Riley M. Sinder, John K. Lopker, Ronald A. Heifetz
Ohio Northern University Law Review
23 OHIO N.U. L. REV. 71 (1996).
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.
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.
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.
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."
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.
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.
Ohio Northern University Law Review,
Riley M. Sinder, John K. Lopker, Ronald A. Heifetz.
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November 22, 1996
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