Justice Sotomayor on administrative law’s “stacked deck”

Last week the Supreme Court heard oral argument in Return Mail Inc. v. USPS, posing the patent law issue (to quote SCOTUSBlog) of “Whether the government is a ‘person’ who may petition to institute review proceedings under the Leahy-Smith America Invents Act.” On pp. 30-31 of the transcript, Justice Sonia Sotomayor referred favorably to the Cato Institute’s brief on the unique dangers that can arise when federal agencies litigate before tribunals operated by federal agencies.

And that wasn’t even the best part! This was, from her comments immediately afterward, on the failure of the law to specify whether the word “person” includes the government:

It does seem like the deck is stacked against a private citizen who is dragged into these proceedings. They’ve got an executive agency acting as judge with an executive director who can pick the judges, who can substitute judges, can reexamine what those judges say, and change the ruling, and you’ve got another government agency being the prosecutor at the same time.

In those situations, shouldn’t you have a clear and express rule?

3 Comments

  • Some libertarian intellectuals who ought to know better (eg are usually skeptical of lawsuits that enrich parasites) have an odd affection for software patents that should never have been granted– vague, obvious to one “proficient in the art”, or already invented by someone else. There is a cargo-cult reverence for anything that can be packaged as “property,” even if it was created by error in the Patent Office.

    • Not really clear how this comment relates to anything. The distinctive question under consideration at the high court, of whether the federal government can intervene as in effect a litigant in its own process, applies equally no matter what subject matter there might be to a patent, whether mechanical, biotechnology, software, or whatever.

      For what it’s worth, most references to software patents at this website have been implicitly skeptical of the breadth of legal protection granted to them. Whatever group of libertarian intellectuals you may have in mind as unduly reverent toward such patents, they are probably well aware that libertarians as a group take divergent positions and that there is no enforcement of any line.

      https://www.overlawyered.com/?s=%22software+patent%22

    • “have an odd affection for software patents that should never have been granted– vague, obvious to one “proficient in the art”, or already invented by someone else.”

      My favorites have been the on a computer / the internet.

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