PROMOTING PROGRESS: THE SUPREME COURT'S DUTY OF CARE

Ohio Northern University Law Review
23 OHIO N.U. L. REV. 71 (1996).

Table of Contents

     But in areas of civil liberties, the Court generally mandates solutions⁶ without regard for the impact on the work of problem-solvers in the society.⁷   The Court's mandate of solutions takes two forms:   1) interference⁸ and 2) avoidance of interference.⁹   Thus, at one extreme the activist Court imposes its own solution, while thwarting the political forces that eventually must engage with the problem before the society reaches any practical solution.¹⁰   At the other extreme, by routinely overruling district court interventions, the Court authorizes and amplifies the proposed solution of the stronger party in the polity.¹¹

     Whether the Court imposes a solution by interference or by avoidance of interference, the Court's effect on progress derives from conditions in the society, not from the intent or substance of the Court's decision.¹²   Thus, when the Court created the woman's constitutional right to an abortion, the Court's decision did not forbid the state legislatures from working out the compromises that would implement abortion rights.¹³   Rather, religious and social forces in the society used the Court's decision to polarize adamant positions and to obstruct the work of compromise.¹⁴

     Since the Court's decisions affect progress,¹⁵ the Court should attend to the likely effects.   Though the United States Constitution mentions "progress" only in regard to grants of patents and copyrights, a Court such as the Warren Court wishing to promote progress in civil rights or other areas should attend to the Court's foreseeable effects on problem-solving within the society.¹⁶   Accordingly, if the Court wishes to promote progress in the area of abortion rights, the Court should consider how factions will use the decision to prevent compromises that surrender ground to the opposition.¹⁷   Ultimately, since self-government requires that factions compromise many adamant positions, the conditions in the society may require the Court to attend to problem-solving if the Court wishes to promote any positive value, such as "a return to true American values" in the society.¹⁸

     This Article asserts that the Court's idea of progress in the area of patent law will apply to other areas, including the law of civil liberties, to improve the Court's ability to promote rather than hinder progress in the society.¹⁹   Part I summarizes the history and features of the Court's ideas of progress in the area of patent law.   According to Court interpretation, the Constitution requires that the Court form patent decisions with an intent to promote progress in the problem- solving capabilities of the society's technology.²⁰   In contrast, for non-patent areas of law, the Court generally implements substantive policies while ignoring the Court's effects on problem-solving.²¹   However, as Part II shows, the Court has a wide inventory of constitutional tools that would permit the Court to plan, monitor, and restrict its own effects to enhance rather than replace democratic problem-solving.

     In developing a prescriptive framework for the Court to attend to its effect on society, Part III states a model for the mechanisms by which a nation progresses in its ability to solve problems.²²   Evidently, factions in a nation seize on the innocent actions of authorities to gain personal advantage even if the advantage comes at the expense of reducing the nation's ability to solve its problems.²³

     As a consequence, a responsible authority in the society must consider that self-interested factions may use the authority's actions to repress the problem-solving efforts of weaker factions.²⁴   For example, the Supreme Court insistently has monitored the uses self-interested inventors would make of broad monopoly grants for software innovations.²⁵   The Court foresaw that, taking into consideration the nature of software and programmers, the first programmers would use broad software patents to prevent subsequent programmers from making independent innovations based on the abstract ideas of the first programmers.²⁶   Hence, in the interest of promoting progress, the Court permitted software patents, but only in association with hardware applications.²⁷

     Accordingly, Part IV recommends the decisions for three recent cases if the Court is to promote progress in the area of civil liberties.²⁸   The Court must attend to two uses that self- interested parties make of Court actions: 1) undermining the Court's power²⁹ and 2) suppressing problem- solving.³⁰

     Moreover, since problem-solving for the nation must consist of facing and resolving threatening realities,³¹ the Court must monitor the extent to which the society uses the Court's decisions to avoid facing problems.³²   For example, when the Taney Court declared black slaves to be property and not "citizens" under the Constitution, the nation stopped facing and addressing the threatening reality of the divisions between the North and the South.³³   The Taney Court's decision made problem-solving more difficult, not because the decision ordered a halt to compromise, but because of the partisan use that factions made of the decision.³⁴   To sustain the compromise between North and South that self-government required, the Taney Court would have had to attend to the likely ends to which zealots would convert the Court's decision.   For example, the Court should have foreseen that zealots on both sides would vindicate rebellion by declaring the courts to be ineffective for obtaining justice.³⁵

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 ¹ See U.S. CONST. art. I, § 8, cl. 8 ("The Congress shall have Power . . . To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries. . . ."); 17 U.S.C. § 102 (1994) (implementing a copyright protection for "original works of authorship," including "literary works"); 35 U.S.C. § 101 (1994) (providing for the possibility of obtaining patent protection for certain inventions, including "machines").   The Supreme Court has long maintained that the Founding Fathers intended the courts to develop the criteria for copyright and patent awards that promote progress.   See Feist Publications, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340, 346-47 (1991) (reviewing the Court's actions prior to 1900 in developing the "originality" requirement for a copyright); Graham v. John Deere Co., 383 U.S. 1, 9-10 (1966) (summarizing Jefferson's actions as a member of the first patent board in depending on the judiciary to develop the rules for patentability).   For example, the Court devised the criterion of "more ingenuity and skill than that possessed by an ordinary mechanic" to keep patent applicants from obtaining monopolies over the routine problem-solving of professionals. Id. at 11; see also Hotchkiss v. Greenwood, 52 U.S. (11 How.) 248, 267 (1851) (asserting a new patentability requirement of "more ingenuity . . . than . . . an ordinary mechanic," and denying the validity of a patent for a mere substitution of porcelain for wood in making a doorknob).

     Within patent law, the Court refrains from dictating the technical direction that invention should take to bring about progress.   See, e.g., Diamond v. Chakrabarty, 447 U.S. 303, 316-17 (1980) (refusing to consider the dangers that genetic engineering might cause, and reversing the rejection of the first patent for a manufactured life-form, a bacterium that digested crude oil and thereby could reduce the environmental damage from oil spills).   In Chakrabarty, the Court looked to the likelihood that the Court's action would accelerate or deter problem-solving.   Id. at 316 & n.10 (concluding that promoting progress required extending patent protection to unanticipated inventions where extending the protection would accelerate rather than deter the discovery of new technological capabilities).

     In contrast, the Court dictates solutions in areas of civil rights without considering the effects on the efforts of the workers who confront the problems generating the controversy.   See Brown v. Board of Educ., 347 U.S. 483, 495 (1954) (Brown I) (declaring that "separate but equal" is unconstitutional for public schools; but not addressing the likely impacts on the factions that had engaged with the problems of racial discrimination in the society); Brown v. Board of Educ., 349 U.S. 294, 301 (1955) (Brown II) (remanding the cases for remedy; but not stating criteria for considering the effects of remedy on the problem-solvers in the society); ALEXANDER M. BICKEL, THE SUPREME COURT AND THE IDEA OF PROGRESS 134, 141 (Yale Univ. Press 1978) (1970) (stating that, under Brown II, the federal courts dictated solutions without looking to the effects on private problem-solvers, and consequently forced centralization of educational facilities, obstructed the attempts of black parents to take charge of their children's education, and impeded the efforts of educators to achieve comparable educational opportunities between high and low income groups).    (back to text)

 ² See Graham, 383 U.S. at 5-6 (rejecting government grant of monopoly for obvious extensions of known technologies).   When the Court declares that one substantive right should prevail over another substantive right in the case at bar, the Court weakens the competitiveness of better bargains that contradict the Court's assigned balance of rights.   See id. at 6 (noting that assignment of a monopoly right for known technology deters progress by diminishing the incentives and possibilities for inventors to get better results by surpassing the known technology).

     Within the area of patent law, the Court does not foster progress by discerning stable substantive rights.   Rather, the Court fosters progress by adjusting the temporary assignment of rights to favor likely problem-solvers in the society.   See id. at 8-9 (citing Thomas Jefferson's rejection of the theory that a patent right should derive from the natural-right to compensation for the inventor's toil); id. at 9-11 (asserting that a patent should be temporary and should be granted only when likely to "bring forth new knowledge").   To promote progress, the Court must consider, not the justice of the claim, but rather the use that the factions in the society will make of the Court's action.   See id. at 11 (stating that the Court's task is to identify the tendencies of inventors that likely will respond to the Court's action by devising and disclosing critical inventions).   Moreover, in promoting progress, the Court must consider the likely reactions of self-interested factions that will use the Court's actions to deter progress.   See id. at 10-11 (asserting that the Court must avoid decisions that permit some inventors to obtain a monopoly over obvious extensions of technology in the public domain, which should be freely available to support inventors going beyond the current art).    (back to text)

 ³ Generally, the word "problem" has two meanings: 1) mathematical puzzle or 2) physical or social difficulty.   AMERICAN HERITAGE DICTIONARY 1443 (3d ed. 1992).   Throughout this Article, the word "problem" shall be used only to denote "physical or social difficulty."   In construing "progress," the Court consistently finds that "progress" derives only from solutions for "physical or social difficulties," not from solutions to mere "mathematical puzzles."   See Parker v. Flook, 437 U.S. 584, 595 n.18 (1978) (reasserting that an "improved method of calculation" is unpatentable, whatever the end use); JOEL MOKYR, THE LEVER OF RICHES: TECHNOLOGICAL CREATIVITY AND ECONOMIC PROGRESS 11 (Oxford U. Press 1992) (1990) (asserting that improvement in the human condition requires innovative solutions to two sets of problems; first, the technical problems of controlling physical reality and second, the social problems of coordinating the interactions of individuals and factions in the society); HENRY M. HART, JR. & ALBERT M. SACKS, THE LEGAL PROCESS: BASIC PROBLEMS IN THE MAKING AND APPLICATION OF LAW 148 (William N. Eskridge, Jr. & Philip P. Frickey eds., 1994) (arguing that the purpose of law is to promote the solution of problems in society).

     "Progress" consists of the society learning to solve problems that previously could not be solved.   See Brenner v. Manson, 383 U.S. 519, 534- 35 (1966) (stating that no progress had occurred where the inventor had constructed a new chemical compound that pointed to a new research area but where the new compound did not bring a new, specific, and useful benefit to the society), cited with approval in In re Ziegler, 992 F.2d 1197, 1203 (Fed. Cir. 1993); Hotchkiss, 52 U.S. (11 How.) at 267 (finding that there was insufficient "improvement" for a patent in merely casting a doorknob in porcelain rather than wood because skilled mechanics already possessed the knowledge for solving the problems of casting in porcelain what had already been carved in wood), cited with approval in Graham, 383 U.S. at 11; The Incandescent Lamp Patent, 159 U.S. 465, 475-76 (1895) (asserting that promoting innovation occurs only if the patent application provides enough information so that the future user need not "find it out 'by experiment'") (quoting Tyler v. Boston, 74 U.S. 327 (7 Wall.) 330 (1868)); 35 U.S.C. § 112 (1994) (requiring a written description sufficient to "enable any person skilled in the art . . . to make and use" the invention).

     Consequently, to ensure that a patent likely will promote progress, the inventor must show: 1) statutory subject matter, 2) utility, 3) novelty, and 4) nonobviousness.   See In re Bergy, 596 F.2d 952, 960, 963 (C.C.P.A. 1979) (describing what the inventor must show to convince the Patent and Trademark Office (PTO) and the court that a particular patent should issue); id. at 987 (concluding that "protecting these inventions, in the form claimed, by patents will promote progress in very useful arts").   In considering "statutory subject matter," even early Courts have attended, not to substantive value, but rather to the likely responses of inventors to the Court's action in allowing a patent to be issued.   See O'Reilly v. Morse, 56 U.S. (15 How.) 112-13 (1853) (concluding that progress would be impeded if the Court permitted a patent monopoly for electromagnetism employed generally to create letters because later inventors likely would discover advanced modes of display that did not benefit from the inventor's discovery).   Hence, the Court has refused to patent abstract principles and mere formulas, even in cases of new and significant breakthrough.   The Court has reasoned that, given the structure of society and the nature of the problem-solving process, if the Court would allow a patent for a mere answer to an abstract puzzle, the Court would deter problem- solving.   Compare Gottschalk v. Benson, 409 U.S. 63, 68, 71-72 (1972) (affirming the denial of a patent for a mere computer program to convert numbers from one notation to another where granting the patent likely would restrict uses that did not derive from the inventor's discovery) with In re Alappat, 33 F.3d 1526, 1545 (Fed. Cir. 1994) (asserting that a program in a computer "creates a new machine" which may be patentable if the "new machine" satisfies the patentability criteria).

     The Court interprets "utility," not by consulting the interests of only the parties before the court, but by requiring a demonstrated benefit for those persons facing the physical and social problems in the society.   See Brenner, 383 U.S. at 530 (declaring that a patent should not issue for a process to create a new chemical compound where the inventor claimed a research advance but did not demonstrate that the new compound brought a specific benefit to the society); Ziegler, 992 F.2d at 1203 (affirming the denial of a patent on a new polymer plastic where the specification failed to state a "practical utility").   Moreover, under the requirements of "novelty" and "nonobviousness," the Court distinguishes between solving a new problem and merely adapting existing solutions.   Progress requires the solution of an unsolved problem.   See Graham, 383 U.S. at 10-11 (requiring innovation for a patent, more than the mere adjustments and improvements of a skilled mechanic).    (back to text)

 ⁴ Brenner, 383 U.S. at 534 ("Such a patent may confer power to block off whole areas of scientific development, without compensating benefit to the public."); Ziegler, 992 F.2d at 1203 (affirming a new plastic as unpatentable where the specification failed to state a "practical utility," and stating that the "utility of a chemical compound may not reside in its 'potential role as an object of use-testing'" (quoting Brenner, 383 U.S. at 535)).    (back to text)

 ⁵ Brenner, 383 U.S. at 534.     (back to text)

 ⁶ See Brown II, 349 U.S. at 299 (stating that justice required the "solution" of "problems" at the local schools and remanding for the respective district courts to order solutions to the problems arising from separate schools for blacks and whites); Swann v. Charlotte-Mecklenburg Bd. of Educ., 402 U.S. 1, 14, 22 (1971) (noting that the "problems encountered by the district courts" required that the Supreme Court provide solutions for "four problem areas;" racial balances, one-race schools, zone alteration, and transportation).

     Where a problem is complex, if the Court dictates a solution, the Court likely will oversimplify the problem-statement and fashion a remedy to a mere caricature of the real problem.   See Swann v. Charlotte-Mecklenburg Bd. of Educ., 431 F.2d 138, 141, 147 (4th Cir. 1970) (recognizing that the causes of school segregation included residential segregation that resulted from governmental actions, such as restrictive covenants, zoning restrictions, and placements of public housing; hence, remanding the case and suggesting that the district court "explore every method of desegregation"); Swann, 402 U.S. at 22-23 (restricting the remedy to operations of the local school board and refusing to consider harms deriving from whites, in a "mobile society," moving to avoid school districts with black students); Laurence H. Tribe, The Curvature of Constitutional Space:   What Lawyers Can Learn from Modern Physics, 103 HARV. L. REV. 1, 28 (1989) (stating that the Supreme Court over-simplified the segregation problem and established expectations that hindered later problem- solvers).    (back to text)

 ⁷ See, e.g., Roe v. Wade, 410 U.S. 113, 130-47 (1973) (inquiring into ancient attitudes, historical trends, medical practice, common-law and English statutory-law attitudes, comparative law among the states, and positions of legal and medical professionals; but neglecting to consider the effect of a new substantive right on the social and political factions attempting to resolve the underlying problems of gender relations); MARY A. GLENDON, ABORTION AND DIVORCE IN WESTERN LAW 47-49 (1987) (arguing that the Roe Court inhibited the spontaneous "constructive activity by partisans of both sides" and suggesting that, if the Court had returned the abortion issue to the states in 1978, the states likely would resume the work that had been postponed since 1973: developing compromises on abortion rights to continue the trend that had repealed the criminal penalties for early abortions in the states of New York, Hawaii, Alaska, and Washington); LAURENCE H. TRIBE, ABORTION: THE CLASH OF ABSOLUTES 142 (1990) (indicating that the Roe Court provided the pro-choice faction with the intractable legitimacy of a constitutional right, requiring a constitutional reversal to dislodge, while providing the pro-life faction with the lure of recruiting to stop government-sponsored mass-murder).   Typically, in civil rights cases, only the dissent may note the Court's foreseeable effects on the problem-solvers in the nation.   See Roe, 410 U.S. at 221-22 (White, J., dissenting) (noting that the majority opinion mandates a solution and allows factions to avoid facing the realities of fetal destruction weighed against the harms to the mother).    (back to text)

 ⁸ See, e.g., Lochner v. New York, 198 U.S. 45, 64 (1905) (striking down a state law to limit work-hours in bakeries).   The dissent noted the likelihood that the Court's imposition of a substantive "right to contract" would halt problem-solving between factions of labor and management in the New York legislature.   Id. at 75 (Holmes, J., dissenting).   However, in the majority's view, the dissent would have permitted the legislature to interfere in the problem-solving processes on the shop floor, the direct negotiation between the employer and the employee.   Id. at 52-53 (complaining that the New York statute "interferes with the right of contract between the employer and employee").   Both majority and dissent would have mandated a substantive solution, the majority by interfering and the dissent by avoiding the interference.   See ALEXANDER M. BICKEL, THE LEAST DANGEROUS BRANCH: THE SUPREME COURT AT THE BAR OF POLITICS (1962) (arguing that when the Court routinely validates district court denials of claims in an attempt to avoid interference, the Court still interferes because the defendant is made stronger and the plaintiff is made weaker when the Court sets a precedent of not interfering).    (back to text)

 ⁹ See Erwin Chemerinsky, The Vanishing Constitution, 103 HARV. L. REV. 43, 56-57 (1989) (arguing that, when the Supreme Court prevents interference by the federal courts, the Court dictates two substantive solutions: 1) the governmental program that the plaintiff challenges and 2) majority rule).   First, in deferring to the government, the Court dictates a substantive preference for the government's solution at the expense of the constitutional value that the plaintiff asserts.   See, e.g., United States v. Carolene Prods. Co., 304 U.S. 144 (1938) (strengthening the state legislature's regulatory power while depreciating the economic value of supplying diluted milk to a market wishing to buy diluted milk).   Second, when the Court routinely avoids interference, the Court dictates majority rule as the solution for governance without considering foreseeable detrimental effects. See, e.g., Chemerinsky, supra, at 75 (arguing that the Framers of the Constitution distrusted majority rule at least to the extent that they set the Bill of Rights beyond the reach of a simple majority).   Majority rule in the House of Representatives is only one of several competing values within the balance of powers under the Constitution.   Chemerinsky, supra, at 75.

     Accordingly, the antimajoritarian powers must step forward when majority rule neglects threatening problems.   In intervening, rather than dictate solutions, the antimajoritarian powers must remind the people what the problem is.   DANIEL A. FARBER & PHILIP P. FRICKEY, LAW AND PUBLIC CHOICE 36 (1991) (suggesting that the chronic American budget deficits illustrate the occasional inability of pure majoritarian decisionmaking to analyze and negotiate the business that will solve tough problems).   For example, in the current American budget debate, farmers may be unwilling to give up the federal subsidy of price supports to balance the budget unless the other factions also give up equal subsidies.   A standoff is likely where the factions cannot transact the business that everyone readily admits must be done to avoid serious consequences. See id.   (explaining that "without a commitment from all the other interest groups, it would be crazy for the farmers to give up their price supports").   Some antimajoritarian power must remind the people of the real threat.   See id. at 11 (asserting that one of the "most pressing problems now facing our legal system is how to strengthen," as might a physician, the immune system of the patient so that the patient-nation can recover "rather than succumb to its pathologies").    (back to text)

 ¹⁰ See Reynolds v. Sims, 377 U.S. 533, 567-68 (1964) (fixing the constitutional standard for state voter-districting to be equal "weight of the citizen's vote"); id. at 579-80 (eliminating specifically "group interests" from the options of "permissible factors" for adjusting the effect of an individual's vote).   Rather than provide problem- solvers with tools or capabilities, the Court's solution in Sims and progeny limited the flexibility of problem-solvers and deterred the discovery of practical approaches.   See LANI GUINIER, THE TYRANNY OF THE MAJORITY: FUNDAMENTAL FAIRNESS IN REPRESENTATIVE DEMOCRACY 124-25 (1993) (arguing that, since the Supreme Court defined the voting right as an individual right rather than a group right, the winner- take-all elections hindered those who worked to get a fair representation of minority views in state legislatures).

     The Supreme Court's mandate of a district-based solution prevented, perhaps unintentionally, the application in the broad society of the corporation-law solution for the similar problem of protecting the interests of minority shareholders.   See id. at 123 (asserting that, if the Court had refrained from imposing district voting, cumulative voting would result in fair representation of minority groups in state legislatures); id. at 124-25 (suggesting that when the Supreme Court framed the voting right as an individual right rather than a group right, the Court distracted the problem-solvers in the nation and produced a failed democracy); MODEL BUSINESS CORP. ACT § 7.28(b) - .28(d) (1991) (authorizing state enforcement of cumulative voting rights for shareholders in a small corporation, if the firm's articles of incorporation expressly provide for cumulative voting rights).   Consequently, in looking to gadgets of principle, such as "one-person, one-vote", the Court neglects the Constitution as a means for the people to solve their own problems without the imposition of government programs that do not face the problems in the society.   See Frank H. Easterbrook, The State of Madison's Vision of the State: A Public Choice Perspective, 107 HARV. L. REV. 1328, 1337 (1994) (characterizing the Constitution as a means of decentralizing decisions within the market while protecting against the tendency of majority factions to dictate programs that do not consider minority interests).    (back to text)

 ¹¹ See, e.g., Pasadena City Bd. of Educ. v. Spangler, 427 U.S. 424, 436 (1976) (justifying segregation as deriving from the "quite normal pattern of human migration"); Tribe, supra note 6, at 28-29 (asserting that, though the Court justifiably may have recoiled from correcting residential segregation because no enforceable remedy emerged, still, by not denouncing white flight, the Court invited social forces to prevent well-intended parents from building desegregated schools).   Generally, the Supreme Court refrains from interfering if available judicial remedies likely will not terminate the injury in plaintiff's complaint.   Compare Willig v. Chicago Auditorium Ass'n, 277 U.S. 274, 289 (1928) (declaring in dicta that the Constitution does not grant the Court the power to issue declaratory judgments) with Aetna Life Ins. Co. v. Haworth, 300 U.S. 227, 241, 244 (1937) (affirming a declaratory judgment where Congress expressly authorized declaratory judgments).

     Nevertheless, the Court's mere pronouncement of injustice may be more effective than a mandated solution for promoting progress, when the problem is complex and the solution is unknown.   Compare, e.g., Brown v. Board of Educ., 347 U.S. 483, 495-96 (1954) (Brown I) (declaring rights but postponing remedy) with Brown II, 349 U.S. at 301 (remanding to the lower courts for determining remedy).   For example, the Court may have induced more progress by limiting the school desegregation cases to the mere "declaration of rights" in Brown I and by keeping the federal courts on the sidelines.   See Tribe, supra note 6, at 29 (noting that the "mere declaration of rights" gave civil rights workers a mantle of authority and induced voters and legislators to heed the calls for major civil rights legislation); JEROME A. BARRON ET AL, CONSTITUTIONAL LAW: PRINCIPLES AND POLICY 531 (3d ed. 1987) (noting the cheering in the South following Brown II, and suggesting that the factions opposed to integration saw in Brown II clear opportunities for subverting the impending lower court orders that were not apparent in the mere declaration of rights in Brown I).    (back to text)

 ¹² See Jane S. Schacter, Metademocracy: The Changing Structure of Legitimacy in Statutory Interpretation, 108 HARV. L. REV. 593, 599 (1995) (asserting that, even when the Court strictly follows the wording of a statute, whether the Court induces new changes in the society depends on the dynamics between the factional interests in the society, not on the Court's conclusions or reasoning).   For example, no matter what interpretation the Court might give to a statute, the Court likely reduces the decisionmaking authority of the governmental functions over which the electorate has democratic control.   See, e.g., Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 865-66 (1984) (recognizing that an executive agency is "accountable to the people" indirectly through the election of the President and that, if the Court overrules a statutory interpretation of an executive agency, the Court reduces democratic control over decisions).   However, without Court intervention, certain problems in the society intensify without rising to the serious attention of problem-solvers.   See, e.g., United States v. Carolene Prods. Co., 304 U.S. 144, 152 n.4 (1938) (suggesting that legislation may prevent problem-solving if the legislation restricts the political process or impairs the political power of "discrete and insular minorities").

     Furthermore, if the Court does not analyze the problems that are within its unique realm of expertise, the Court allows problems to escalate unnecessarily for lack of clarity.   See, e.g., RICHARD A. POSNER, ECONOMIC ANALYSIS OF LAW 495-96 (3d ed. 1986) (asserting that judges generally are more successful than legislators at clarifying the costs and benefits to parties and to those similarly situated, hence judges are more likely to create legal rules that promote overall value in the society).   Moreover, if the Court does not attend to the dysfunctional behavior of the problem-solvers associated with the case at bar, the Court likely will reinforce the problem.   See, e.g., Mistretta v. United States, 488 U.S. 361, 421-22 (1989) (Scalia, J., dissenting) (contending that the Court must consider the indications that Congress set up the sentencing commission to avoid the legislative work that the Constitution requires of Congress--weighing and balancing the harms to different segments of society); Johnson v. Transportation Agency, 480 U.S. 616, 677 (1987) (Scalia, J., dissenting) (asserting that, if the Court does not consider the powerlessness of a white male with no ability to organize the political process, the Court will create an injustice).    (back to text)

 ¹³ See, e.g., M.A. Farber, Abortions at Any Time Sought in State, N.Y. TIMES, Jan. 24, 1973, at A13 (describing state legislative bargaining to protect the abortion right even in the third trimester, but reporting that "Governor Rockefeller said he did not foresee a need for any major changes in New York's abortion law as a result of the United States Supreme Court's decision yesterday" in Roe v. Wade, 410 U.S. 113 (1973)).    (back to text)

 ¹⁴ See TRIBE, supra note 7, at 161 (stating that the Court's recognition of the abortion right gave anti- abortion forces a totem in many jurisdictions for organizing defeat of compromise candidates that did not declare open opposition to the abortion right of Roe v. Wade, 410 U.S. 113 (1973)).   The intensity of the passion against the "abortion right" permitted the political process to ignore other critical issues in the society.   TRIBE, supra note 7, at 161.    (back to text)

 ¹⁵ See U.S. CONST. art. I, § 8, cl. 8 ("The Congress shall have Power . . . To promote the Progress of Science and useful Arts. . . ."); Graham v. John Deere Co., 383 U.S. 1, 9-10 (1966) (describing the Supreme Court's acceptance of Thomas Jefferson's request that the Court develop "a system of general rules" for patentability that would promote progress); BICKEL, supra note 1, at 13 (stating that the Warren Court intended to induce progress toward an "Egalitarian Society").   Though factions may have contrasting definitions of progress in a diverse society, the Court's decisions affect "progress" under any reasonable definition.   See, e.g., TRIBE, supra note 7, at 142-43 (contrasting the Court's effect on both pro-life and pro-choice strategies and comparing speculatively the trajectory of the abortion debate if the Court had not proclaimed an abortion right).    (back to text)

 ¹⁶ See Schacter, supra note 12, at 660 (contending that the Court should forsake "the fantasy of interpretive neutrality" since the Court cannot in fact act neutrally and asserting that the Court should develop a legitimate means of managing the Court's effect on the normative values in society); Tribe, supra note 6, at 30 (arguing that the Court should consider its effect on the power of leaders to organize problem-solving); Chemerinsky, supra note 9, at 104 (asserting that, even when the Court attempts to remain value-neutral, the Court alters the values in the society; hence, the Court should openly weigh the value choices that the Court advances).    (back to text)

 ¹⁷ See Webster v. Reproductive Health Servs., 492 U.S. 490, 535 (1989) (Scalia, J., concurring in part and concurring in the judgment) (criticizing the majority for not attending to the distorted uses to which factions would put the Court's decision, particularly the Court's refusal to discuss the underlying problems surrounding abortion rights); Frances Olsen, Comment, Unraveling Compromise, 103 HARV. L. REV. 105, 135 (1989) (suggesting that, when the Court omitted from Webster a discussion of the underlying effects on the power of women, the Court hindered the ability of factions in the society to reach a fair working-compromise on abortion).    (back to text)

 ¹⁸ See infra note 139 (asserting that "a return to true American values" could be substituted for "progress" everywhere in the theory of this Article without altering the normative argument that the Court should attend to its effect on problem- solving).    (back to text)

 ¹⁹ See infra part IV.C (suggesting that both "progress" under patent law and "progress" under civil rights law require that the nation, not the courts, learn to resolve increasingly complex problem situations).    (back to text)

 ²⁰ See Graham, 383 U.S. at 5-6 (stating that the Constitution requires that the Court's patentability standards must derive from the likelihood of promoting progress in the society's technology).   But see Kenneth J. Burchfiel, Revising the "Original" Patent Clause: Pseudohistory in Constitutional Construction, 2 HARV. J.L. & TECH. 155, 165-68 (1989) (reviewing the early Court refusals to assert the Constitution against the patent statutes developed by Congress); id. at 168 (suggesting that only an "antimonopolistic fervor," rather than legitimate precedent or original intent, gave rise to the Deere Court's assertion that the Constitution required that patents promote progress); Continental Paper Bag Co. v. Eastern Paper Bag Co., 210 U.S. 405, 422-23 (1908) (refusing the infringer's argument that non-use of a patent should excuse infringement because the patentee's non-use did not meet the constitutional standard of promoting progress).    (back to text)

 ²¹ See BICKEL, supra note 1, at 13-15 (comparing the substantive goals of the Warren Court to the approaches of the Courts in the early Twentieth Century).   The Warren Court imposed a goal of political equality on the society.   BICKEL, supra note 1, at 13.   In contrast, the Courts of the early 1900s imposed a goal of competitive inequality on the society.   BICKEL, supra note 1, at 14-15.   However, both the Warren Court and the earlier Courts imposed the Court's solutions as a matter of right and not as a matter of temporary practicality to assist problem-solvers in resolving the matter.   See, e.g., Gray v. Sanders, 372 U.S. 368, 381 (1963) (declaring an unwavering constitutional right that each voter's vote should have equal consequence); Lochner v. New York, 198 U.S. 45, 53 (1905) (characterizing the Court's decision as mediating a contest between permanent rights, the rights of individuals versus rights of states).

     Though the Court repeatedly has failed to establish permanent rights, the Court has made positive contributions to progress.   Positive contributions have resulted from temporary mandates that the Court lifts as the problem-solvers of the society engage with the issues that underlie the controversy.   See BICKEL, supra note 1, at 175 (stating that an effective solution results only after the political process has dealt with the problem); BICKEL, supra note 1, at 181 (concluding that the Court can assist progress only by making temporary adjustments until the problem-solvers in the society can mobilize to deal with the issues in the controversy).    (back to text)

 ²² See Cass R. Sunstein, Well-Being and the State, 107 HARV. L. REV. 1303 (1994) (arguing that a nation's legislative focus can promote or deter the discovery of solutions "to current social problems").   In a democracy, the citizens must do the work of deriving solutions.   See id. (noting that, since public officials are accountable for results, the public officials must mobilize the citizens through public deliberation both to inform and to coordinate citizen action).   Government intervention is necessary to achieve problem-solving because natural market forces lack the incentives to focus attention on problems.   See id. at 1303-04 (noting that the natural demand in the market calls forth a supply of work avoidances in "sensational anecdotes, crude oversimplifications of issues, or scandals about public officials' private lives").

     But unless the intervening official has a prescriptive model for measuring progress, intervention likely detracts from problem-solving.   See id. at 1304 (asserting that, without established criteria for measuring governmental performance, intervention likely is ineffective as well as likely to provide the vehicle for special factional interests to profit at the public's expense).   Though satisfactory economic indicators exist for measuring governmental performance with respect to the economy, current indicators fail to measure progress in solving social and political problems.   See id. (concluding that, when serving as the only measure of progress, economic indicators such as gross domestic product inappropriately focus the attention of problem-solvers to obscure the causes of social and political problems).

     As a consequence of the unwarranted dominance of economic indicators to the exclusion of other measures for progress, analysts have overlooked significant areas of the Court's effects on problem-solving.   See, e.g., id. at 1304-05 & n.6 (noting the lack of empirical evidence that the "'actual malice' regime for libel law in fact alters press behavior as compared with a negligence regime").   A suitable model for assessing the Court's effects on progress must 1) identify the realities that the nation's problem-solvers overlook, 2) suggest likely interventions that will focus the public deliberation on the overlooked realities, 3) monitor the changes in problem-solving following the Court's intervention, and 4) suggest future corrective interventions based on trends in improvement or deterioration of the public's problem- solving.   See id. at 1324 (summarizing the elements of a "quality of life report" that would be necessary for focussing public attention and monitoring progress on the problems that the public must solve); id. at 1326 (suggesting that the ability of private persons to solve everyday problems derives from the tools and attitudes that the law creates).    (back to text)

 ²³ See Easterbrook, supra note 10, at 1346-47 (suggesting that judges must look beyond a statute to assess the quality of the legislators' problem- solving or the judges merely will reinforce the attempts of factions to gain at the expense of consumer value-for-cost and other community concerns).    (back to text)

 ²⁴ See Tribe, supra note 6, at 30 (asserting that the Court should look beyond whether or not the Court can remedy the plaintiff in the case at bar).   Even where the Court cannot offer the plaintiff an enforceable remedy, the Court should weigh the likelihood that inaction by the Court will be used by factions in the society for "legitimating" the defendant's action, compared with the likelihood that a mere declaration of unenforceable rights will assist problem-solvers in engaging the society with solving the problem underlying the case.   Tribe, supra note 6, at 30.    (back to text)

 ²⁵ E.g., Gottschalk v. Benson, 409 U.S. 63, 71-72 (1972) (affirming the rejection of a patent for a computer program for converting numbers where, because the inventor claimed the only means of using the conversion method, granting the patent would deter other inventors from improving the method); In re Trovato, 42 F.3d 1376, 1382-83 (Fed. Cir. 1994) (affirming the rejection of claims for a means to determine the optimum path between two locations because the claims did not disclose a machine but claimed "mathematical calculations" which are the "'basic tools of scientific and technological work'" (quoting Benson, 409 U.S. at 67)).    (back to text)

 ²⁶ See Parker v. Flook, 437 U.S. 584, 595 (1978) (denying the validity of a patent on a mere computer program, but stating that further congressional fact-finding regarding the nature of software programming might indicate that patenting certain types of computer programs would "promote the progress of science and the useful arts").   Recent cases have required claims with a computational element to recite a physical structure.   See In re Lowry, 32 F.3d 1579, 1583-84 (Fed. Cir. 1994) (reversing a denial of patentability for computer memory where "the data structures are specific electrical or magnetic structural elements in a memory").    (back to text)

 ²⁷ See Diamond v. Diehr, 450 U.S. 175, 192-93 (1981) (overruling the Patent Office's denial of a patent where the computer program was part of a hardware process to monitor temperature and continuously calculate the hardness of a molded object, alerting the operator when the desired hardness was achieved); In re Alappat, 33 F.3d 1526, 1543 (Fed. Cir. 1994) (reversing the denial of patentability for a computerized method of producing stable oscilloscope traces, and stating that the patent laws are intended to protect advances in "transforming or reducing an article to a different state or thing" (quoting Diehr, 450 U.S. at 192)).   To prevent factions from using the Court's actions to further self-interest at the expense of progress, the Court must attend to conditions and tendencies in the society.   See Diehr, 450 U.S. at 191 (recognizing the Court's duty to inquire whether, despite the legal merit of the claim, the inventor can use the Court's action to reduce the creative resources of other problem-solvers in the society).    (back to text)

 ²⁸ See BICKEL, supra note 1, at 181 (concluding that the society permits the Court to have beneficial effects only through "limited", "ambivalent," and "temporary" pronouncements).   Thus, even when the Court possesses "permanent truth," the Court harms problem-solving in the society by articulating permanent rights.   See BICKEL, supra note 1, at 173 (asserting that, when the Court enforces permanent rights, the Court obstructs alternative and equally-valid solutions to the problems underlying the controversy).   The only beneficial role that society allows the Court consists of temporary solutions that have effect only until the problem-solving processes of the society can engage to produce "progress."   BICKEL, supra note 1, at 181 (asserting that the society allows the Court only temporary power in any area, that only the society as a whole has the proper "idea of progress," and that the Court will not maintain its authority if enforcing the Court's idea of progress).    (back to text)

 ²⁹ See Michael Ariens, A Thrice-Told Tale, or Felix the Cat, 107 HARV. L. REV. 620, 625-27 (1994) (summarizing the Court actions that triggered Franklin Roosevelt's attempt to pack the Court with new judges that would approve New Deal legislation).   The Court's power derives, not from a static grant of constitutional power, but from the Court's ability to fulfill the expectations of society.   See id. at 621, 625 (stating that the Court's power derives from the expectation that the Court will exercise "judgment rather than will").

     Consequently, when the Court fails to fulfill society's expectations, the Court's influence wanes.   See id. at 625 (arguing that, in attempting to bolster the Court's authority as the final interpreter of the Constitution, Justice Felix Frankfurter recast the history of the Court for the New Deal period to give the impression that the Court steadily had satisfied the public's expectation that the Court exercise "judgment rather than will").   That is, the Court must attend to the rate at which the Court fails public expectations, even when duty requires the Court to act against the grain of expectations.   See id. (suggesting that Justice Frankfurter gained more power to enforce the unpopular school desegregation orders by sculpting the Court's history to give the impression that the Court, even in the face of Roosevelt's court-packing plan, decided according to the public's expectation, on the basis of principle regardless of political advantage).    (back to text)

 ³⁰ See Korematsu v. United States, 323 U.S. 214, 246 (1944) (Jackson, J., dissenting) (contending that the Court should attend to the plausible use of the Court's opinion, like a "loaded weapon," as a ready-made justification for racial discrimination and segregation in the future).   Even when the Court's opinion derives entirely from procedural concerns, the Court's action or inaction may remove power from persons attempting to solve the problems underlying the controversy at bar.   See Milliken v. Bradley, 418 U.S. 717, 806 (1974) (Marshall, J., dissenting) (warning that the Court's limiting a desegregation order to the school district containing blacks would result in whites fleeing to the suburbs); Tribe, supra note 6, at 30 (arguing that, in Milliken, the Court may have intended to impose only the remedy that the Court could enforce; however, in not making at least a declaratory judgment against injustice, the Court provided legitimacy to whites moving to avoid schooling with blacks).   The Court's effect on problem-solving derives not only from the remedy but also from the Court's mere proclamation that defendant's actions violate the Constitution.   Tribe, supra note 6, at 30 (arguing that the Court's proclamation of a rights violation, even without a remedy, would have inspired private citizens to work toward narrowing the gap between the constitutional promise and the situation in real life).    (back to text)

 ³¹ See Sunstein, supra note 22, at 1304 (proposing a "quality of life report" for focussing public attention to the elements of social and economic reality that aggregate to comprise the public perception of "quality of life").   A polity does not spontaneously perceive the elements of reality that create the problems in society.   See Sunstein, supra note 22, at 1303-04 (noting that the polity overlooks everyday problems such as education because spontaneous work avoidances such as sensational stories, oversimplifications of causes, and scandals that scapegoat public figures dominate in appeal and misdirect the public's perception of what should be done).   In a democracy, where both electoral and day-to-day decisions derive from the public perceptions of the problems that threaten the "quality of life," government officials must manage the spontaneous processes in the "free market" or the public's decisions do not face reality.   See Sunstein, supra note 22, at 1304 (suggesting that the free market has failed to identify, confront, and monitor the critical conditions that dominate the lives of citizens).   Hence, government officials must develop, publicize, and foster points-of-view that face reality while mobilizing the polity for its work despite the work avoidances generated by the free market of desires and satisfactions.   See Sunstein, supra note 22, at 1324-25 (arguing that, in a democracy, getting the public to face problems such as food shortages may suffice to mobilize effective solutions).    (back to text)

 ³² See, e.g., Marsh v. Alabama, 326 U.S. 501, 506-08 (1946) (looking beyond the mere assertion of property rights to the likely uses that property owners would find for trespass if the Court upheld the conviction of trespass, where the Jehovah's Witness lady had been arrested for refusing to stop distributing religious brochures on the streets of a town owned entirely by a shipbuilding company).   Generally, whatever the Court's decision, the society uses the Court's decision to reduce tension in the society by disregarding, even silencing, the points-of-view of those similarly situated to the losing party.   See Tribe, supra note 6, at 38 (suggesting that, in response to Court decisions, the society reduces "tension" by disregarding the losing party's view on social problems).   Hence, unless the Court regards the effects that flow from its decisions, the Court becomes part of the problem instead of part of the problem-solving process.   Tribe, supra note 6, at 38 (asserting that a responsible Court would consider the foreseeable responses of the society in merely reducing "creative tension" at the expense of the problem-solving that would lead to "progress").    (back to text)

 ³³ See Scott v. Sandford, 60 U.S. (19 How.)   393, 451-52 (1857) (noticing that the Constitution "distinctly and expressly affirmed" the "right of property in a slave" in "plain words--too plain to be misunderstood"); LAURENCE H. TRIBE, AMERICAN CONSTITUTIONAL LAW § 5-16, at 356 (2d ed. 1988) (asserting that the Court in Scott v. Sandford "helped provoke" the Civil War).   Without a compromise between those states demanding slavery and those states demanding the abolition of slavery, the North and South could not have united under the Constitution.   See CARL B. SWISHER, AMERICAN CONSTITUTIONAL DEVELOPMENT 230 (2d ed., 1954) (asserting that "the preservation of slavery furnished the driving power back of theories of state rights and of limitation upon the power of the federal government").   Subsequently, Congress negotiated compromises that permitted slavery in some regions and banned slavery in other regions.   See JAMES A. RAWLEY, RACE AND POLITICS:   "BLEEDING KANSAS" AND THE COMING OF THE CIVIL WAR 148-49 (1969) (maintaining that the creation of the Republican Party derived from the assumption that, under the Constitution, Congress could negotiate the "issue of slavery"); id. at 187 ("The question whether Congress had the authority to prohibit slavery in the territories had divided men into political parties.").

     However, in the Dred Scott case, the Supreme Court declared that Congress did not have the constitutional power to negotiate the issue of slavery.   Scott, 60 U.S. (19 How.) at 452.   As a result, Congress could not mediate the escalating demands between North and South.   Compare DON E. FEHRENBACHER, THE DRED SCOTT CASE: ITS SIGNIFICANCE IN AMERICAN LAW AND POLITICS 175-77 (1978) (describing the success of Congress in fashioning "an expediently vague political settlement" of the issue of slavery in the New Mexico and Utah territories with the Compromise of 1850) with id. at 548- 50 (relating the failure of the Crittenden Compromise in 1860, where the substance was similar to the Compromise of 1850, and the different result arose, not from changed interests or purposes, but rather from what the Compromise, after Dred Scott, "was assumed to signify").   With the clear statement of "rights" in the Dred Scott decision, the Court, perhaps unintentionally, crystallized fixed positions in the society.   See id. at 176-77, 432-33 (noting that the state legislatures in Connecticut, New Hampshire, New York, Pennsylvania, and Ohio passed legislation retaliating against the Dred Scott decision while New Mexico passed a statute enabling slavery as a symbolic support for Dred Scott even though the 1860 census reported no slaves in New Mexico).    (back to text)

 ³⁴ See FEHRENBACHER, supra note 33, at 185-86, 431-32 (recognizing that Northern foes of slavery shifted their rhetoric from organizing the territories against slavery to defying the Court, while Southern strategists turned from defending slavery in the territories to enslaving free Negroes and preventing escape).   After Scott v. Sandford, a discussion of the underlying problems of slavery had little practical value because the apparent obstruction to problem-solving was the Constitution.   See Scott, 60 U.S. (19 How.) at 407-08 (noting that, not only by the plain text of the Constitution but also by the "legislation and histories of the times" of formation of the Constitution, the states universally recognized the right to hold slaves as property, and asserting that the negligible extent of slaveholdings in the North resulted from merely economic decisions of profitability); WILLIAM S. MCFEELY, FREDERICK DOUGLASS 204-05 (1991) (noting occasions, after the Scott v. Sandford decision, where the irrelevant questions of the legitimacy of the Constitution and of the Court obscured and halted work on the problems of slavery).    (back to text)

 ³⁵ See FEHRENBACHER, supra note 33, at 534-35 (noting that, though the Court ruled in favor of the South, the Northern defiance to the Court's decision in Scott v. Sandford strengthened the Southern opinion that secession from the Union would benefit both North and South).    (back to text)

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Riley M. Sinder, John K. Lopker, Ronald A. Heifetz.
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