Riley M. Sinder, John K. Lopker, Ronald A. Heifetz
Ohio Northern University
Law Review
23 OHIO N.U. L. REV.
71 (1996).
THESIS
If, instead of mandating solutions in the areas of civil liberties, the
Court would induce the factions to solve their own problems, the Court
could reduce challenges to its legitimacy while diminishing the obstacles
to the nation's self-government.
INDUCE PROBLEM-SOLVING
In patent law, the Court recognizes a constitutional duty to ensure that
patents "promote progress." "Progress" occurs when
the problem-solvers enable the society to solve a significant technical
problem that was not solved previously. But, in patent law, even when assigning
monopoly rights, the Court allows the markets to determine whether the
patent is utilized.
MANDATE A "SOLUTION"
In contrast, for controversies over civil liberties, the Court often dictates
the "solutions" that the society must apply to the problems underlying
the case at bar. For example, in Roe v. Wade, the Court stated the trimester
compromise as a monopolizing view that all states must utilize, with no
competition permitted from alternate compromises.
CHALLENGE TO LEGITIMACY
Similarly, perhaps the court-ordered remedies in Brown II made the courts
into the obvious opponents that could unify the resistant parents and school
boards, while taking public attention off the disturbing findings of Brown
I.
SELF-GOVERNMENT
The Court can evaluate and correct problem-solving without dictating the
solution that the nation must accept. For example, in patent law, the Court
has imposed the criterion of "non-obviousness" to ensure that,
as a solution for the problem of encouraging innovation, the patent right
does not diminish the competitive resources of ordinary mechanics.
ASSESSING PROBLEM-SOLVING
Accordingly, the Court might correct defects in the problem-solving of
factions in the areas of civil liberties without dictating the monopolizing
view of a substantive outcome.
ALTERNATIVE FOR SCHOOL PRAYER
For example, instead of ordering the substantive outcome on school prayer,
the Court might encourage compromise by lifting the ban and establishing
the parameters for negotiation of equal "public observances."
ABORTION RIGHTS
Similarly, instead of ordering the substantive outcome for abortion rights,
if the state finds that a fetus is a "life," the Court might
promote compromise by requiring an equal burden between men and women for
saving lives.
RECOMMENDATIONS
If the Constitution provides "rights" as a means for solving
the problems of society in an open market with division of labor, then
the Court should attend to the effects of its actions when removing from
public scrutiny the problems that the society, not the Court, must solve.
Copyright ©
1996
Ohio Northern University Law Review,
Riley M. Sinder, John K. Lopker, Ronald A. Heifetz.
All rights reserved.
RESTRICTIONS ON USE
No part of this material may be copied or distributed, published, uploaded,
posted, or transmitted in any way, without the owners' prior written consent.
November 22, 1996
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