Regret: The Glory of State Law
Techdirt notes in CAFC Judge Regrets Decisions That Resulted In Software Patents that one of the federal judges on the Court of Appeals for the Federal Circuit admits that he was “troubled by the unintended consequences” of the earlier decisions that resulted in the proliferation of software and business model patents. Well at least he regrets it!
Now libertarian proponents of state legal systems are for some reason optimistic about the ability of state legislature and courts to promulgate just laws. Objectivist attorney Murray Franck , for example, wrote:
Just as the common law evolved to recognize “trespass by barbecue smoke,” it would have evolved to recognize property in the airwaves and in intellectual creations. But even if it could be established somehow that the common law would never have recognized intellectual property rights, this would not be an argument against such rights. The common law often requires legislation to correct it (for example, in recognizing the rights of women). Indeed it is a myth that the common law evolves to reflect, and that legislation always is in conflict with, the requirements of human nature. The same minds that employ induction and deduction to decide a particular case, making common law, can employ those methods to legislate universal laws.
Hayek also believed that case-law might need occasional “correction” by the legislature (see my Legislation and the Discovery of Law in a Free Society, p. 171). Both Franck and Hayek here express confidence that it is possible for the state–via its courts and legislatures–to issue “just” law. Well, I don’t know about that. Here we have a “bad” judicial interpretation of a “bad” legislated statute. Oh, well, I guess they can at least “regret” it.
Update: In the passage above, Franck cites in support Carl Menger’s Investigations into the Methods of the Social Sciences, 1883, pp. 223-224. Franck is correct that Menger’s reasoning here is similar to Franck’s, but Menger, like Franck, is wrong. Menger was brilliant on economics, but not so good here. In the passages latched onto by Franck, Menger goes on about the wonders of planned law–legislation, in “advanced” societies. What a central planning, rationalist mindset. All these Europeans seem to be legal positivists and utopian rationalistic central planner types. I guess they were in thrall to the then-burgeoning “rational” and legislated civil codes of Europe, which were enacted as statutes and which enshrined legislation as the prime source of law (legislative positivism): e.g. the Louisiana and French and other civil codes that started to be promulgated in the early 1800s. (See, on this, Herman, Shael, The Louisiana Civil Code: A European Legacy for the United States (1993), pp. 17–18.