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Supreme Court Doesn't Need Spider-Man Reboot

Noah Feldman is a Bloomberg View columnist. He is a professor of constitutional and international law at Harvard University and was a clerk to U.S. Supreme Court Justice David Souter. His books include “Cool War: The Future of Global Competition” and “Divided by God: America’s Church-State Problem -- and What We Should Do About It.”
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The Spider-Man franchise has been rebooted many times since Stan Lee and Steve Ditko invented the superhero in 1962. But the Spider-Man tradition reached a new peak Monday when the web-spinner became the centerpiece of a U.S. Supreme Court decision about, of all things, tradition, specifically the use of precedent in the court's opinions. Justice Elena Kagan, writing for a 6-3 majority, sprinkled in clever Spider-Man references, enhancing her reputation as the funniest justice in writing. But the subject of precedent is in fact as serious as a radioactive spider bite -- and just as basic to the Supreme Court’s foundation myth as Peter Parker’s bite is to Spider-Man’s.

The case involves a toy that will be familiar to anyone who was a child or has had a child since the 1990s -- the can of foam string that, suitably attached to a child’s arm and manipulated by an easily breakable plastic contraption, enables said child (or, said Kagan, “young-at-heart adults”) to shoot Spider-Man-like webs across the room until the foam runs out and the can must be replaced.

The toy was invented and patented in 1990 by one Stephen Kimble. He tried to sell the patent to Marvel Entertainment, which owned the Spider-Man character, but Marvel instead ripped off the design and started marketing its own Web Blaster™ without buying Kimble’s patent. Kimble sued Marvel, and Marvel settled with him in 1997. As part of the settlement, the company paid Kimble roughly $500,000 and promised him 3 percent of all future sales of the Web Blaster “for as long as kids want to imitate Spider-Man (by doing whatever a spider can),” as Kagan put it.

The deal was good for Kimble, because each successive Spider-Man reboot generates new demand for a web-shooting toy, and so far, no one’s invented a better one than Kimble’s. Marvel agreed to the deal -- and the company, which controls reboots, was in a much better position than Kimble to assess its future value.

But Marvel reneged on the deal in 2010. Its lawyers stumbled on a 1964 Supreme Court case called Brulotte v. Thys Co., which apparently neither they nor Kimble had heard of when they signed the deal. The Brulotte case established a categorical rule that patent holders may not be paid royalties beyond the date of the patents they hold. This killed the settlement deal.

The Brulotte case itself is a historical curiosity. It involved a patented hop-picking machine that was licensed to hop-pickers in Yakima County, Washington. Under the terms of the license, hop-pickers had to pay a royalty on hops picked by the machine -- forever.

The opinion was written by Justice William O. Douglas, who considered Yakima County his home and considered small farmers like hop-pickers to be his people. Douglas, who was in his way a genius, was famous for dashing off opinions in a half-hour on a legal pad and getting them published almost immediately. The Brulotte case was argued on Oct. 20, 1964, and decided less than a month later, on Nov. 16 -- a Douglas high-speed special, in time (one imagines) for the next hop-growing season.

Douglas’s reasoning was direct and compactly expressed: “The contracts are … on their face a bald attempt to exact the same terms and conditions for the period after the patents have expired as they do for the monopoly period.” He suggested that there had been no arms-length bargain: The hop-pickers needed the patented machines, and so had been forced to accept the permanent royalty. They were the good guys; the patent holder was the bad guy.

Justice John Marshall Harlan, the second of that name to serve on the court, was the temperamental opposite of Douglas, and incidentally a great champion of gradualism and precedent. He dissented, implicitly criticizing Douglas’s dispatch by writing that “more discriminating analysis than the Court has seen fit to give this case produces a different result.” He said the machine-making company owned both machines and a patented idea. The idea couldn’t be licensed beyond the patent period -- but the machines could be.

The issue for today’s court in the Spider-Man case was whether to overturn the Brulotte decision. In refusing to do so, Kagan said there were several special reasons to stick with “stare decisis,” the law-Latin name for following precedent. In particular, she said, following precedent was especially important when the case “interprets a statute. Then, unlike in a constitutional case, critics of our ruling can take their objections across the street, and Congress can correct any mistake it sees.”

On the surface, this argument that statutory precedent should be respected more than constitutional precedent is surprising. You might have thought exactly the opposite: that precedent was especially important when the court effectively can’t be overturned, whereas if the court gets a statutory case wrong, Congress can correct it.

But it turns out the court has made the point before, notably in a 1989 opinion by Justice Anthony Kennedy, which Kagan cleverly cited. Kennedy, you see, is about to make new constitutional law and overturn precedent by announcing a right to gay marriage -- and it might otherwise have been embarrassing for him to join an opinion singing the virtues of stare decisis. Count on Kagan to help him out.

Kagan added that precedent is especially important when property rights are at stake. Combined with the fact that Congress hadn’t overruled the 1964 Brulotte decision, she said, the precedent here called for “a superpowered form of stare decisis.” Spider-Man was again in the house, and at the core of the court’s decision.

It’s ironic (in the technical sense) that the court used the logic of stare decisis to uphold Douglas’s dashed-off 1964 opinion, and refused to adopt the more thoughtful opinion of Harlan, the advocate of precedent. As Kagan put it, stare decisis is more significant when the prior decision is wrong -- correct precedents need no propping up.

But as the gay marriage decision will show sometime before the end of June, the court’s reliance on precedent is highly selective. Stare decisis is, in truth, a bit of a myth -- like Spider-Man.

This column does not necessarily reflect the opinion of Bloomberg View's editorial board or Bloomberg LP, its owners and investors.

To contact the author on this story:
Noah Feldman at nfeldman7@bloomberg.net

To contact the editor on this story:
Stacey Shick at sshick@bloomberg.net