Tuesday, December 06, 2005

The Supreme Court and the Law

To paraphrase Justice Holmes, the law is an educated guess made today about what the courts will decide tomorrow. Whatever a philosopher may think of this definition, it does a pretty good job of describing what is meant when a lawyer says that the law is such and such.

One problem though should immediately be obvious: which courts are the ones that count?

In many cases, cases involving contracts and automobile accidents and leases and insurance policies and the ownership of cats, and things like that, the relevant courts are those of the states, not those of the federal government. On the other hand, in many other types of cases, especially those involving federal statutes and, of course, the federal Constitution, it is the federal courts that count. And, of course, in those federal cases there is only one court that ultimately counts: the Supreme Court of the United States.

I learned this lesson many years ago when I had taken my discharge from the Army overseas and, after spending six months in Germany, had secured a job as an associate with a Wall Street law firm: the firm's address in fact was ``One Wall Street.''

At that time the firm did very little litigation, but somehow, perhaps in a fit of absent mindedness, it had agreed to represent the defendant in a case where the plaintiff charged that our client had unfairly copied the appearance of the plaintiff's fingernail clippers. As the new boy in the office, I was given, as one of my assignments, the responsibility of doing research and writing memoranda about the unfair copying of fingernail clippers.

I thus found myself spending days on end in the reading room of the New York Public Library looking at yellowing copies of Messer und Scherer---that is, Knives and Scissors---a publication of the Solingen steel industry, research that for the most part supported the conclusion that if you have seen one fingernail clipper you have seen them all. I also spent a great deal of time in law libraries doing research about the law of unfair competition, and particularly about the tort of ``passing off'' one's goods as another's.

And then one morning, while I was reading advance sheets recounting what had happened recently in the Supreme Court, I came across a report that the Court had agreed to review two cases where the issue was whether state causes of action for ``passing off'' violated the exclusivity of the Patent Clause of the federal constitution. I immediately rushed---I think that I really did run---to the office of the partner who was in charge of the fingernail clipper case to tell him that the Supreme Court might soon decide that the plaintiff's cause of action was non-existent.

The partner in charge was not impressed. He knew enough about the law of unfair competition to know that the Supreme Court would never abolish it.

So it was with considerable satisfaction that, some months latter, I was able to phone that partner and the associates who were attending a hearing in Connecticut in the fingernail clipper case and inform them that the Supreme Court had just decided* that state law may not prohibit the copying of an article---such as a fingernail clipper---that is not patented or copyrighted.

I think that there is a moral there somewhere.

* In Sears, Roebuck & Co. v. Stiffel Company and Compco Corp. v. DayBrite Lighting, Inc.


Post a Comment

<< Home