Patents and The Prior Art Blog : The Doctrine of Sovereign Immunity : Legal Modernism and History : King Henry II and the Constitutions of Clarendon

We ran by chance today across The Prior Art, a new blog started this month by Joe Mullin, who describes himself as:

a reporter for the San Francisco and Los Angeles Daily Journals, covering intellectual property law.

We noted with particular interest his posting Sovereign Immunity at Street Level, citing to Peter Lattman at the Wall Street Journal Law Blog and his posting titled Critics Take Aim at California’s Patent Shield.

State universities such as the University of California claim to be beneficiaries of the doctrine of sovereign immunity, according to which THEY can sue private citizens for patent or copyright infringement of patents or copyrights owned by such universities, but not vice versa, since such universities are allegedly immune from such suits through the sovereign immunity doctrine.

The sovereign immunity doctrine is of course a legal fiction, as documented by the exceptions to that doctrine:

Suits brought by the United States… Suits brought by another state… Suits in which the Supreme Court is reviewing the decision of a state court… Suits filed against state officials under the “stripping doctrine”… Suits brought against a political subdivision of a state… Suits as to which Congress has abrogated the states’ Eleventh Amendment immunity….”

Essentially, the sovereign immunity doctrine is a modern legal “double standard” of the kind which people in power historically try to apply to ruling institutions (and thus to themselves and their vested interests), regardless of whether those institutions be of government or of religion.

The classic example here is the struggle over the double standard of the Church in England at the time of King Henry II and Archbishop Thomas Becket. Ecclesiastical servants (about one of every six of the population in those days) benefitted from the “sovereign immunity” of the Church and were not tried for crimes in secular courts, but rather in ecclesiastical courts, where leniency or exculpation was practically guaranteed.

It was this battle between Henry II and Thomas Becket – which Becket rightfully and thankfully lost – that was a landmark in the development of legal modernism in England and which laid the basis for modern English law and the Rule of Law in modern Western Civilization. As written at

Legal Reforms – Henry introduced several major reforms. Prior to 1166 trial by ordeal was a common way of determining guilt or innocence in criminal cases. Under this system, an accused person might have to pick up a red hot bar of iron, or pluck a stone out of a boiling cauldron. If their hand had begun to heal after three days they were considered to have God on their side, affirming their innocence. One has to wonder how many “not guilty” verdicts were rendered by this system! Henry replaced this rather painful system with a jury of 12 men. He also introduced the first personal property tax. At the same time he forced Wales to at least nominally acknowledge the sovereignty of the English crown.

The Constitutions of Clarendon in the year 1164 were thus at their core not a “personal” battle between Henry II and Thomas Becket, but rather a battle between the enlightened forces of the future against the dark religious and establishment forces of the past. As written at

The Constitutions were composed of 16 articles, which laid out the extent of papal influence in the realm and the degree to which church members were subservient to the crown and English legal custom. The majority of the Constitution was simply a restatement of English custom and practice, but severe controversy erupted over two clauses which made “criminous clerks” (i.e. clerics accused of a crime) answerable to the legal authority of crown courts rather than ecclesiastical courts, and prevented appeals to the church in Rome without royal permission.

The church leaders in England, including Archbishop of Canterbury Thomas a Becket, reluctantly agreed to the provisions. When Pope Alexander condemned the agreement, Becket reversed his field and also condemned the Constitutions. This led to bitter conflict between Becket and Henry, conflict which finally ended in Becket’s murder in 1170. After the murder Henry revoked the two controversial clauses, but the rest of the Constitutions remained in effect and were integrated into the common law of England.

This task of destroying ancient vestiges of power in England was thus not finished, however, until the rule of King Henry VIII:

In 1220, Becket’s remains were relocated … to … the recently completed Trinity Chapel where it stood until it was destroyed in 1538…. This was done on orders from King Henry VIII as vengeance for his ancestor, Henry II. The king also destroyed Becket’s bones and ordered that all mention of his name be obliterated.

England at that time finally shook off this ancient loadstone and was then in a position to start to become one of the world’s leading powers, unencumbered by “sovereign immunities”.

The idea that any State is somehow “above the law” or “‘immune from the Rule of Law” in any manner is a rustic notion propagated in our day by dark age nostalgia and historically uninformed judges and Supreme Court Justices, some of whom seem to have lost sight of what the trend of modern law is and what the justifications for the Rule of Law are all about.

As a matter of constitutional law, we agree fully with Stanford Professor Mark Lemley, quoted in Peter Lattman’s posting:

The underlying problem is that the Supreme Court is applying an antiquated doctrine — the 11th Amendment — to circumstances in which it was never intended to apply … The Framers never contemplated states suing people for patent infringement.

Whenever a State claims rights that the citizens do not have, you have the beginnings of tyranny. When the top judges in the land affirm such claims to be the law of the land, the legal system has a significant problem. Indeed, to the degree that States themselves claim not to be bound by the laws of the land, so also shall their subjects follow suit.