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I don't follow. If a judge tosses out a bad suit, it is a good thing. If they toss out a good suit, that's bad. We want judges to do the right thing.

Your view is what: that we don't want judges doing the right thing because the legal systems is somehow karmicly bound to follow it with a bad decision in some other case?

To hell with that. Posner is a hero right now. I say we celebrate.




We want judges to uphold the law, not rewrite it. We have legislators for doing that, and it is very much by design that those jobs are separate.

If there are bad laws on the books that are only sporadically enforced, then people are being denied the very fundamental right of equal protection. That's never good in the long run.


If you want judges to uphold the law, you must remember that the law allows for jurisprudent behaviour from judges that shape internal problems of the law and legal systems.

That is to be upheld too. There are bad cases that try to use bad laws, this was the one. You seem to be on the other side of this but that doesn't make it so that there was any 'rewriting' done by this judge. He upheld the law as in, sides were not allowed to give proof of infringement based on their own 'specialists'. Because that can turn the court to a circus as is always the case when people end up comparing rectangular shaped objects. This set the tone for the conclusion in a massive patent troll case. This may happen more and more from now on and it will bring needed change.


Except that those jobs aren't separate. They overlap, by design. Congress has some enforcement powers. The executive branch has some lawmaking (i.e. regulatory) powers. The judicial branch has oversight over both. Holding a bad law as uneforceable is one way that the courts can provide feedback to congress.


In the US, judges rewrite the law with every ruling. Since the precedent established by a case is used in future decisions, the "real" law (the one which your actions will be compared against in court) is the base law passed in congress plus all of the precedent that has been piled on top of it.


The argument is more that unchecked power is a dangerous thing because it's a double edged sword, and that we shouldn't get happy that the unchecked power was exercised in our favor this time.


What's unchecked about this? Have appellate courts suddenly disappeared?


I dunno, it's not really my argument.


The argument is that it's Congress's job to define patent law, not the judiciary's.


In our tripartite system it is part of the judiciary's job to keep the other two parties in check, just as is true for all the branches. The idea that judges should just stfu and not "legislate from the bench" is a ridiculous invention by the modern neo-con movement.

The current state of the patent system is at odds with the intent of patents as vaguely defined in the Constitution and clearly fair game for extensive judicial review.




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