Redundancy: When Law Repeats Itself
84 Pages Posted: 26 Mar 2016
Date Written: March 1, 2016
The idea that law should generally be understood or designed to minimize redundancy informs much legal reasoning. Judges frequently invoke anti-redundancy principles in the interpretation of legal language, whether it appears in classic private-law documents such as contracts or classic public-law documents such as constitutions and statutes. Such invocations of anti-redundancy principles merit scrutiny. The canon against surplusage, an interpretive canon commonly deployed in the interpretation of constitutions, statutes, and contracts, provides an example of both an anti-redundancy principle and the capacity of such a principle to run contrary to actual practice. Among fields of law, modern patent law offers particularly dramatic examples of how excessive adherence to anti-redundancy can lead to perverse or otherwise unintended results. Patent law also illustrates how, despite frequent invocation of anti-redundancy principles, legal redundancy in the form of functionally overlapping language, doctrines, processes, and institutions remains ubiquitous.
The pervasiveness of legal redundancy has at least one straightforward explanation. Redundancy has much to offer. As engineers, biologists, linguists, and information theorists have long appreciated, redundancy can help secure key interests, prevent or correct errors, enable nuance, and foster evolutionary potential. Hence, in a complex society, redundancy is a crucial tool of legal design. Of course, redundancy can be overdone. But instead of enjoying presumptive hegemony, anti-redundancy principles should generally be contextually confined to condemnation of excessive or otherwise problematic redundancy, rather than redundancy per se. In the development and application of law, anti-redundancy should often be no more than a factor, as opposed to a source of general presumption. Particularly when law mediates between competing interests of comparable social weight, anti-redundancy can have merit. Nonetheless, even in such situations, smart legal design, as through the layering of rule-like “safe harbors” over comparatively vague standards, can employ redundancy while satisfying anti-redundancy concerns. Generally speaking, opportunities for intelligent design mean that legal policy makers and decision makers should not seek to banish redundancy, but instead work to optimize its use.
Keywords: redundancy, anti-redundancy, surplusage, superfluity, safe harbor, compartmentalization, interpretation, construction, patent, claim differentiation, doctrine of equivalents, subject-matter eligibility, patentable subject matter, unconscionability
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