Although we supported the recent nomination of John G. Roberts to the position of Chief Justice of the Supreme Court (see here and here), we are very disturbed by a quotation used in the concurring opinion written by Roberts in eBay v. MercExchange ___ U.S. ___, No. 05-130 (2006), slip opinion.
“Discretion is not whim, and limiting discretion according to legal standards helps promote the basic principle of justice that like cases should be decided alike. Martin v. Franklin Capital Corp., 546 U. S. ___, ___ (2005) (slip op., at 6). When it comes to discerning and applying those standards, in this area as others, ‘a page of history is worth a volume of logic.’ New York Trust Co. v. Eisner, 256 U. S. 345, 349 (1921) (opinion for the Court by Holmes, J.).”
The first statement can be easily accepted as a legitimate judicial principle.
However, the words of Justice Holmes quoted by Roberts at the end are a cause for some concern, as this is not the first time that Roberts has used this quotation in writing an opinion. (See his dissent in United States v. Jackson, where, in fact, we agree with his dissent, commented by Orin Kerr at the Volokh Conspiracy.)
Holmes has many great quotations, but this is not one of them.
For thousands of years, mankind thought that the world was flat and that the Sun revolved around the Earth, but this was not so. Logic – and not the millions of erred pages of history – were ultimately determinative.
Science is not law, but law is also a science.
Law can not afford to rest on historical practices if those practices no longer satisfy the modern needs of the social order. It surely can not be a principle of modern law that history overrides logic, where logic is in the right. Hence, the exercise of discretion does not always conform to the pages of history if the modern era demands a different solution.
It is of course true that the law is very conservative by nature and that historical precedents rule until overturned. However, as far as the issues of discretion and patent law are concerned, a page of history will not help to resolve the current chaos in patent law. That chaos is caused in part by the application of outdated and inapplicable historical principles to a new emerging digital world and in part caused by the legislative and judicial formulation of what have proven to be inadequate new legal principles for that world.
The legislature and the judiciary are thus called upon to remedy the current situation. Accordingly, we suggest to Chief Justice Roberts that the correct quotation from Holmes to employ in making decisions on the current chaos in patent law is the following one:
“I find the great thing in this world is not so much where we stand, as in what direction we are moving … we must sail sometimes with the wind and sometimes against it, but we must sail, and not drift, nor lie at anchor.”
Justice Roberts, it is time to “lift anchor”.