SUMMARY
OF THE ARGUMENT
INTRODUCTION
I. THE SUPREME
COURT'S CONSTITUTIONAL
DUTY TO
PROMOTE PROGRESS:
PATENT
LAW
A. Basis
for the Court's Duty
B. Construing
the Constitutional Terms
1.
"Inventor"
2.
"Discovery"
3.
"Exclusive Right"
4.
"To Promote Progress"
II. CONSTITUTIONAL
TOOLS
FOR MANAGING THE NATION'S
PROBLEM-SOLVING
A. Self-Limitation
of Power
B. Deciding
Who Decides
C. Governing
the Society's Resources for Problem-
Solving
III. MODEL
FOR PROGRESS:
THE SUPREME
COURT'S EFFECT
ON PROBLEM-SOLVING
A. Identifying
the Nation's Problem-Solving Structures
and Processes
1. Reality:
Different Factions, Different Cognitions
2. Adaptation:
"Better" Adaptations
Resolve
Threatening Problems
3. Facing
Reality: Considering Available Evidence
4. Reality-Testing:
Intending, Implementing,
Monitoring, and Mid-Course Correcting
5. Indications
of Work Avoidance: Rising
Urgency,
Disequilibrium
6. A
Demanding Reality, Incorporation of Reality,
"Better"
Adaptations Incorporate More of Reality
7. Progress:
Better Adaptations Becoming Possible
8. Learning:
Implementing Better Adaptations
9. Symptomatic
Responses: Darkening Clouds Indicate
But
Do Not Necessitate Rain
B. Basis
for Intervention
1. Authority:
Maintaining Equilibrium
2.
Leadership: Mobilizing for
Progress
3.
The Parties in a Case Represent
Avoided Parts
of
a Problem
4. Democracy:
People Solving Their Own Problems
5.
Constitutional Rights: But
What of Responsibility
for
the Exercise of Rights?
6. Ripening
an Issue in the Society
7.
Declaratory Judgment:
The Power of Incomplete
Remedies
IV. ENCOURAGING
PROBLEM- SOLVING
WITHOUT DICTATING
SOLUTIONS: ALTERNATIVE
READINGS OF COURT
HISTORY
A. Lest
the State Establish Religion
B. Avoid
Only the "Appearance" of Evil
C. Make
the People Do Their Work
CONCLUSION:
THE COURT'S
LEGITIMATE ANTI-
MAJORITARIAN POWER,
PROMOTING PROBLEM-
SOLVING IN THE SOCIETY
* Riley
M. Sinder is a business attorney in Seattle, Washington; Member of the
Washington State Bar and State Bar of California; S.B., 1964, Massachusetts
Institute of Technology; Ph.D., 1975, University of California at Los Angeles;
J.D., 1994, American University.
** John
K. Lopker is a business attorney in Los Angeles, California; B.A., 1978,
University of California at Los Angeles; J.D., 1987, George Washington
University.
*** Ronald
A. Heifetz is Director of the Leadership Education Project at the John
F. Kennedy School of Government, Harvard University; A.B., 1973, Columbia;
M.D., 1977, Harvard; M.P.A., 1983, Harvard.
We particularly acknowledge Alan Silverstein
for his creativity and cleverness in pushing this project forward in the
early stages. Our ideas derive not only from the formal sources noted in
the text but also from the insights and phrases of Sousan Abadian, John
Astwood, Corinne Dieterle, Lynn Etheridge, Joe Goodnough, Virginia Thorndike,
Judy Keeler, Walter Lowney, Carol McCarthy, Juni Nathani, Joan Singer,
Sarah Wolfe Notter, and other rapporteurs on progress. We thank our numerous
legal colleagues who displayed the grace of the compassionate scholar to
suggest improved arguments for this article, regardless of support or opposition
for the conclusions.
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