The High Court's Artificial And Fictitious Patent Test: Part 1
Law360, New York ( July 5, 2016, 12:58 PM EDT) -- As every first-year law student learns, the U. S. Supreme Court says what the law is,[1] and lower courts (as well as attorneys) have a duty to respect it. [2] In crafting the law, Supreme Court justices are supposed to exercise self-restraint using stare decisis as their guide. [3] Having observed that too many judicial opinions provide an appearance of stare decisis while actually straying from it, Justice Benjamin N. Cardozo cautioned in his article "A Ministry of Justice," "[t]here is a loss too of simplicity and directness, an increasing aspect of unreality, of something artificial and fictitious, when judges mask a change of substance, or gloss over its importance, by the suggestion of a consistency that is merely verbal and scholastic. "[4] When the Supreme Court ignores this advice, it creates "artificial and fictitious" law that we attorneys must nonetheless respect and rely upon when representing and counseling clients. . . .
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