Posner’s “judicial interpretive updating” and the disparagement clause (Best of 2017)
Originally posted on April 16, 2017.
Thank God for small favors. Like being far away from the Seventh Circuit these days if you or your client want to rely on the words of a statute to determine what the law is.
Simon Tam and the Slants do. An important argument in Respondent Simon Tam’s merits brief submitted in the U.S. Supreme Court review of In Re Tam, 808 F.3d 1321 (Fed. Cir. 2015) was, as was observed by a select few, premised on statutory, not constitutional interpretation. And that argument obviously relies on the words of the Lanham Act and their likely meaning based on the time and place of its passage:
The history of the disparagement clause confirms that it was not intended to protect racial and ethnic groups. The clause was added in 1939 to one of the bills that eventually became the Lanham Act in 1946. H.R. 4744, 76th Cong., 1st Sess. (1939), § 2(a). It is very unlikely that members of Congress were concerned about trademarks that were disparaging to racial or ethnic groups in a period when much worse forms of discrimination were still common and civil rights legislation was not yet on the horizon. . . .
The purpose of the disparagement clause was not to protect minority groups. Rather, the purpose was to bring American trademark law into conformity with American treaty obligations. . . .
As enacted, section 2(a) of the Lanham Act slightly reworded the Inter-American Convention provision without any loss in meaning. It barred the registration of marks that “disparage” or “bring … into contempt, or disrepute” (rather than “expose … to ridicule or contempt”) the same list of plural nouns as in the Convention—persons, institutions, beliefs, and national symbols. The history of the disparagement clause thus confirms that the clause was not intended to protect minority groups against trademarks that use derogatory words.
This is the kind of argument that used to be considered as something you put in an appellate brief because, well, obviously. You would expect pushback from your adversary based on his understanding of the words and the legislative context in which they were chosen, or of course your analysis. But no one in his right mind would come right out and suggest words and context don’t make a damned bit of difference at all.
Where I practice law, that is still true. And it’s a good thing for Simon Tam that the Supreme Court isn’t the Seventh Circuit after its astonishing en banc decision in Hively v. Ivy Tech Community College of Indiana, 2017 U.S. App. LEXIS 5839, (7th Cir., April 4, 2017). As Josh Blackman put it on Twitter:
Judge Posner invents a new form of statutory interpretation: “judicial interpretive updating.” pic.twitter.com/yhFsOmx9aF
— Josh Blackman (@JoshMBlackman) April 4, 2017
What’s the fuss about? Plenty. From Josh’s blog:
[Statutory] interpretation can mean giving a fresh meaning to a statement (which can be a statement found in a constitutional or statutory text)—a meaning that infuses the statement with vitality and significance today. An example of this last form of interpretation—the form that in my mind is most clearly applicable to the present case—is the Sherman Antitrust Act, enacted in 1890, long before there was a sophisticated understanding of the economics of monopoly and competition.
Times have changed; and for more than thirty years the Act has been interpreted in conformity to the modern, not the nineteenth-century, understanding of the relevant economics. The Act has thus been updated by, or in the name of, judicial interpretation—the form of interpretation that consists of making old law satisfy modern needs and understandings. And a common form of interpretation it is, despite its flouting “original meaning.” Statutes and constitutional provisions frequently are interpreted on the basis of present need and present understanding rather than original meaning—constitutional provisions even more frequently, because most of them are older than most statutes.
Every judge a dictator.
WHEN APPROACHING A CASE, JUDGES SHOULD FIRST ASK: “WHAT WOULD POSNER DO?” #WWPD
— POSNER THOUGHTS (@Posner_Thoughts) April 12, 2017
I recently praised the Seventh Circuit, and Judge Posner, for their common sense reading of the Lanham Act’s dilution provisions. But as Josh notes, correctly, on his blog, “Nonsense is an apt way to describe Posner’s opinion” and the frightening concept of “judicial interpretive updating” he enunciated in Hively.
It’s good to be the king. For the rest of us, however — and certainly for The Slants — it’s good not to be in the Seventh Circuit.
UPDATE: Goodbye, Judge Posner.