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Checks, Balance and Judicial Wizardry: Constitutional Delegation and Congressional Legislation

Akron Intellectual Property Journal, Forthcoming

Buffalo Legal Studies Research Paper No. 2011-015

20 Pages Posted: 22 Mar 2011  

Robert I. Reis

SUNY Buffalo Law School


The Supreme Court has decided a number of cases over the past decade affecting Patents and Copyrights. These are preemptive statutory rights, the creation of which has historically been recognized as exclusively delegated to Congress under in Article I, Section eight, cl.8. The apparent spate of recent cases decided by the court is the catalyst for embarking on taking a renewed and expanded look at how these cases relate to issues and resolutions of the past two centuries. As a starting point, the question is whether these cases represent an atypical level of activity on the part of the court and how is that measure to be determined? Does this level of activity reflect the court assuming a distinct role in separation of powers and checks and balances either by their role in (1) reviewing limitations on the power of Congress to enact the legislation in question (Checks) or (2) by accepting a deferential role relative to the delegated powers of Congress, but performing their constitutional function of facilitating purpose through interpretation, implementation and application to specific cases and controversies statutory language tempered by constitutional purpose (Balance). These and related issues provide an interesting change in perspective if followed over time avoiding the micro, viewing the macro and appreciating the "wizardry" of the court through the past two centuries. Despite, the belief that things are "different" in kind or meaning, one observes, for the most part, that the more things change, the more they remain true to the constants that warrant the creation of these rights with purposeful balance of public benefit and private reward. Despite the passage of almost two centuries, and an occasional blip, digression, or momentary paradigm shift, it can be observed through the recitation of the same, or similar, language and articulation of balance and purpose, that with rare exception, the court has accommodated changes in technology, normative behavior and the role of "intellectual property" in a global order.

Table of Contents:

I - Introduction and Overview - A spate of cases measured by decisions over time.

II - The Catalysts and Challenges of Change:
a. Bilski
b. KSR

III - Blips paradigm shifts and Paraphraxies:
a. A blip: Sony (Without the patent act where are we?)
b. A blip correction Grokster: (Bright lines and Safe Harbors)

III - Paradigms-Checks and Balances: Eldred - A Challenge for Democratic Institutions.

IV - A Snapshot in time - A limited and limiting Perspective:
a. Feist, Mazer, Pivot Point and Boison
b. Redux and Conclusion

Suggested Citation

Reis, Robert I., Checks, Balance and Judicial Wizardry: Constitutional Delegation and Congressional Legislation. Akron Intellectual Property Journal, Forthcoming; Buffalo Legal Studies Research Paper No. 2011-015. Available at SSRN:

Robert I. Reis (Contact Author)

SUNY Buffalo Law School ( email )

School of Law
North Campus
Buffalo, NY 14260
United States

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