Bilski will be an interpretation of that which already exists.
Wow. I find that rather astonishing. Let me know how that goes, casting
Bilski as just one possible interpretation of the law, that examiners, the BPAI, and the Federal Circuit are free to disregard.
The only way I can make any sense at all of what you're writing is if I ignore all I know of the law and treat "law" as synonymous with "statute" (which it is not).
To address that erroneous belief, let me quote Webster of 1913.
Law \Law\ (l[add]), n. [OE. lawe, laghe, AS. lagu, from the root
of E. lie: akin to OS. lag, Icel. l["o]g, Sw. lag, Dan. lov;
cf. L. lex, E. legal. A law is that which is laid, set, or
fixed; like statute, fr. L. statuere to make to stand. See
Lie to be prostrate.]
1. In general, a rule of being or of conduct, established by
an authority able to enforce its will; a controlling
regulation; the mode or order according to which an agent
or a power acts.
[1913 Webster]
Note: A law may be universal or particular, written or
unwritten, published or secret. From the nature of the
highest laws a degree of permanency or stability is
always implied; but the power which makes a law, or a
superior power, may annul or change it.
[1913 Webster]
....
4. In human government:
(a) An organic rule, as a constitution or charter,
establishing and defining the conditions of the
existence of a state or other organized community.
(b) Any edict, decree, order, ordinance, statute,
resolution, judicial, decision, usage, etc., or
recognized, and enforced, by the controlling
authority.
[1913 Webster]
Hmmm.... I see more in there than statutes.
Here's what "common law" means:
Common law, a system of jurisprudence developing under the
guidance of the courts so as to apply a consistent and
reasonable rule to each litigated case. It may be
superseded by statute, but unless superseded it controls.
--Wharton.
Note: It is by others defined as the unwritten law
(especially of England), the law that receives its
binding force from immemorial usage and universal
reception, as ascertained and expressed in the
judgments of the courts. This term is often used in
contradistinction from statute law. Many use it to
designate a law common to the whole country. It is also
used to designate the whole body of English (or other)
law, as distinguished from its subdivisions, local,
civil, admiralty, equity, etc. See Law.
Also take a look at "common law trademarks". I don't keep up with trademark law, so it's possible that those don't exist any more, but it certainly wasn't Eerie that did away with those.
In general, I think you'd be hard-pressed to find a single person who's completed one year of law school that would agree that courts do not make law and that there is no federal common law after Eerie.
This will be my last word on that topic for a while.
Regards.
Author
Topic: Antecedent fun (Read 2152 times)
