Thanks to Joe, Josh, and others for pointing out Justice Kagan’s quotation in yesterday’s decision in Kimble v. Marvel:
What we can decide, we can undecide. But stare decisis teaches that we should exercise that authority sparingly. Cf. S. Lee and S. Ditko, Amazing Fantasy No. 15: “Spider-Man,” p. 13 (1962) (“[I]n this world, with great power there must also come—great responsibility”). Finding many reasons for staying the stare decisis course and no “special justification” for departing from it, we decline Kimble’s invitation to overrule Brulotte.
I happen to disagree with the majority’s decision; Brulotte v. Thys was wrongly decided*, and the Court wasted a rare opportunity to correct a mistake. So on the one hand the citation and other references to Spider-Man were fun, but on the other hand it felt a little too cute by half for a decision that will ultimately result in Marvel (now part of the second largest media company in the world) avoiding royalty payments to an individual inventor whose idea Marvel (apparently) pretty blatantly ripped off. The tone of the opinion is incongruous with its consequences.
It may seem a little overly dramatic in a case that is ultimately about money, but I am reminded of Robert Cover’s Violence and the Word:
Legal interpretation takes place in a field of pain and death. This is true in several senses. Legal interpretive acts signal and occasion the imposition of violence upon others: A judge articulates her understanding of a text, and as a result, somebody loses his freedom, his property, his children, even his life. Interpretations in law also constitute justifications for violence which has already occurred or which is about to occur. When interpreters have finished their work, they frequently leave behind victims whose lives have been torn apart by these organized, social practices of violence. Neither legal interpretation nor the violence it occasions may be properly understood apart from one another.
This is not to say that all judicial writing should be humorless. I have enjoyed reading any number of funny, often acerbic opinions, but those opinions were usually written in response to parties that were themselves behaving badly or foolishly, and so deserved to be treated lightly or even mockingly. In this case, however, the Court has sided with a multi-billion dollar corporation over an individual inventor and did so on fairly technical grounds. The majority interpreted the law of stare decisis, and as a result Stephen Kimble lost his property (i.e. the contractual right to royalties from sales of the patented toy). This does not seem like an appropriate occasion for such levity.
Stepping back off my soap box, I promise the next post will return to discussing the legal implications of comic book hijinks.
* A full discussion of why this is the case is beyond the scope of this blog, but if you’re interested, see the dissent in Kimble and Judge Posner’s opinion in Scheiber v. Dolby Labs.