Owning Precedent

Aside from being today's model of bad writing, Peralta v. Heights Medical Center comes in a line of CivPro reading about dismissing cases (Rules 55 and 41). The reading raises the question:

Who "owns" the judgment of a court? In legal systems in which the judges do the primary investigation of cases (as is true in most civil law systems), the question seems to have a clear answer: The court does. In a system like that of the United States, in which the parties do most of the work involved in presenting evidence and arguing law, do they thereby gain a moral claim to "ownership" of the ensuing judgment? .... The opinion in Bonner Mall rejects such a view, quoting from a dissent of Justice Stevens, in which he contended that "precedents . . . are presumptively correct and valuable to the legal community as a whole. They are not merely the property of the private litigants. . . ." One coudl think of this statement in a number of ways. One would be as a matter of cost accounting: Court "costs" paid by litigants do not come close to paying the expense of operating the judicial system, which is heavily subsidized by tax dollars. What if they did? Should it matter that the parties offer to compensate the system for the full costs of adjudication? Stephen C. Yeazell, Civil Procedure, 5th ed. 601-602, Aspen Publishers, 2000.

What an intriguing set of questions. We already live in a society where an individual or corporation can copyright or trademark a word or phrase, how far are we from private ownership/control over legal precedents? When or if such a thing became possible, it would likely be only a matter of time before huge new corporations sprung up to buy and control as many precedents as they could, licensing them for use at extortionate prices that would increase the costs of litigation by orders of magnitude. Can't you just see this as the basis of some great dystopian sci-fi novel? Blade Runner meets The Firm?

Posted February 25, 2004 07:11 AM | law school