject this view today (clearly)--but I think that the system persists in its current form to maintain power structures and in some cases to actively inhibit human happiness (expounded upon later). Second, and more important, I think your position misinterprets what the Constitutional provision is in effect. Technically, your comment is spot on. However, in view of historical circumstances, the provision is clearly an allocation of a power (patent making) that was presumed to have existed and would subsequently result in the creation of patents.

Second, if patents are personal property, rather than real property, extending real property doctrines to them seems risky, formally (real or personal, pick) and logically. Real property is tangible, while patents have no physical existence. When trespassers occupy real property, the land’s utility to the owner decreases. No reduction in the utility of a patented innovation results from the infringer’s use of it. The knowledge contained in a patent cannot be exhausted, and is therefore a public good. The “taking” of a patent is, then, the making of a public good out of that which already was a public good. This illogicality is latent in the statutory scheme of 1498, and I’m not sure why we would want to extend it further, by exercising the statutory taking power widely, without a strong need to do so. Also, for a taking, compensation must be paid, which might be very costly depending on the pricing scheme chosen.

Not entirely sure what you are getting at here but a couple comments. First, Kelo is in regards to real property, however, it by no means extends or limits my argument. The power to repossess the patent is statutory and needs no Constitutional justification. However, I mention it only to point out what a "public good" may be. Also, there is a legitimate counter argument that there is a reduction in the utility when infringers use patents, a so-called field reduction. When an infringer uses one patent, it reduces the value of existing and future patents (perhaps, this is the classic argument). I feel this is too big of an elephant to ignore. Of course, I think the better question to ask is whether the costs (to society, to enforce) here exceed the benefits (innovation, research).

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The current system gives patent holders many of the same rights a real property owner would have. Patent holders have the right of possession, right to sell, and the right to exclude. In addition, similar to property rights, the government can use a patent as long as it pays just compensation. Kelo ruled that a government takings of private land for economic development constitutes "public use"; the same might be said of patents. Patents can and should be rescinded whenever the patent clearly and unambiguously stands in the way of economic progress or social well-being.
 

Why do we have Patents?

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The principal argument for a patent system is that patents incentivize inventors to invent. Generally speaking, the logic proceeds as follows: We want law to make life more efficient (to increase happiness) and increased knowledge and new technological processes make life more efficient. Therefore, we want to increase our knowledge and improve existing processes. People only (or primarily) produce for pecuniary gain and therefore people will not produce / invest time or money in new processes unless they see a future payoff. A huge number of great inventions have sprung from the zeal of inventors committed to science or the sheer enjoyment of tinkering in a lab or shop. Similarly, most drug discoveries occur not in pursuit of compensation from pharmaceutical companies, but from competition for NIH and NSA grants to university research labs. Most inventors never realize much profit from their inventions, but invent compulsively anyways, due to curiosity and the chance of being someone who matters. I do recognize, however, that some inventions occur in a corporate context where patents allow higher profits. So, to maximize our knowledge and improve existing processes we must protect investments and guarantee future payoffs. Many of these suppositions are questionable, but the bottom line should be clear: patents increase well being by incentivizing authors to invest time and money in their enterprise
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Patents give their owners rights to future profits. In doing so, patents create incentives to research, to develop, to invent, to produce, to expend resources in order to bring the patented item into being. Patents may also encourage disclosure. But our patent system, indeed the concept of a patent, may be a relic of the past. Patents originated in a different time when inventions consisted of tangible goods: think telephone or light bulb. Now, a substantial portion of patented inventions consist of the intangible: think genes and software. This author finds it unlikely that such intangible things were originally intended to fall under patent protection. So it goes.
 There are many historical and emerging arguments against patent systems. For one, patents can be quite obstructive and create gridlock. Michael Heller calls this effect the “anti-commons”: too many people have too many rights. An “anti-commons” prevents the holders of these rights from assembling them, which decreases social-welfare. His most contemporarily relevant example is in biotechnology. To develop new drugs, companies often require the license of patents that belong to other companies. However, as more and more licenses are required, the bargaining and transaction costs may become excessive and outweigh the future financial expected value of a marketable drug. Here, Heller argues, the patent system works backwards and consequently produces the opposite goal of what it is designed to do: increase social welfare. Accordingly, the latest and greatest Viagra may be stuck in the labs because the costs of developing it are too prohibitive.
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 (1) On the general validity of things like software patents, I wholly agree with Eben. I think that it is patently absurd that one may patent a software program which ultimately consists of a string of numbers. Moreover, his formalist legal analysis that "the appropriate invocation of the principal of novelty and non-obviousness to software results in zero software patents" must be correct. Frankly, if one can patent these sorts of numbers, why can I not patent pi? Of course I can't, because, if I could I would own just about everything.

But, this is not the focus of this paper. In fact, I'd suggest that the solution I am arguing for is opposite of Eben's goals and many of my own personal views on the issue. Mainly, I am trying to come up with a way to preserve the patent system and try to increase well being within current legal structures.

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One last comment: I don't think the total abolition of the patent system, at this point in time, is a political feasible reality. After doing more reading, I don't support the ideas put forth here for a few different reasons. I still think this is an interesting thought though.

 -- MatthewZorn - 20 April 2010
 
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MatthewZornSecondPaper 9 - 26 May 2010 - Main.SamWells
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What is a Patent?

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 The current system gives patent holders many of the same rights a real property owner would have. Patent holders have the right of possession, right to sell, and the right to exclude. In addition, similar to property rights, the government has a right the right to use a patent as long as it gives the owner just compensation. In regards to real property, Kelo ruled that a government takings of private land for economic development constitutes “public use” and is therefore constitutional. Patents may or may not be real property and in any case are not governed by the same principles that real property (federal vs. state). Nevertheless, the majority's rationale in interpreting “public use” can be helpful—and instructive—in interpreting the similar “for the United States” provision in USC 28 S 1498.
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The Constitution doesn’t mandate the creation of patents or even the promotion of progress in science, but grants power to the federal government to enact laws to that effect if they want to. So, patents are optional.
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The Constitution doesn’t mandate the creation of patents or even the promotion of progress in science, but grants power to the federal government to enact laws to that effect if it wants to. So, patents are optional.
 Agreed, and, having read the position in your paper I wholeheartedly agree. Nevertheless, the concept of intellectual property rights may not be encoded in the Constitution because they pre-existed the Constitution . Such rights did not come, generally, from the common law but from statute ("creatures of statute" as it was said). In English history, copyright law goes back to the early 18th century (Statute of Anne). In American history, before the Constitution passed (after the Revolution), some "states" created patent systems of their own. One of the first pieces of major legislation Congress passed (1790) was the Patent Act. All of this goes to show two things. First, patents/intellectual property may have some historical cultural grounding with people and human nature to have enterprise in their work. Personally, I don't reject this view today (clearly)--but I think that the system persists in its current form to maintain power structures and in some cases to actively inhibit human happiness (expounded upon later). Second, and more important, I think your position misinterprets what the Constitutional provision is in effect. Technically, your comment is spot on. However, in view of historical circumstances, the provision is clearly an allocation of a power (patent making) that was presumed to have existed and would subsequently result in the creation of patents.
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Second, if patents are personal property, rather than real property, extending real property doctrines to them seems risky, formally (real or personal, pick) and logically. Real property is tangible, while patents have no physical existence. When trespassers occupy real property, the land’s utility to the owner decreases. No reduction in the utility of a patented innovation results from the infringer’s use of it. The knowledge contained in a patent is a public good, in that the use of a patent does not reduce the future utility of the idea. The “taking” of a patent is, then, the making of a public good out of that which already was a public good. This illogicality is already latent in the statutory scheme of 1498, and I’m not sure why we would want to extend it further, by exercising the statutory taking power widely, without a strong need to do so.
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Second, if patents are personal property, rather than real property, extending real property doctrines to them seems risky, formally (real or personal, pick) and logically. Real property is tangible, while patents have no physical existence. When trespassers occupy real property, the land’s utility to the owner decreases. No reduction in the utility of a patented innovation results from the infringer’s use of it. The knowledge contained in a patent cannot be exhausted, and is therefore a public good. The “taking” of a patent is, then, the making of a public good out of that which already was a public good. This illogicality is latent in the statutory scheme of 1498, and I’m not sure why we would want to extend it further, by exercising the statutory taking power widely, without a strong need to do so. Also, for a taking, compensation must be paid, which might be very costly depending on the pricing scheme chosen.
 Not entirely sure what you are getting at here but a couple comments. First, Kelo is in regards to real property, however, it by no means extends or limits my argument. The power to repossess the patent is statutory and needs no Constitutional justification. However, I mention it only to point out what a "public good" may be. Also, there is a legitimate counter argument that there is a reduction in the utility when infringers use patents, a so-called field reduction. When an infringer uses one patent, it reduces the value of existing and future patents (perhaps, this is the classic argument). I feel this is too big of an elephant to ignore. Of course, I think the better question to ask is whether the costs (to society, to enforce) here exceed the benefits (innovation, research).
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 True enough. This comment prompted me to look up data on health care expenditures and see that drugs were only ~30% of health care expenditures. Perhaps my above statement was made in a bit of ignorance. Drug prices may or may not be, however, more inflated than the above mentions. There are, indeed, other problems with our health system. I do not know (and I don't think it can be stated) if public insurance is the solution.
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Another point to consider is that patent monopolies in healthcare allow a patent holder to set the supply curve for a drug is wherever the patent holder wants. This distorts the intersection point of the supply curve with the (socially-determined) demand curve. A taking would not solve this pricing problem, but would make the public foot the bill. Competition between drug makers would, however, solve the pricing problem, and this is possible if patents are eliminated.
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Another point to consider is that patent monopolies in healthcare allow a patent holder to set the supply curve for a drug wherever the patent holder wants. In seeking to maximize price times quantity, the patent holder distorts the intersection point of the supply curve with the (socially and medically determined) demand curve, raising prices. A taking would not solve this pricing problem, but would make the public foot the bill. Competition between drug makers would, however, solve the pricing problem, and this is possible if patents are eliminated.
 Employing such a tactic could bring about a revolution in health care practices. The Government could (but realistically will not) strong arm Merck, Pfizer, and the like into affordable drugs. The decree would be as follows: lower the price on Drug X or I will own drug X. Equally important, the Government could broker cross-licensing agreements and avoid the gridlock Heller deplores. The decree would be as follows: license your patent to company X or I will do it for you. Both of these decrees seem to be well within the Constitutional definition of “public use.” Is there anything more important and more used by the public use than health care? These intrusions would also be well protected by statutory language as use for the “United States.”
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This forced price reduction did actually occur with AIDS drugs in the early 2000s, but only with respect to Africa and other developing countries. The way that this was accomplished was not through takings, but through Clinton’s promise that the US would not enforce US patents against African countries that chose to infringe by buying generic drugs. The solution was not a taking, but the abolition of the right through abolition of the remedy. This could be accomplished with pharmaceutical patents generally, through elimination of patents, provided that the government creates a mechanism to pay for clinical trials. As I mentioned above, the basic research is done at universities, and is government funded. Also, Switzerland’s pharmaceutical industry flourished without patents on pharmaceutical products, only processes, up until 1978. Also, other mechanisms besides patents exist can yield profits for innovation. The cost of copying a technology through reverse-engineering is estimated to be somewhere around 50%, on average, resulting in a partial advantage for innovators, and a big advantage goes to a first-movers in a marketplace. I’m not sure that these advantages are enough to cover the cost of clinical trials, but with government funding for that, these forces would suffice to make almost all patented technologies producible, and the innovations profitable, including information technology.
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This forced price reduction did actually occur with AIDS drugs in the early 2000s, but only with respect to Africa and developing countries. The way that this was accomplished was not through takings, but through Clinton’s promise that the US would not enforce US patents against African countries that chose to infringe by buying generic drugs. The solution was not a taking, but the abolition of the right through abolition of the remedy. This abolition of patents could be accomplished generally, provided that the government creates a mechanism to pay for clinical trials for drugs. As I mentioned above, the basic research is done at universities, and is government funded. Also, Switzerland’s pharmaceutical industry flourished without patents on pharmaceutical products, only processes, until 1978. Also, other mechanisms besides patents exist can yield profits for innovation. The cost of copying a technology through reverse-engineering is estimated to be somewhere around 50%, on average, resulting in a partial advantage for innovators. A significant further advantage accrues to first-movers in a marketplace. I’m not sure that these mechanisms are enough to cover the cost of clinical trials, but with government funding for that, they would suffice to make almost all patented technologies producible, and the innovations profitable, including information technology.
 These are very interesting and pertinent points and have sparked a new thought and direction for where I want this to go. A much longer, more controversial direction I might add.

For a number of political reasons this revolution will probably be deferred to another generation's future. Nevertheless, such a vision would be consistent with the Constitution's decree to protect the “general welfare.” It would strike that delicate balance between protecting the inventor's enterprise and ensuring public benefit.

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It sounds almost like you’re admitting that inventors “deserve” to profit, a common misinterpretation. Inventors should profit only if that incentivizes innovation. Patents are often used quite openly for rent-seeking. Patent holding companies are one example. Another is the push by the Chinese government for Chinese companies to apply for more patents at the World Intellectual Property Organization, in order to show off their financial strength and attract investors. This behavior shows the blatantly profit-driven side to patents.
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It sounds almost like you’re admitting that inventors “deserve” to profit, a common misinterpretation. Inventors should have profit only so far as that increase in profit incentivizes innovation whose benefit exceeds the harm of increased prices. Patents are often used quite openly for rent-seeking by patent holding companies, as well as corporations that want to show off their financial strength to investors.
 
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With regard to anti-commons, Bill Gates once said, “If people had understood how patents would be granted when most of today's ideas were invented, and had taken out patents, the industry would be at a complete standstill today.” Even today, the company evaluates strategic decisions based on how incompatibilities and technological barriers will be created with its software releases. Patents make the financial winners those who prevent innovation, not those who create it. I think the best solution may be the elimination of patents altogether. This only requires a congressional majority.
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With regard to anti-commons, Bill Gates once said, “If people had understood how patents would be granted when most of today's ideas were invented, and had taken out patents, the industry would be at a complete standstill today.” Even today, his company evaluates strategic decisions based on how incompatibilities and technological barriers will be created with its software releases. Patents make the financial winners those who prevent innovation, not those who create it. I think the best solution may be the elimination of patents altogether. This only requires a congressional majority.
 
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I just want to mention that I really enjoyed reading and commenting on your paper. Having thought about the Heller article and your other points, including the takings idea, I have some new ideas I want to incorporate into my own paper on patents. I hope my suggestions haven’t been too disheartening. Thanks for writing a new second paper that’s easy to comment on. Best of luck with revisions.
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I just want to mention that I really enjoyed reading and commenting on your paper. Having thought about the Heller article and your other points, including the takings idea, I have some new ideas for how the patent system could be improved if it can't be eliminated. I hope my suggestions haven’t been too disheartening. Thanks for writing a new second paper that’s easy to comment on. Best of luck with revisions.
 Sam Wells - 26 April 2010

MatthewZornSecondPaper 8 - 21 May 2010 - Main.MatthewZorn
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What is a Patent?

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The patent system is bursting at the seams. In many areas, if not in all, the patent system no longer accomplishes what it is designed to do, mainly, to to promote the "Progress of Science and useful Arts" For evidence of this fact, look no further than the crumbling music industry or the broken pharmaceutical system. Given that the system is breaking down, other than dismantling it in its entirety, is there a way to fix it? This is the question I'd like to explore.1
 
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Under the Constitution, the Government has the power to promote “Progress of Science and useful Arts, by securing for limited to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.” Pursuant to this goal, Congress passed Title 35 of the US Code to govern the rules and regulations on patentability and remedies for patent holders against those who infringe patents.

Patents “shall have the attributes of personal property.” Patent holders have the right of possession, right to sell, and the right to exclude. In addition, similar to property rights, the government has a right the right to use a patent as long as it gives the owner just compensation. In regards to real property, Kelo ruled that a government takings of private land for economic development constitutes “public use” and is therefore constitutional. Patents may or may not be real property and in any case are not governed by the same principles that real property (federal vs. state). Nevertheless, the majority's rationale in interpreting “public use” can be helpful—and instructive—in interpreting the similar “for the United States” provision in USC 28 S 1498.

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The current system gives patent holders many of the same rights a real property owner would have. Patent holders have the right of possession, right to sell, and the right to exclude. In addition, similar to property rights, the government has a right the right to use a patent as long as it gives the owner just compensation. In regards to real property, Kelo ruled that a government takings of private land for economic development constitutes “public use” and is therefore constitutional. Patents may or may not be real property and in any case are not governed by the same principles that real property (federal vs. state). Nevertheless, the majority's rationale in interpreting “public use” can be helpful—and instructive—in interpreting the similar “for the United States” provision in USC 28 S 1498.
 The Constitution doesn’t mandate the creation of patents or even the promotion of progress in science, but grants power to the federal government to enact laws to that effect if they want to. So, patents are optional.
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Some of the editor's comments have been integrated into the paper.
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(1) On the general validity of things like software patents, I wholly agree with Eben. I think that it is patently absurd that one may patent a software program which ultimately consists of a string of numbers. Moreover, his formalist legal analysis that "the appropriate invocation of the principal of novelty and non-obviousness to software results in zero software patents" must be correct. Frankly, if one can patent these sorts of numbers, why can I not patent pi? Of course I can't, because, if I could I would own just about everything.

But, this is not the focus of this paper. In fact, I'd suggest that the solution I am arguing for is opposite of Eben's goals and many of my own personal views on the issue. Mainly, I am trying to come up with a way to preserve the patent system and try to increase well being within current legal structures.

 -- MatthewZorn - 20 April 2010
 
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MatthewZornSecondPaper 7 - 01 May 2010 - Main.MatthewZorn
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What is a Patent?

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Under the Constitution, the Government is entrusted to “Progress of Science and useful Arts, by securing for limited to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.” Pursuant to this goal, Congress passed Title 35 of the US Code to govern the rules and regulations on patentability and remedies for patent holders against those who infringe patents.
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Under the Constitution, the Government has the power to promote “Progress of Science and useful Arts, by securing for limited to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.” Pursuant to this goal, Congress passed Title 35 of the US Code to govern the rules and regulations on patentability and remedies for patent holders against those who infringe patents.
 
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Patents “shall have the attributes of personal property.” Patent holders have the right of possession, right to sell, and the right to exclude. In addition, similar to property rights, the government has a right the right to use a patent as long as it gives the owner just compensation. In regards to real property, Kelo ruled that a government takings of private land for economic development constitutes “public use” and is therefore constitutional. Patents may or may not be real property and in any case are not governed by the same principles that real property (federal vs. state). Nevertheless, the majority's rationale in interpreting “public use” can be helpful—and instructive—in interpreting the similar “for the United States” provision in USC 28 S 1498.
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Patents “shall have the attributes of personal property.” Patent holders have the right of possession, right to sell, and the right to exclude. In addition, similar to property rights, the government has a right the right to use a patent as long as it gives the owner just compensation. In regards to real property, Kelo ruled that a government takings of private land for economic development constitutes “public use” and is therefore constitutional. Patents may or may not be real property and in any case are not governed by the same principles that real property (federal vs. state). Nevertheless, the majority's rationale in interpreting “public use” can be helpful—and instructive—in interpreting the similar “for the United States” provision in USC 28 S 1498.
 
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First, the government is not entrusted to progress (grammar, maybe?). The Constitution doesn’t mandate the creation of patents or even the promotion of progress in science, but grants power to the federal government to enact laws to that effect if they want to. So, patents are optional.
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The Constitution doesn’t mandate the creation of patents or even the promotion of progress in science, but grants power to the federal government to enact laws to that effect if they want to. So, patents are optional.
 
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Second, if patents are personal property, rather than real property, extending real property doctrines to them seems risky, formally (real or personal, pick) and logically. Real property is tangible, while patents have no physical existence. When trespassers occupy real property, the land’s utility to the owner decreases. No reduction in the utility of a patented innovation results from the infringer’s use of it. The knowledge contained in a patent is a public good, in that the use of a patent does not reduce the future utility of the idea. The “taking” of a patent is, then, the making of a public good out of that which already was a public good. This illogicality is already latent in the statutory scheme of 1498, and I’m not sure why we would want to extend it further, by exercising the statutory taking power widely, without a strong need to do so.
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Agreed, and, having read the position in your paper I wholeheartedly agree. Nevertheless, the concept of intellectual property rights may not be encoded in the Constitution because they pre-existed the Constitution . Such rights did not come, generally, from the common law but from statute ("creatures of statute" as it was said). In English history, copyright law goes back to the early 18th century (Statute of Anne). In American history, before the Constitution passed (after the Revolution), some "states" created patent systems of their own. One of the first pieces of major legislation Congress passed (1790) was the Patent Act. All of this goes to show two things. First, patents/intellectual property may have some historical cultural grounding with people and human nature to have enterprise in their work. Personally, I don't reject this view today (clearly)--but I think that the system persists in its current form to maintain power structures and in some cases to actively inhibit human happiness (expounded upon later). Second, and more important, I think your position misinterprets what the Constitutional provision is in effect. Technically, your comment is spot on. However, in view of historical circumstances, the provision is clearly an allocation of a power (patent making) that was presumed to have existed and would subsequently result in the creation of patents.
 
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Second, if patents are personal property, rather than real property, extending real property doctrines to them seems risky, formally (real or personal, pick) and logically. Real property is tangible, while patents have no physical existence. When trespassers occupy real property, the land’s utility to the owner decreases. No reduction in the utility of a patented innovation results from the infringer’s use of it. The knowledge contained in a patent is a public good, in that the use of a patent does not reduce the future utility of the idea. The “taking” of a patent is, then, the making of a public good out of that which already was a public good. This illogicality is already latent in the statutory scheme of 1498, and I’m not sure why we would want to extend it further, by exercising the statutory taking power widely, without a strong need to do so.
 
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Not entirely sure what you are getting at here but a couple comments. First, Kelo is in regards to real property, however, it by no means extends or limits my argument. The power to repossess the patent is statutory and needs no Constitutional justification. However, I mention it only to point out what a "public good" may be. Also, there is a legitimate counter argument that there is a reduction in the utility when infringers use patents, a so-called field reduction. When an infringer uses one patent, it reduces the value of existing and future patents (perhaps, this is the classic argument). I feel this is too big of an elephant to ignore. Of course, I think the better question to ask is whether the costs (to society, to enforce) here exceed the benefits (innovation, research).
 

Why do we have Patents?

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The principal argument for a patent system is that patents incentivize inventors to invent. Generally speaking, the logic proceeds as follows: We want law to make life more efficient (to increase happiness) and increased knowledge and new technological processes make life more efficient. Therefore, we want to increase our knowledge and improve existing processes. People only (or primarily) produce for pecuniary gain and therefore people will not produce / invest time or money in new processes unless they see a future payoff. A huge number of great inventions have sprung from the zeal of inventors committed to science or the sheer enjoyment of tinkering in a lab or shop. Similarly, most drug discoveries occur not in pursuit of compensation from pharmaceutical companies, but from competition for NIH and NSA grants to university research labs. Most inventors never realize much profit from their inventions, but invent compulsively anyways, due to curiosity and the chance of being someone who matters. I do recognize, however, that some inventions occur in a corporate context where patents allow higher profits. So, to maximize our knowledge and improve existing processes we must protect investments and guarantee future payoffs. Many of these suppositions are questionable, but the bottom line should be clear: patents increase well being by incentivizing authors to invest time and money in their art.
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The principal argument for a patent system is that patents incentivize inventors to invent. Generally speaking, the logic proceeds as follows: We want law to make life more efficient (to increase happiness) and increased knowledge and new technological processes make life more efficient. Therefore, we want to increase our knowledge and improve existing processes. People only (or primarily) produce for pecuniary gain and therefore people will not produce / invest time or money in new processes unless they see a future payoff. A huge number of great inventions have sprung from the zeal of inventors committed to science or the sheer enjoyment of tinkering in a lab or shop. Similarly, most drug discoveries occur not in pursuit of compensation from pharmaceutical companies, but from competition for NIH and NSA grants to university research labs. Most inventors never realize much profit from their inventions, but invent compulsively anyways, due to curiosity and the chance of being someone who matters. I do recognize, however, that some inventions occur in a corporate context where patents allow higher profits. So, to maximize our knowledge and improve existing processes we must protect investments and guarantee future payoffs. Many of these suppositions are questionable, but the bottom line should be clear: patents increase well being by incentivizing authors to invest time and money in their enterprise

There are many historical and emerging arguments against patent systems. For one, patents can be quite obstructive and create gridlock. Michael Heller calls this effect the “anti-commons”: too many people have too many rights. An “anti-commons” prevents the holders of these rights from assembling them, which decreases social-welfare. His most contemporarily relevant example is in biotechnology. To develop new drugs, companies often require the license of patents that belong to other companies. However, as more and more licenses are required, the bargaining and transaction costs may become excessive and outweigh the future financial expected value of a marketable drug. Here, Heller argues, the patent system works backwards and consequently produces the opposite goal of what it is designed to do: increase social welfare. Accordingly, the latest and greatest Viagra may be stuck in the labs because the costs of developing it are too prohibitive.

 
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I just don’t see “art” in general as being incentivized by wealth. Artists continue to do what they do despite extreme poverty in many cases. The personal or spiritual rewards can make it worthwhile. The few artists that achieve prominence and riches probably did not enter the business with that goal in mind. Might the same be true of inventors? I think the joy of discovery through invention might be a reward in and of itself.
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“Patent thickets” are a major problem preventing innovation in industries that require the coordinated use technologies owned by competing market participants. These problems are especially urgent in software and pharmaceuticals, but that is because those are the areas in which patents are most prominent. Patents are the problem. Also, perhaps mentioning a drug other than Viagra might do more justice to the gravity of the situation.
 
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There are many historical and emerging arguments against patent systems. For one, patents can be quite obstructive and create gridlock. Michael Heller calls this effect the “anti-commons”: too many people have too many rights. An “anti-commons” prevents the holders of these rights from assembling them, which decreases social-welfare. His most contemporarily relevant example is in biotechnology. To develop new drugs, companies often require the license of patents that belong to other companies. However, as more and more licenses are required, the bargaining and transaction costs may become execessive and outweigh the future financial expected value of a marketable drug. Here, Heller argues, the patent system works backwards and consequently produces the opposite goal of what it is designed to do: increase social welfare. Accordingly, the latest and greatest Viagra may be stuck in the labs because the costs of developing it are too prohibitive.
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"Latest and greatest" Viagra was a stab at some sardonic humor. I still like it.
 
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“Patent thickets” are a major problem preventing innovation in industries that require the coordinated use technologies owned by competing market participants. These problems are especially urgent in software and pharmaceuticals, but that is because those are the areas in which patents are most prominent. Patents are the problem. Also, perhaps mentioning a drug other than Viagra might do more justice to the gravity of the situation. You could talk about the (recent) impossibility of bringing to market a second test for breast cancer, because patents on the BRCA-1 and 2 genes prevented it. The ACLU and PubPat? overturned the patent in court, but that solution was not so much an overcoming of a patent thicket as an elimination of the patent itself.
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You could talk about the (recent) impossibility of bringing to market a second test for breast cancer, because patents on the BRCA-1 and 2 genes prevented it. The ACLU and PubPat? overturned the patent in court, but that solution was not so much an overcoming of a patent thicket as an elimination of the patent itself.
 

How are we fixing the the System?

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Various methods of curing these defect have been employed. One such solution are patent pools where companies agree to cross-license their patents. The key in any solution is to strike a balance between the “patent” framework and the “no patent” framework. Patents are designed to protect the gains an inventor will receive in order to incentivize investment. Patents aren’t supposed to protect profits, primarily, but should only do so insofar as is necessary to promote innovation. Usually, this means that they are not needed at all, and the gains to companies are pork. Such a justification is rooted in the fact that there is a social gain from new and better iPads (pick your favorite gizmo). But, clearly, at some point we tread into the realm of the “anti-commons” where we are protecting too many rights and social welfare declines due to obstruction. On this side of the continuum, the patent system mainly functions to line the pockets of the elite. In many areas, this consequence is unfortunate but not tragic. However, in health care, the consequence is absurd—people are dying because companies want to get rich. This must change.
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Various methods of curing these defect have been employed. One such solution are patent pools where companies agree to cross-license their patents. The key in any solution is to strike a balance between the “patent” framework and the “no patent” framework. Patents are designed to protect the gains an inventor will receive in order to incentivize investment. Perhaps, patents aren’t supposed to protect profits, primarily. Patents should, in theory, only do so insofar as is necessary to promote innovation. Such a justification is rooted in the fact that there is a social gain from new and better iPads (pick your favorite gizmo). But, clearly, at some point we tread into the realm of the “anti-commons” where we are protecting too many rights and social welfare declines due to obstruction. On this side of the continuum, the patent system mainly functions to line the pockets of the elite. In many areas, this consequence is unfortunate but not tragic. However, in health care, the consequence is absurd—people are dying because companies want to get rich. This must change.
 This seems like a restatement of the problem, or an expansion of its scope. People are dying, true, but how can this be changed? It would be cool to hear an explanation of the administration of a patent pool, or the mechanisms it provides for overcoming blockages. The way I understand it, a patent pool has the goal of mediating autonomy (patent rights and associated profits) with collaboration (licensing and sharing technology). I’d be interested in hearing how this works in practice.
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 Doctor visits, hospital procedures, and outpatient care are all very expensive, and these costs do not turn on drug prices. Legislation to create public insurance has always been needed for these reasons, too.
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True enough. This comment prompted me to look up data on health care expenditures and see that drugs were only ~30% of health care expenditures. Perhaps my above statement was made in a bit of ignorance. Drug prices may or may not be, however, more inflated than the above mentions. There are, indeed, other problems with our health system. I do not know (and I don't think it can be stated) if public insurance is the solution.
 Another point to consider is that patent monopolies in healthcare allow a patent holder to set the supply curve for a drug is wherever the patent holder wants. This distorts the intersection point of the supply curve with the (socially-determined) demand curve. A taking would not solve this pricing problem, but would make the public foot the bill. Competition between drug makers would, however, solve the pricing problem, and this is possible if patents are eliminated.

Employing such a tactic could bring about a revolution in health care practices. The Government could (but realistically will not) strong arm Merck, Pfizer, and the like into affordable drugs. The decree would be as follows: lower the price on Drug X or I will own drug X. Equally important, the Government could broker cross-licensing agreements and avoid the gridlock Heller deplores. The decree would be as follows: license your patent to company X or I will do it for you. Both of these decrees seem to be well within the Constitutional definition of “public use.” Is there anything more important and more used by the public use than health care? These intrusions would also be well protected by statutory language as use for the “United States.”

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 This forced price reduction did actually occur with AIDS drugs in the early 2000s, but only with respect to Africa and other developing countries. The way that this was accomplished was not through takings, but through Clinton’s promise that the US would not enforce US patents against African countries that chose to infringe by buying generic drugs. The solution was not a taking, but the abolition of the right through abolition of the remedy. This could be accomplished with pharmaceutical patents generally, through elimination of patents, provided that the government creates a mechanism to pay for clinical trials. As I mentioned above, the basic research is done at universities, and is government funded. Also, Switzerland’s pharmaceutical industry flourished without patents on pharmaceutical products, only processes, up until 1978. Also, other mechanisms besides patents exist can yield profits for innovation. The cost of copying a technology through reverse-engineering is estimated to be somewhere around 50%, on average, resulting in a partial advantage for innovators, and a big advantage goes to a first-movers in a marketplace. I’m not sure that these advantages are enough to cover the cost of clinical trials, but with government funding for that, these forces would suffice to make almost all patented technologies producible, and the innovations profitable, including information technology.
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These are very interesting and pertinent points and have sparked a new thought and direction for where I want this to go. A much longer, more controversial direction I might add.
 For a number of political reasons this revolution will probably be deferred to another generation's future. Nevertheless, such a vision would be consistent with the Constitution's decree to protect the “general welfare.” It would strike that delicate balance between protecting the inventor's enterprise and ensuring public benefit.
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 Sam Wells - 26 April 2010
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Still wading through some of the comments, but, I like them so far. They have provoked a number of thoughts. Just some stuff on the paper as a whole.

I'm not sure that the abolition of a patent system in its entirety is desirable. I read your paper, some of Eben's stuff, and a number of articles and I'm just not convinced. I'm okay with this position of uncertainty--I don't know if it is the right position, but I also don't know how it would ever be possible to have a right position (of course, I could say this on about practically any issue, legal or otherwise). I think we may agree that a person's position on the matter seems to be predetermined by their perception of societal good and how it is created. I think this is evident with Eben and your criticisms. Personally, I think I have views that slightly diverge from those articulated in this paper. However, the goal of this paper was to try and find a middle ground that is possible to enact, tailored to various goals, and not to bound by rules and procedures. I think some areas need more patent protection than others and that part of the problem is that we have a system which is applied across the board, regardless of the community/area involved (a different patent system may be needed in pharma/tech than inventing post-it-notes). I'd like to find a solution that allows discretion.

In sum, (1) I do not think the abolition of the patent system is politically possible. (2) I'm not convinced that abolition is desirable, either. (3) If the existing structure has potential, I'd like to exploit that potential. (4) If some system is necessary, I want to advocate for a patent system that is human nature oriented. I think, using "eminent domain" practices on patents may alter the human calculus of pharma companies in their other practices. This will create more social good and rebalance the equation (between social good and profit).

Finally, I apologize that this paper did not receive as much attention as it probably should have. And I want to thank you for putting such extensive thought into the paper. I am genuinely interested in the issue and your specific comments and paper (regarding clinical trials, marketing) have helped spark a new idea regarding pharmaceutical companies, patents, and controlled substance policy: the place where I think this idea is going. Unfortunately, I think I need to put the brakes on it for a few weeks.

 
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My last paper was inconsistent with the purpose of this exercise (writing and editing). Please edit this one instead (unless you really want to edit the other one, which is still here).
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Some of the editor's comments have been integrated into the paper.
 -- MatthewZorn - 20 April 2010
 
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MatthewZornSecondPaper 6 - 26 Apr 2010 - Main.SamWells
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What is a Patent?

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Under the Consititution, the Government is entrusted to “Progress of Science and useful Arts, by securing for limited to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.” Pursuant to this goal, Congress passed Title 35 of the US Code to govern the rules and regulations on patentability and remedies for patent holders against those who infringe patents.
 
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Patents “shall have the attributes of personal property.” Patent holders have the right of possession, right to sell, and the right to exclude. In addition, similar to property rights, the government has a right the right to use a patent as long as it gives the owner just compensation. In regards to real property, Kelo ruled that a government takings of private land for economic development constitutes “public use” and is therefore consitutional. Patents may or may not be real property and in any case are not governed by the same principles that real property (federal vs. state). Nevertheless, the majority's rationale in interpreting “public use” can be helpful—and instructive—in interpreting the similar “for the United States” provision in USC 28 S 1498.
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Under the Constitution, the Government is entrusted to “Progress of Science and useful Arts, by securing for limited to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.” Pursuant to this goal, Congress passed Title 35 of the US Code to govern the rules and regulations on patentability and remedies for patent holders against those who infringe patents.

Patents “shall have the attributes of personal property.” Patent holders have the right of possession, right to sell, and the right to exclude. In addition, similar to property rights, the government has a right the right to use a patent as long as it gives the owner just compensation. In regards to real property, Kelo ruled that a government takings of private land for economic development constitutes “public use” and is therefore constitutional. Patents may or may not be real property and in any case are not governed by the same principles that real property (federal vs. state). Nevertheless, the majority's rationale in interpreting “public use” can be helpful—and instructive—in interpreting the similar “for the United States” provision in USC 28 S 1498.

First, the government is not entrusted to progress (grammar, maybe?). The Constitution doesn’t mandate the creation of patents or even the promotion of progress in science, but grants power to the federal government to enact laws to that effect if they want to. So, patents are optional.

Second, if patents are personal property, rather than real property, extending real property doctrines to them seems risky, formally (real or personal, pick) and logically. Real property is tangible, while patents have no physical existence. When trespassers occupy real property, the land’s utility to the owner decreases. No reduction in the utility of a patented innovation results from the infringer’s use of it. The knowledge contained in a patent is a public good, in that the use of a patent does not reduce the future utility of the idea. The “taking” of a patent is, then, the making of a public good out of that which already was a public good. This illogicality is already latent in the statutory scheme of 1498, and I’m not sure why we would want to extend it further, by exercising the statutory taking power widely, without a strong need to do so.

 

Why do we have Patents?

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The principal argument for a patent system is that patents incentivize inventors to invent. Generally speaking, the logic proceeds as follows: We want law to make life more efficient (to increase happiness) and increased knowledge and new technological processes make life more efficient. Therefore, we want to increase our knowledge and improve existing processes. People only (or primarily) produce for pecuniary gain and therefore people will not produce / invest time or money in new processes unless they see a future payoff. So, to maximize our knowledge and improve existing processes we must protect investments and guarantee future payoffs. Many of these suppositions are questionable, but the bottom line should be clear: patents increase well being byi incentivizine authors to invest time and money in their art.
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The principal argument for a patent system is that patents incentivize inventors to invent. Generally speaking, the logic proceeds as follows: We want law to make life more efficient (to increase happiness) and increased knowledge and new technological processes make life more efficient. Therefore, we want to increase our knowledge and improve existing processes. People only (or primarily) produce for pecuniary gain and therefore people will not produce / invest time or money in new processes unless they see a future payoff. A huge number of great inventions have sprung from the zeal of inventors committed to science or the sheer enjoyment of tinkering in a lab or shop. Similarly, most drug discoveries occur not in pursuit of compensation from pharmaceutical companies, but from competition for NIH and NSA grants to university research labs. Most inventors never realize much profit from their inventions, but invent compulsively anyways, due to curiosity and the chance of being someone who matters. I do recognize, however, that some inventions occur in a corporate context where patents allow higher profits. So, to maximize our knowledge and improve existing processes we must protect investments and guarantee future payoffs. Many of these suppositions are questionable, but the bottom line should be clear: patents increase well being by incentivizing authors to invest time and money in their art.

I just don’t see “art” in general as being incentivized by wealth. Artists continue to do what they do despite extreme poverty in many cases. The personal or spiritual rewards can make it worthwhile. The few artists that achieve prominence and riches probably did not enter the business with that goal in mind. Might the same be true of inventors? I think the joy of discovery through invention might be a reward in and of itself.

 
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There are many historical and emerging arguments against patent systems. For one, patents can be quite obstructive and create gridlock. Michael Heller calls this effect the “anti-commons”: too many people have too many rights. An “anti-commons” prevents the holders of these rights from assembling them, which decreases social-welfare. His most comtemporarily relevant example is in biotechnology. To develop new drugs, companies often require the license of patents that belong to other companies. However, as more and more licenses are required, the bargaining and transaction costs may become execssive and outweigh the future financial expected value of a marketable drug. Here, Heller argues, the patent system works backwards and consequently produces the opposite goal of what it is designed to do: increase social welfare. Accordingly, the latest and greatest Viagra may be stuck in the labs because the costs of developing it are too prohibitive.
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There are many historical and emerging arguments against patent systems. For one, patents can be quite obstructive and create gridlock. Michael Heller calls this effect the “anti-commons”: too many people have too many rights. An “anti-commons” prevents the holders of these rights from assembling them, which decreases social-welfare. His most contemporarily relevant example is in biotechnology. To develop new drugs, companies often require the license of patents that belong to other companies. However, as more and more licenses are required, the bargaining and transaction costs may become execessive and outweigh the future financial expected value of a marketable drug. Here, Heller argues, the patent system works backwards and consequently produces the opposite goal of what it is designed to do: increase social welfare. Accordingly, the latest and greatest Viagra may be stuck in the labs because the costs of developing it are too prohibitive.

“Patent thickets” are a major problem preventing innovation in industries that require the coordinated use technologies owned by competing market participants. These problems are especially urgent in software and pharmaceuticals, but that is because those are the areas in which patents are most prominent. Patents are the problem. Also, perhaps mentioning a drug other than Viagra might do more justice to the gravity of the situation. You could talk about the (recent) impossibility of bringing to market a second test for breast cancer, because patents on the BRCA-1 and 2 genes prevented it. The ACLU and PubPat? overturned the patent in court, but that solution was not so much an overcoming of a patent thicket as an elimination of the patent itself.

 

How are we fixing the the System?

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Various methods of curing these defect have been employed. One such solution are patent pools where companies agree to cross-license their patents. The key in any solution is to strike a balance between the “patent” framework and the “no patent” framework. Patents are designed to protect the gains an inventor will receive in order to incentivize investment. Such a justification is rooted in the fact that there is a social gain from new and better iPads (pick your favorite gizmo). But, clearly, at some point we tread into the realm of the “anti-commons” where we are protecting too many rights and social welfare declines due to obstruction. On this side of the continuum, the patent system mainly functions to line the pockets of the elite. In many areas, this consequence is unfortunate but not tragic. However, in health care, the consequence is absurd—people are dying because companies want to get rich. This must change.
>
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Various methods of curing these defect have been employed. One such solution are patent pools where companies agree to cross-license their patents. The key in any solution is to strike a balance between the “patent” framework and the “no patent” framework. Patents are designed to protect the gains an inventor will receive in order to incentivize investment. Patents aren’t supposed to protect profits, primarily, but should only do so insofar as is necessary to promote innovation. Usually, this means that they are not needed at all, and the gains to companies are pork. Such a justification is rooted in the fact that there is a social gain from new and better iPads (pick your favorite gizmo). But, clearly, at some point we tread into the realm of the “anti-commons” where we are protecting too many rights and social welfare declines due to obstruction. On this side of the continuum, the patent system mainly functions to line the pockets of the elite. In many areas, this consequence is unfortunate but not tragic. However, in health care, the consequence is absurd—people are dying because companies want to get rich. This must change.

This seems like a restatement of the problem, or an expansion of its scope. People are dying, true, but how can this be changed? It would be cool to hear an explanation of the administration of a patent pool, or the mechanisms it provides for overcoming blockages. The way I understand it, a patent pool has the goal of mediating autonomy (patent rights and associated profits) with collaboration (licensing and sharing technology). I’d be interested in hearing how this works in practice.

Also, according to Heller, a patent pool must control entry and exit to guarantee fair play. I’m not sure how one includes all those who wish to make use of the technologies in a patent pool, while also excluding those who will not contribute to the welfare of the pool. Isn’t a patent pool like an illegal trust, fundamentally anti-competitive? And yet, if no one is excluded, the patents lose meaning. The idea of a patent pool seems self-contradictory.

 

Another way to change the System

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Let me suggest an alternative tactic that is being bandied about by academics but is rarely used by the holder of the tactic. Take or threaten to take people's patents back. Patents are only good if they are being used. Pharmaceutical drug patents are only good if the drugs they produce are affordable to the people that need them. As the profit margins of drug companies expand to appalling margins, the government should threaten to take the lifeblood out of these companies' balance sheet: their patents. This would be real health care reform. Because the root problem has never actually been coverage but the fact that people need coverage because health care is so damn expensive.
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Let me suggest an alternative tactic that is being bandied about by academics but is rarely used by the holder of the tactic. Take or threaten to take people's patents back. Patents are only good if they are being used. Pharmaceutical drug patents are only good if the drugs they produce are affordable to the people that need them. Patents for drugs that are in production are being used. Just not enough. As the profit margins of drug companies expand to appalling levels, the government should threaten to take the lifeblood out of these companies' balance sheet: their patents. This would be real health care reform. Because the root problem has never actually been coverage but the fact that people need coverage because health care is so damn expensive.

Doctor visits, hospital procedures, and outpatient care are all very expensive, and these costs do not turn on drug prices. Legislation to create public insurance has always been needed for these reasons, too.

Another point to consider is that patent monopolies in healthcare allow a patent holder to set the supply curve for a drug is wherever the patent holder wants. This distorts the intersection point of the supply curve with the (socially-determined) demand curve. A taking would not solve this pricing problem, but would make the public foot the bill. Competition between drug makers would, however, solve the pricing problem, and this is possible if patents are eliminated.

 Employing such a tactic could bring about a revolution in health care practices. The Government could (but realistically will not) strong arm Merck, Pfizer, and the like into affordable drugs. The decree would be as follows: lower the price on Drug X or I will own drug X. Equally important, the Government could broker cross-licensing agreements and avoid the gridlock Heller deplores. The decree would be as follows: license your patent to company X or I will do it for you. Both of these decrees seem to be well within the Constitutional definition of “public use.” Is there anything more important and more used by the public use than health care? These intrusions would also be well protected by statutory language as use for the “United States.”
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This forced price reduction did actually occur with AIDS drugs in the early 2000s, but only with respect to Africa and other developing countries. The way that this was accomplished was not through takings, but through Clinton’s promise that the US would not enforce US patents against African countries that chose to infringe by buying generic drugs. The solution was not a taking, but the abolition of the right through abolition of the remedy. This could be accomplished with pharmaceutical patents generally, through elimination of patents, provided that the government creates a mechanism to pay for clinical trials. As I mentioned above, the basic research is done at universities, and is government funded. Also, Switzerland’s pharmaceutical industry flourished without patents on pharmaceutical products, only processes, up until 1978. Also, other mechanisms besides patents exist can yield profits for innovation. The cost of copying a technology through reverse-engineering is estimated to be somewhere around 50%, on average, resulting in a partial advantage for innovators, and a big advantage goes to a first-movers in a marketplace. I’m not sure that these advantages are enough to cover the cost of clinical trials, but with government funding for that, these forces would suffice to make almost all patented technologies producible, and the innovations profitable, including information technology.
 For a number of political reasons this revolution will probably be deferred to another generation's future. Nevertheless, such a vision would be consistent with the Constitution's decree to protect the “general welfare.” It would strike that delicate balance between protecting the inventor's enterprise and ensuring public benefit.
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It sounds almost like you’re admitting that inventors “deserve” to profit, a common misinterpretation. Inventors should profit only if that incentivizes innovation. Patents are often used quite openly for rent-seeking. Patent holding companies are one example. Another is the push by the Chinese government for Chinese companies to apply for more patents at the World Intellectual Property Organization, in order to show off their financial strength and attract investors. This behavior shows the blatantly profit-driven side to patents.

With regard to anti-commons, Bill Gates once said, “If people had understood how patents would be granted when most of today's ideas were invented, and had taken out patents, the industry would be at a complete standstill today.” Even today, the company evaluates strategic decisions based on how incompatibilities and technological barriers will be created with its software releases. Patents make the financial winners those who prevent innovation, not those who create it. I think the best solution may be the elimination of patents altogether. This only requires a congressional majority.

I just want to mention that I really enjoyed reading and commenting on your paper. Having thought about the Heller article and your other points, including the takings idea, I have some new ideas I want to incorporate into my own paper on patents. I hope my suggestions haven’t been too disheartening. Thanks for writing a new second paper that’s easy to comment on. Best of luck with revisions.

Sam Wells - 26 April 2010

 

My last paper was inconsistent with the purpose of this exercise (writing and editing). Please edit this one instead (unless you really want to edit the other one, which is still here).

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-- MatthewZorn - 20 April 2010
 
 
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A stream of my consciousness

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What is a Patent?

 
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Under the Consititution, the Government is entrusted to “Progress of Science and useful Arts, by securing for limited to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.” Pursuant to this goal, Congress passed Title 35 of the US Code to govern the rules and regulations on patentability and remedies for patent holders against those who infringe patents.
 
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As an amendment to the 2006 The Comprehensive Immigration Reform Act, the United States Congress declared that: “English is the common and unifying language of the United States.” Apparently, the 2006 not only decided that it was within its power to but also to invent and declare facts. So what is the rule or principle here? The language of the majority is a unifying language. Seems, rather odd to me. Does a unifying language help people understand each other?
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Patents “shall have the attributes of personal property.” Patent holders have the right of possession, right to sell, and the right to exclude. In addition, similar to property rights, the government has a right the right to use a patent as long as it gives the owner just compensation. In regards to real property, Kelo ruled that a government takings of private land for economic development constitutes “public use” and is therefore consitutional. Patents may or may not be real property and in any case are not governed by the same principles that real property (federal vs. state). Nevertheless, the majority's rationale in interpreting “public use” can be helpful—and instructive—in interpreting the similar “for the United States” provision in USC 28 S 1498.
 
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Lawspeak is the unifying language of law school and law. Language, in the abstract sense of the word, is always necessary for communication. In the absence of telepathy, language acts the sieve that quantizes thoughts, feelings, and ideas for others to process. For the idiom fans among us, it gets us all on the same page. For fans of demonstration, language helps me turn this into this. In this sense,“lawspeak” is a language too. Lawspeak allows us to shove “the most complete form of ownership a person can have in a freehold estate” into the box of “fee simple absolute.” The dictionary of lawspeak is filled with terms of art like “rational basis” and “strict scrutiny” that are express imprecise points on a spectrum of judicial review.1 And then, there are the empty terms like “reasonable” that are so amorphous that they could mean pretty much anything depending on its context.
 
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Whenever we quantize ideas, information loss and communication gaps are inherent. Which is why, to get a true understanding of law, the law student must see lawspeak in context. (fn) No competent Constitutional Law professor should breeze past Marshall's dissenting words in San Antonio v. Rodriguez reminding its readers that cases do not always “[neatly]” fall into boxes. Marshall's words here serve as a reminder that the classifications, categories, and rules judges employ are not things in themselves. Rather, these categories exist as necessary, but highly crude representations of things or principles—approximations. We invent lawspeak to facilitate communication, but in the process sacrifice precision in understanding.
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Why do we have Patents?

 
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Law school teaches its students to cling to these half-baked concepts, rules, and terms as if they were real life actual things. And inevitably, these new alive things take on lives of their own, divorcing themselves from the things they were supposed to represent. And you get lost in rules. You get asked by your criminal law professor whether a sailor who is trapped on a dingy in the middle of the ocean can legally kill a fellow sailor for food. And then you get asked whether the uninvolved sailor bystander could be charged as an accomplice. And when multiple law students chime in, restating, agreeing and arguing about what should be a non-law, you realize that most lawspeak no longer represents the things it was supposed to represent. You get a bout of morning sickness reading Stewart's opinion in Geduldig v. Aiello.
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The principal argument for a patent system is that patents incentivize inventors to invent. Generally speaking, the logic proceeds as follows: We want law to make life more efficient (to increase happiness) and increased knowledge and new technological processes make life more efficient. Therefore, we want to increase our knowledge and improve existing processes. People only (or primarily) produce for pecuniary gain and therefore people will not produce / invest time or money in new processes unless they see a future payoff. So, to maximize our knowledge and improve existing processes we must protect investments and guarantee future payoffs. Many of these suppositions are questionable, but the bottom line should be clear: patents increase well being byi incentivizine authors to invest time and money in their art.
 
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And, it is at this point of realization2 that one becomes aware of the delicious irony that looms in the background of the general law school experience. You begin to see lawspeak as it really exists, abstract concepts laid on top of other abstracts concepts, piled so high that only a $150,000 bill can reach it. You begin to truly feel Marshall's dissenting words. That the true function of lawspeak is to conceal not explain, a facade for judges to hide behind. Most of all, you learn that you are in the ultimate Arnoldian instution and that lawspeak is a perverse type of fool's gold: an intellectual currency that should help express ideas but instead functions as a barrier, whose effectiveness is measured by its ability to make others misunderstand ideas.3 And you begin to wonder whether the primary reason law professors insist on teaching lawspeak is because they don't understand anything else. Or perhaps unconsciously these professors know that their tenure depends on lawspeak's existence and opaqueness.
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There are many historical and emerging arguments against patent systems. For one, patents can be quite obstructive and create gridlock. Michael Heller calls this effect the “anti-commons”: too many people have too many rights. An “anti-commons” prevents the holders of these rights from assembling them, which decreases social-welfare. His most comtemporarily relevant example is in biotechnology. To develop new drugs, companies often require the license of patents that belong to other companies. However, as more and more licenses are required, the bargaining and transaction costs may become execssive and outweigh the future financial expected value of a marketable drug. Here, Heller argues, the patent system works backwards and consequently produces the opposite goal of what it is designed to do: increase social welfare. Accordingly, the latest and greatest Viagra may be stuck in the labs because the costs of developing it are too prohibitive.
 
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But a true lawyer is not merely a judge or a law professor. A lawyer is an advocate for a client. Which means law school in its current manifestation is not producing lawyers. Being an advocate for a client is not just about reading and interpreting law. It is about addressing client needs that almost always stretch beyond reading and interpreting statutes and caselaw. Or it can be about finding a non-lawspeak way to sell the fools gold back to the vendor. Being a client's advocate, requires knowledge of a different language: the language of society, the very thing lawspeak is supposed to represent.
 
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And so we descend from Mount Justice holding these expensive tablets of knowledge. And as you reach the bottom, you leave behind your verbose language, silly and imprecise metaphors, opaqueness, and clever tricks that initially helped create an understanding--but are now simply in the way of any discernable meaning. You stop editing and talking in lawspeak (because you realize it is just crap). And then you speak in a language everyone will understand--direct and to the point. You say what should have said in far fewer words:
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How are we fixing the the System?

 
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It's all absurd.
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Various methods of curing these defect have been employed. One such solution are patent pools where companies agree to cross-license their patents. The key in any solution is to strike a balance between the “patent” framework and the “no patent” framework. Patents are designed to protect the gains an inventor will receive in order to incentivize investment. Such a justification is rooted in the fact that there is a social gain from new and better iPads (pick your favorite gizmo). But, clearly, at some point we tread into the realm of the “anti-commons” where we are protecting too many rights and social welfare declines due to obstruction. On this side of the continuum, the patent system mainly functions to line the pockets of the elite. In many areas, this consequence is unfortunate but not tragic. However, in health care, the consequence is absurd—people are dying because companies want to get rich. This must change.
 
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Another way to change the System

 
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Let me suggest an alternative tactic that is being bandied about by academics but is rarely used by the holder of the tactic. Take or threaten to take people's patents back. Patents are only good if they are being used. Pharmaceutical drug patents are only good if the drugs they produce are affordable to the people that need them. As the profit margins of drug companies expand to appalling margins, the government should threaten to take the lifeblood out of these companies' balance sheet: their patents. This would be real health care reform. Because the root problem has never actually been coverage but the fact that people need coverage because health care is so damn expensive.
 
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(1) The same can be said “red” and “green” as positions on a color spectrum. Which is an interesting topic in its own right: What is “red”? Obviously, like all colors, the color red is a wavelegnth (according to wikipedia imprecisely 630–740 nm) and so its not a completelyvaucous word. But that is a pretty wide range that shows not all reds are created equal. Two people referring to red will probably be referring to distinctly different things. In some situations, like a traffic light, a large difference will not matter. In other situations, like matching clothes at a Columbia Law social function, the discrepancies in the two reds can be catastrophic. After all, there is nothing worse than mismatching the same color. Thus, when applying the word “red,” the context of the situation is critically important. In theory, a greater understandingcould be reached by using its actual wavelength, or more realistically using other qualifiers like “dark shade of red” or “blood red.”
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Employing such a tactic could bring about a revolution in health care practices. The Government could (but realistically will not) strong arm Merck, Pfizer, and the like into affordable drugs. The decree would be as follows: lower the price on Drug X or I will own drug X. Equally important, the Government could broker cross-licensing agreements and avoid the gridlock Heller deplores. The decree would be as follows: license your patent to company X or I will do it for you. Both of these decrees seem to be well within the Constitutional definition of “public use.” Is there anything more important and more used by the public use than health care? These intrusions would also be well protected by statutory language as use for the “United States.”
 
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For a number of political reasons this revolution will probably be deferred to another generation's future. Nevertheless, such a vision would be consistent with the Constitution's decree to protect the “general welfare.” It would strike that delicate balance between protecting the inventor's enterprise and ensuring public benefit.
 
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(2) Alternative metaphor: It is like digging for three hours to find a glitzy, ornate, treasure chest only to find that it is empty inside. It doesn't really make sense here, or anywhere, but I just keep thinking about it.
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(3) Modern lawspeak and financial derivatives have striking similarities. Part of the reason financial were created was to increase fluidity and make exchange more efficient. Both lawspeak and derivatives are imaginary creations—whose value, as the name would suggest in the latter, is entirely derived from a real life thing. In other words, they are not things in themselves. Neither are inherently bad, and used reasonably provide many positive benefits and improve the quality of their respective systems. But, when abused, each works against what the system is trying to do. Too much lawspeak makes (1) judicial opinions opaque, (2) allows judges to hide their (possibly unjust) reasoning, (3) makes law overly complex that it sucks away efforts that could be used to learn other law skills, (4) can promote an unbalanced way of thinking. Most of all, lawspeak makes the law inaccessible to the people it needs to protect. When abused, financial derivatives make the investment system opaque and add too much risk to the system. Both are practically incomprehensible to the common person, and, often incomprehensible to the people who use them.
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My last paper was inconsistent with the purpose of this exercise (writing and editing). Please edit this one instead (unless you really want to edit the other one, which is still here).
 
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-- MatthewZorn - 20 Apr 2010
 
 
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MatthewZornSecondPaper 4 - 19 Apr 2010 - Main.MatthewZorn
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still work in progress, will be done tomw

A stream of consciousness

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A stream of my consciousness

 

As an amendment to the 2006 The Comprehensive Immigration Reform Act, the United States Congress declared that: “English is the common and unifying language of the United States.” Apparently, the 2006 not only decided that it was within its power to but also to invent and declare facts. So what is the rule or principle here? The language of the majority is a unifying language. Seems, rather odd to me. Does a unifying language help people understand each other?

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Lawspeak is the unifying language of law school and law. Language, in the abstract sense of the word, is always necessary for communication. In the absence of telepathy, language acts the sieve that quantizes thoughts, feelings, and ideas for others to process. For the idiom fans among us, it gets us all on the same page. For fans of demonstration, language helps me turn this into this. In this sense,“lawspeak” is a language too. Lawspeak allows us to shove “the most complete form of ownership a person can have in a freehold estate” into the box of “fee simple absolute.” The dictionary of lawspeak is filled with terms of art like “rational basis” and “strict scrutiny” that are express imprecise points on a spectrum of judicial review. (fn). And then, there are the empty terms like “reasonable” that are so amorphous that they could mean pretty much anything depending on its context.
>
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Lawspeak is the unifying language of law school and law. Language, in the abstract sense of the word, is always necessary for communication. In the absence of telepathy, language acts the sieve that quantizes thoughts, feelings, and ideas for others to process. For the idiom fans among us, it gets us all on the same page. For fans of demonstration, language helps me turn this into this. In this sense,“lawspeak” is a language too. Lawspeak allows us to shove “the most complete form of ownership a person can have in a freehold estate” into the box of “fee simple absolute.” The dictionary of lawspeak is filled with terms of art like “rational basis” and “strict scrutiny” that are express imprecise points on a spectrum of judicial review.1 And then, there are the empty terms like “reasonable” that are so amorphous that they could mean pretty much anything depending on its context.
 Whenever we quantize ideas, information loss and communication gaps are inherent. Which is why, to get a true understanding of law, the law student must see lawspeak in context. (fn) No competent Constitutional Law professor should breeze past Marshall's dissenting words in San Antonio v. Rodriguez reminding its readers that cases do not always “[neatly]” fall into boxes. Marshall's words here serve as a reminder that the classifications, categories, and rules judges employ are not things in themselves. Rather, these categories exist as necessary, but highly crude representations of things or principles—approximations. We invent lawspeak to facilitate communication, but in the process sacrifice precision in understanding.
Changed:
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Law school teaches its students to cling to these half-baked concepts, rules, and terms as if they were real life actual things. And inevitably, these new alive things take on lives of their own, divorcing themselves from the things they were supposed to represent. And you get lost in rules. You get asked by your criminal law professor whether a sailor who is trapped on a dingy in the middle of the ocean can legally kill a fellow sailor for food. And then you get asked whether the uninvolved sailor bystander could be charged as an accomplice. And when multiple law students chime in, restating, agreeing and arguing about what should be a non-law, you realize that most lawspeak no longer represents the things it was supposed to represent.
>
>
Law school teaches its students to cling to these half-baked concepts, rules, and terms as if they were real life actual things. And inevitably, these new alive things take on lives of their own, divorcing themselves from the things they were supposed to represent. And you get lost in rules. You get asked by your criminal law professor whether a sailor who is trapped on a dingy in the middle of the ocean can legally kill a fellow sailor for food. And then you get asked whether the uninvolved sailor bystander could be charged as an accomplice. And when multiple law students chime in, restating, agreeing and arguing about what should be a non-law, you realize that most lawspeak no longer represents the things it was supposed to represent. You get a bout of morning sickness reading Stewart's opinion in Geduldig v. Aiello.
 
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And, it is at this point of realization (fn) that one becomes aware of the delicious irony that looms in the background of the general law school experience. You begin to see lawspeak as it really exists, abstract concepts laid on top of other abstracts concepts, piled so high that only a $150,000 bill can reach it. You begin to truly feel Marshall's dissenting words. That the true function of lawspeak is to conceal not explain, a facade for judges to hide behind. Most of all, you learn that you are in the ultimate Arnoldian instution and that lawspeak is a perverse type of fool's gold: an intellectual currency that should help express ideas but instead functions as a barrier, whose effectiveness is measured by its ability to make others misunderstand ideas. And you begin to wonder whether the primary reason law professors insist on teaching lawspeak is because they don't understand anything else. Or perhaps unconsciously these professors know that their tenure depends on lawspeak's existence and opaqueness.
>
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And, it is at this point of realization2 that one becomes aware of the delicious irony that looms in the background of the general law school experience. You begin to see lawspeak as it really exists, abstract concepts laid on top of other abstracts concepts, piled so high that only a $150,000 bill can reach it. You begin to truly feel Marshall's dissenting words. That the true function of lawspeak is to conceal not explain, a facade for judges to hide behind. Most of all, you learn that you are in the ultimate Arnoldian instution and that lawspeak is a perverse type of fool's gold: an intellectual currency that should help express ideas but instead functions as a barrier, whose effectiveness is measured by its ability to make others misunderstand ideas.3 And you begin to wonder whether the primary reason law professors insist on teaching lawspeak is because they don't understand anything else. Or perhaps unconsciously these professors know that their tenure depends on lawspeak's existence and opaqueness.
 But a true lawyer is not merely a judge or a law professor. A lawyer is an advocate for a client. Which means law school in its current manifestation is not producing lawyers. Being an advocate for a client is not just about reading and interpreting law. It is about addressing client needs that almost always stretch beyond reading and interpreting statutes and caselaw. Or it can be about finding a non-lawspeak way to sell the fools gold back to the vendor. Being a client's advocate, requires knowledge of a different language: the language of society, the very thing lawspeak is supposed to represent.
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 It's all absurd.
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FN: The same can be said “red” and “green” on a color spectrum.
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(1) The same can be said “red” and “green” as positions on a color spectrum. Which is an interesting topic in its own right: What is “red”? Obviously, like all colors, the color red is a wavelegnth (according to wikipedia imprecisely 630–740 nm) and so its not a completelyvaucous word. But that is a pretty wide range that shows not all reds are created equal. Two people referring to red will probably be referring to distinctly different things. In some situations, like a traffic light, a large difference will not matter. In other situations, like matching clothes at a Columbia Law social function, the discrepancies in the two reds can be catastrophic. After all, there is nothing worse than mismatching the same color. Thus, when applying the word “red,” the context of the situation is critically important. In theory, a greater understandingcould be reached by using its actual wavelength, or more realistically using other qualifiers like “dark shade of red” or “blood red.”

(2) Alternative metaphor: It is like digging for three hours to find a glitzy, ornate, treasure chest only to find that it is empty inside. It doesn't really make sense here, or anywhere, but I just keep thinking about it.

(3) Modern lawspeak and financial derivatives have striking similarities. Part of the reason financial were created was to increase fluidity and make exchange more efficient. Both lawspeak and derivatives are imaginary creations—whose value, as the name would suggest in the latter, is entirely derived from a real life thing. In other words, they are not things in themselves. Neither are inherently bad, and used reasonably provide many positive benefits and improve the quality of their respective systems. But, when abused, each works against what the system is trying to do. Too much lawspeak makes (1) judicial opinions opaque, (2) allows judges to hide their (possibly unjust) reasoning, (3) makes law overly complex that it sucks away efforts that could be used to learn other law skills, (4) can promote an unbalanced way of thinking. Most of all, lawspeak makes the law inaccessible to the people it needs to protect. When abused, financial derivatives make the investment system opaque and add too much risk to the system. Both are practically incomprehensible to the common person, and, often incomprehensible to the people who use them.

 
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MatthewZornSecondPaper 3 - 18 Apr 2010 - Main.MatthewZorn
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still work in progress, will be done tomw

A stream of consciousness

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 Law school teaches its students to cling to these half-baked concepts, rules, and terms as if they were real life actual things. And inevitably, these new alive things take on lives of their own, divorcing themselves from the things they were supposed to represent. And you get lost in rules. You get asked by your criminal law professor whether a sailor who is trapped on a dingy in the middle of the ocean can legally kill a fellow sailor for food. And then you get asked whether the uninvolved sailor bystander could be charged as an accomplice. And when multiple law students chime in, restating, agreeing and arguing about what should be a non-law, you realize that most lawspeak no longer represents the things it was supposed to represent.
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And, it is at this point of realization (fn) that one becomes aware of the delicious irony that looms in the background of the general law school experience. You begin to see lawspeak as it really exists, abstract concepts laid on top of other abstracts concepts, piled so high that only a $150,000 bill can reach it. You begin to truly feel Marshall's dissenting words. That the true function of lawspeak is to conceal not explain, a facade for injustice to hide behind. Most of all, you learn that you are in the ultimate Arnoldian instution and that lawspeak is a preverse type of fool's gold: an intellectual currency that should help express ideas but instead functions as a barrier, whose effectiveness is measured by its ability to make others misunderstand ideas. And you begin to wonder whether the primary reason law professors insist on teaching lawspeak is because they don't understand anything else. Or perhaps unconsciously these professors know that their tenure depends on lawspeak's existence and opaqueness.
>
>
And, it is at this point of realization (fn) that one becomes aware of the delicious irony that looms in the background of the general law school experience. You begin to see lawspeak as it really exists, abstract concepts laid on top of other abstracts concepts, piled so high that only a $150,000 bill can reach it. You begin to truly feel Marshall's dissenting words. That the true function of lawspeak is to conceal not explain, a facade for judges to hide behind. Most of all, you learn that you are in the ultimate Arnoldian instution and that lawspeak is a perverse type of fool's gold: an intellectual currency that should help express ideas but instead functions as a barrier, whose effectiveness is measured by its ability to make others misunderstand ideas. And you begin to wonder whether the primary reason law professors insist on teaching lawspeak is because they don't understand anything else. Or perhaps unconsciously these professors know that their tenure depends on lawspeak's existence and opaqueness.
 But a true lawyer is not merely a judge or a law professor. A lawyer is an advocate for a client. Which means law school in its current manifestation is not producing lawyers. Being an advocate for a client is not just about reading and interpreting law. It is about addressing client needs that almost always stretch beyond reading and interpreting statutes and caselaw. Or it can be about finding a non-lawspeak way to sell the fools gold back to the vendor. Being a client's advocate, requires knowledge of a different language: the language of society, the very thing lawspeak is supposed to represent.

MatthewZornSecondPaper 2 - 18 Apr 2010 - Main.MatthewZorn
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Today will be a period of heavy revision, still hammering out some major kinks...
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A stream of consciousness

 
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As an amendment to the 2006 (http://thomas.loc.gov/cgi-bin/bdquery/z?d109:SP4073) The Comprehensive Immigration Reform Act, the United States Congress declared that: “English is the common and unifying language of the United States.” Apparently, the 2006 not only decided that it was within its power to but also to invent and declare facts.
 
Changed:
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Language, in the abstract sense of the word, is always necessary for communication. In the absence of telepathy, language acts the sieve that quantizes our thoughts, feelings, and ideas for others to process. For the idiom fans among us, it gets us all on the same page. Or, for fans of demonstration, language helps me turn this...into this. Lawspeak, in this sense, is a language. For example, Lawspeak allows us to shove “the most complete form of ownership a person can have in a freehold estate” into the box of “fee simple absolute.” The dictionary of Lawspeak is filled with terms of art like “rational basis” and “strict scrutiny” that are express imprecise points on the spectrum of judicial review. (fn). And then, there are empty terms like “reasonable” that are so amorphous that they could mean pretty much anything depending on the context.
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As an amendment to the 2006 The Comprehensive Immigration Reform Act, the United States Congress declared that: “English is the common and unifying language of the United States.” Apparently, the 2006 not only decided that it was within its power to but also to invent and declare facts. So what is the rule or principle here? The language of the majority is a unifying language. Seems, rather odd to me. Does a unifying language help people understand each other?
 
Changed:
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Information loss and communication gaps are inherent whenever we quantize ideas. To get a true understanding of law, the law student must see Lawspeak in context. (fn) Which is why, among other things, no competent Constitutional Law professor should skip Marshall's dissenting words in San Antonio v. Rodriguez where Marshall, in more eloquent words, reminds the law student that cases do not always “[neatly]” fall into boxes. Marshall's words serve as a reminder that the classifications, categories, and rules judges employ are not things in themselves. Rather, these categories exist as necessary, but crude representations of things or principles—approximations. And yet, law school teaches its students to cling to these half-baked concepts, rules, and terms as if they were real life actual things. Law school tells you that necessity is not a defense for murder.
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Lawspeak is the unifying language of law school and law. Language, in the abstract sense of the word, is always necessary for communication. In the absence of telepathy, language acts the sieve that quantizes thoughts, feelings, and ideas for others to process. For the idiom fans among us, it gets us all on the same page. For fans of demonstration, language helps me turn this into this. In this sense,“lawspeak” is a language too. Lawspeak allows us to shove “the most complete form of ownership a person can have in a freehold estate” into the box of “fee simple absolute.” The dictionary of lawspeak is filled with terms of art like “rational basis” and “strict scrutiny” that are express imprecise points on a spectrum of judicial review. (fn). And then, there are the empty terms like “reasonable” that are so amorphous that they could mean pretty much anything depending on its context.
 
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And, it is at this point of realization (fn) that one becomes aware of the delicious irony that looms in the background of the law school experience. You begin to see lawspeak as it really exists, abstract concepts laid on top of other abstracts concepts, piled so high that only the person with a $150,000 diploma can access any of the ones that are helpful. And you begin to realize that law really is ”the ultimate institution” in the Arnoldian sense. For, lawspeak is the ultimate Arnoldian paradox: fools gold that functions not only as the intellectual currency that enables communication among lawyers and judges, but also as a barrier to prevent everyone else from understanding the communication. For the client, the more unhelpful the lawspeak, the more helpful the lawyer.
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Whenever we quantize ideas, information loss and communication gaps are inherent. Which is why, to get a true understanding of law, the law student must see lawspeak in context. (fn) No competent Constitutional Law professor should breeze past Marshall's dissenting words in San Antonio v. Rodriguez reminding its readers that cases do not always “[neatly]” fall into boxes. Marshall's words here serve as a reminder that the classifications, categories, and rules judges employ are not things in themselves. Rather, these categories exist as necessary, but highly crude representations of things or principles—approximations. We invent lawspeak to facilitate communication, but in the process sacrifice precision in understanding.
 
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Because, a true lawyer is an advocate. Lawyers have clients and need to explain these concepts to clients in terms that they can understand. Lawyers need to be able to assess client needs. Because being an advocate is about knowing when to use lawspeak and when not to use lawspeak. Accessing ideas and knowing ideas is a different exercise than communicating ideas. also about about how to speak and navigate the minefield that law creates. or at least should not, be about . And, communicatin no matter how fluent you become in lawspeak, you will only be painting half of a picture because being a lawyer, not a judge or law professor, is not about knowing the half-baked language but about communicating it to clients. Or being a lawyer can be about the art selling the fools gold back to the person who sold it to you. Good lawyers will not ponitificate what the meaning of 'is' is, but will instead say it . about being able to argue over what the definition of what the wor there is a different language needed Lawyers need to know, learn, and perfect another language—one that is not taught in law school.
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Law school teaches its students to cling to these half-baked concepts, rules, and terms as if they were real life actual things. And inevitably, these new alive things take on lives of their own, divorcing themselves from the things they were supposed to represent. And you get lost in rules. You get asked by your criminal law professor whether a sailor who is trapped on a dingy in the middle of the ocean can legally kill a fellow sailor for food. And then you get asked whether the uninvolved sailor bystander could be charged as an accomplice. And when multiple law students chime in, restating, agreeing and arguing about what should be a non-law, you realize that most lawspeak no longer represents the things it was supposed to represent.
 
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And, it is at this point of realization (fn) that one becomes aware of the delicious irony that looms in the background of the general law school experience. You begin to see lawspeak as it really exists, abstract concepts laid on top of other abstracts concepts, piled so high that only a $150,000 bill can reach it. You begin to truly feel Marshall's dissenting words. That the true function of lawspeak is to conceal not explain, a facade for injustice to hide behind. Most of all, you learn that you are in the ultimate Arnoldian instution and that lawspeak is a preverse type of fool's gold: an intellectual currency that should help express ideas but instead functions as a barrier, whose effectiveness is measured by its ability to make others misunderstand ideas. And you begin to wonder whether the primary reason law professors insist on teaching lawspeak is because they don't understand anything else. Or perhaps unconsciously these professors know that their tenure depends on lawspeak's existence and opaqueness.
 
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FN. An alternative metaphor, I thought of, for the imaginative among us: reading a Con Law case is sort of like waiting on line for a shitty like commuting for hours on the Underground from outer London to visit Buckingham Palace, wait hours on line admiring it from the outside, only to walk inside and find that .
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But a true lawyer is not merely a judge or a law professor. A lawyer is an advocate for a client. Which means law school in its current manifestation is not producing lawyers. Being an advocate for a client is not just about reading and interpreting law. It is about addressing client needs that almost always stretch beyond reading and interpreting statutes and caselaw. Or it can be about finding a non-lawspeak way to sell the fools gold back to the vendor. Being a client's advocate, requires knowledge of a different language: the language of society, the very thing lawspeak is supposed to represent.
 
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FN. Then again, such a posture may be appropriate for something that amounts to little more than an organized ponzi scheme.
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And so we descend from Mount Justice holding these expensive tablets of knowledge. And as you reach the bottom, you leave behind your verbose language, silly and imprecise metaphors, opaqueness, and clever tricks that initially helped create an understanding--but are now simply in the way of any discernable meaning. You stop editing and talking in lawspeak (because you realize it is just crap). And then you speak in a language everyone will understand--direct and to the point. You say what should have said in far fewer words:

It's all absurd.

 FN: The same can be said “red” and “green” on a color spectrum.

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MatthewZornSecondPaper 1 - 17 Apr 2010 - Main.MatthewZorn
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Today will be a period of heavy revision, still hammering out some major kinks...

As an amendment to the 2006 (http://thomas.loc.gov/cgi-bin/bdquery/z?d109:SP4073) The Comprehensive Immigration Reform Act, the United States Congress declared that: “English is the common and unifying language of the United States.” Apparently, the 2006 not only decided that it was within its power to but also to invent and declare facts.

Language, in the abstract sense of the word, is always necessary for communication. In the absence of telepathy, language acts the sieve that quantizes our thoughts, feelings, and ideas for others to process. For the idiom fans among us, it gets us all on the same page. Or, for fans of demonstration, language helps me turn this...into this. Lawspeak, in this sense, is a language. For example, Lawspeak allows us to shove “the most complete form of ownership a person can have in a freehold estate” into the box of “fee simple absolute.” The dictionary of Lawspeak is filled with terms of art like “rational basis” and “strict scrutiny” that are express imprecise points on the spectrum of judicial review. (fn). And then, there are empty terms like “reasonable” that are so amorphous that they could mean pretty much anything depending on the context.

Information loss and communication gaps are inherent whenever we quantize ideas. To get a true understanding of law, the law student must see Lawspeak in context. (fn) Which is why, among other things, no competent Constitutional Law professor should skip Marshall's dissenting words in San Antonio v. Rodriguez where Marshall, in more eloquent words, reminds the law student that cases do not always “[neatly]” fall into boxes. Marshall's words serve as a reminder that the classifications, categories, and rules judges employ are not things in themselves. Rather, these categories exist as necessary, but crude representations of things or principles—approximations. And yet, law school teaches its students to cling to these half-baked concepts, rules, and terms as if they were real life actual things. Law school tells you that necessity is not a defense for murder.

And, it is at this point of realization (fn) that one becomes aware of the delicious irony that looms in the background of the law school experience. You begin to see lawspeak as it really exists, abstract concepts laid on top of other abstracts concepts, piled so high that only the person with a $150,000 diploma can access any of the ones that are helpful. And you begin to realize that law really is ”the ultimate institution” in the Arnoldian sense. For, lawspeak is the ultimate Arnoldian paradox: fools gold that functions not only as the intellectual currency that enables communication among lawyers and judges, but also as a barrier to prevent everyone else from understanding the communication. For the client, the more unhelpful the lawspeak, the more helpful the lawyer.

Because, a true lawyer is an advocate. Lawyers have clients and need to explain these concepts to clients in terms that they can understand. Lawyers need to be able to assess client needs. Because being an advocate is about knowing when to use lawspeak and when not to use lawspeak. Accessing ideas and knowing ideas is a different exercise than communicating ideas. also about about how to speak and navigate the minefield that law creates. or at least should not, be about . And, communicatin no matter how fluent you become in lawspeak, you will only be painting half of a picture because being a lawyer, not a judge or law professor, is not about knowing the half-baked language but about communicating it to clients. Or being a lawyer can be about the art selling the fools gold back to the person who sold it to you. Good lawyers will not ponitificate what the meaning of 'is' is, but will instead say it . about being able to argue over what the definition of what the wor there is a different language needed Lawyers need to know, learn, and perfect another language—one that is not taught in law school.

FN. An alternative metaphor, I thought of, for the imaginative among us: reading a Con Law case is sort of like waiting on line for a shitty like commuting for hours on the Underground from outer London to visit Buckingham Palace, wait hours on line admiring it from the outside, only to walk inside and find that .

FN. Then again, such a posture may be appropriate for something that amounts to little more than an organized ponzi scheme.

FN: The same can be said “red” and “green” on a color spectrum.

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Revision 13r13 - 13 Jan 2012 - 23:34:38 - IanSullivan
Revision 12r12 - 15 Jul 2010 - 18:18:29 - MatthewZorn
Revision 11r11 - 28 May 2010 - 17:04:06 - MatthewZorn
Revision 10r10 - 28 May 2010 - 01:29:16 - MatthewZorn
Revision 9r9 - 26 May 2010 - 20:48:20 - SamWells
Revision 8r8 - 21 May 2010 - 17:16:17 - MatthewZorn
Revision 7r7 - 01 May 2010 - 17:18:46 - MatthewZorn
Revision 6r6 - 26 Apr 2010 - 21:17:39 - SamWells
Revision 5r5 - 20 Apr 2010 - 16:32:52 - MatthewZorn
Revision 4r4 - 19 Apr 2010 - 06:30:50 - MatthewZorn
Revision 3r3 - 18 Apr 2010 - 14:55:35 - MatthewZorn
Revision 2r2 - 18 Apr 2010 - 01:12:11 - MatthewZorn
Revision 1r1 - 17 Apr 2010 - 11:07:06 - MatthewZorn
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