Moving Forward: Judge Stoll

On a voice-vote, the Senate Judiciary Committee has unanimously approved President Obama’s nominee Kara Stoll to be the next addition to the Court of Appeals for the Federal Circuit.  Now that the log-jam over Loretta Lynch’s nomination as attorney-general is coming to a close, I would expect full Senate approval within the next few weeks.

See: Nomination memo;

The following are a few responses to Questions For the Record asked by some members (Grassley/Cruz) of the Senate Judiciary Committee:

What role, if any, should the constitutional rulings and doctrines of foreign courts and international tribunals play in the interpretation of our Constitution and laws

Response: None.

What is your definition of natural law, and do you believe there is any room for using natural law in interpreting the Constitution or statutes?

Response: Commentators have defined natural law as a system of rights or justice held to be common to all humans and derived from nature. Natural law is not precedent, nor is it constitutional or statutory text. If confirmed, I would not rely on natural law to interpret the Constitution or statutes.

71 thoughts on “Moving Forward: Judge Stoll

  1. 8

    What role, if any, should the constitutional rulings and doctrines of foreign courts and international tribunals play in the interpretation of our Constitution and laws

    Response: None.

    That certainly is the “easy” answer that will satisfy those who who are most concerned. A perfectly reasonble alternative would be to recognize that intelligent people evaluating the merits of a particular proposed law would look at similar laws in other jurisdictions and the results of those laws, with an understanding that differences and similarities in the underlying facts (including over-arching restrictions such as Constitutions) may affect the value of the comparison.

    Individual state courts in the US engage in such reasoning on a very regular basis when evaluating the merits of state legislation. There’s nothing wrong with judges using their brains.

    1. 8.1

      The correct answer, surely is an advisory role: courts and legislative bodies should always see what is done elsewhere when considering the interpretation of domestic law.

      The contrary view amounts to unnecessary and wilful blindness. Is this truly a point of view that the US wishes to advertise to its friendly allied nations?

      1. 7.1.1

        1800. US a “war” with France. There is an embargo.

        A ship named the Jane sailed from in Baltimore in 1800 to the Caribbean. There it was sold to one JS, who was “Dutch.” JS changed the name of the vessel to the Charming Betsy, loaded it with cargo and had it set sail for Guadalupe. It was taken by French privateers and retaken by an American warship, the Constellation. Its cargo was sold and shipped itself was taken back to the United States because the captain believed the ship to be an American vessel violating the embargo.

        It was later discovered that the Dutch citizen was actually an American who had moved to the Dutch Caribbean when he was a youth. The United States defended that the pretended sale to the phony-Dutchman was only intended to evade the embargo.

        The Supreme Court ruled that the embargo statute should be construed to be consistent with international law. According international law, an American citizen can become naturalized in a different country. Thus JS was a bona fide Dutchman and the sale of the Jane to JS was a bona fide sale. The ship was Dutch and its use to voyage to Guadalupe did not violate the embargo.

        The case has come down for the rule that statutes must be construed to be consistent with international law.


          Thanks Ned.

          Was any such “international law” self-enacting, or was a subsequent law passed to enact the agreed-to “international law”…?

          I ask because gen er ally speaking we all know that international agreements are NOT self-enacting.


            anon, link to

            Here is the quote:

            “It has also been observed that an act of Congress ought never to be construed to violate the law of nations if any other possible construction remains, and consequently can never be construed to violate neutral rights, or to affect neutral commerce, further than is warranted by the law of nations as understood in this country.

            These principles are believed to be correct, and they ought to be kept in view in construing the act now under consideration.”

            Treaties can create new law, but they are like statutes, not common law. International law goes back to the Roman Empire and even earlier. link to This law is known as jus gentium.

            In contrast, treaties are known as jus inter gentes.

            I am not sure the principle of Charming Betsy extends beyond jus gentium. However, it does stand for this:

            “…[T]he Charming Betsy doctrine is grounded in separation of powers concerns, such that unless Congress clearly expresses its intent to do so, courts will not interpret domestic statutes in a manner that would put the United States out of compliance with international norms. The purpose of the doctrine, therefore, is to prevent courts from creating foreign relations difficulties for the United States by unnecessarily creating conflicts between domestic and international law when interpreting ambiguous statutes.”


              Thanks again Ned.

              Paul’s reference to TRIPS is why I point out the non-self-enacting position (too many otherwise intelligent people fail to realize that TRIPs was NOT self-enacting).


                TRIPS was a treaty entered into following a US initiative.

                So decisions of the US courts should be construed so as to make US domestic law at variance with a treaty that the US Government wanted?


                It takes some understanding for those of us in Europe.

                1. Paul, it’s not the question of whether TRIPS was a treaty entered into at the request of the United States, rather it is a question of whether the United States Senate ratified the Treaty.

                  Second, treaties are normally not self-executing in the United States. They have to be brought into force by statute. It is the statutes that control, not the treaty.

                  Is not the same though with respect to international law is brought down to us from the Roman Empire. That’s a horse of a different color.

                2. As I said, some otherwise intelligent people….

                  Not self-enacting is not that difficult a concept, and NO judge better be interpreting a law based on something not actually enacted into law by the proper branch of the government…

                  Leastwise in patent law, a statutory law scheme.

                  (One hour six minute mark -still waiting Ned)


                Still waiting for what anon?

                I agree with you on TRIPS. We don’t have to conform our laws to that treaty except to the extent that congress has enacted statutes to implement. It is congress that sets the policy.

                1. The one hour six minute reference is to the movie “The Paper Chase” and deals with a comment that is germane here as to statutory law and judicial funny business.

                2. anon, why don’t you take a clip, post it up at YouTube and link it here for all to see? Apparently that movie is so popular as to still command a fee for viewing. But the clip?

                  Fair use.

                3. It is VERY SIMPLE.

                  The US is a party to TRIPS and a member of the WTO.

                  If there are two available interpretations of statute law and judicial precedent, one of which is consistent with the obligations that the US Government and those of many other countries have entered into and the other of which is inconsistent, then there are good reasons for adopting the consistent interpretation. A US court should not proceed blindly of the obligations entered into by the US Government.

                  I am not in a position to say whether TRIPS binds the US courts, but irrespective of that its provisions must have some persuasive value.

                4. Where is your line between “must persuasive” and “binding”…?

                  In fact, an argument CAN be made that the act by Congress to NOT enact is at least persuasive in the other direction than what the international community has done, as Congress has chosen NOT to do something everyone else is doing.

                  Judges don’t get to make the leaps that you want, least wise with statutory law.

                5. I am nowhere near the situation of MUST and BINDING.

                  The biotech cases with which I am particularly concerned involve matters of interpretation. For example, it is possible (though probably incorrect) to interpret Funk Brothers as the Federal Circuit has recently done as the basis for categorical exclusions e.g. for naturally occurring microorganisms. That approach has the advantage that people need make minimal use thereafter of that energy-intensive bodily organ, the brain. Alternatively the case could be interpreted in a fact-specific manner, avoiding categorical exclusions as the majority opinion in Bilski indicated was desirable. The downside of that approach is that the brain is exercised because the attorneys and judges have to think in each individual case whether categorical exclusion is appropriate. But the decision between one approach and the other is a matter of choice and policy – it is not clear that there were clear and unavoidable rules of law laid down in earlier decisions that call for one or the other approach to be adopted.

                  It is in that situation, where the decision maker has an element of choice in the decision he or she reaches, that the Charming Betsy considerations are helpful. Avoiding choices that put the US out on a limb are to be avoided. Indeed, I seem to recall Justice Sotomayor saying much the same thing in oral argument in Myriad.

                6. Paul,

                  I “get” that you want your “use your brain” option to cover what you think is a proper application of the Supreme Court decisions, but as you have been plainly informed, those decisions were simply not written well enough so as to preclude the actual applications of those decisions in ways that strike you as NOT “using your brain.”

                  You simply want more than what is actually there.

                  Sorry. (As we all should be with those Supreme Court decisions)

  2. 6

    “What role, if any, should the constitutional rulings and doctrines of foreign courts and international tribunals play in the interpretation of our Constitution and laws

    Response: None”

    Well so much for Heller’s Convoluted logic and legal theory that, ” the importation of English law in 1792 has statutory authority over our Congress and Supreme Court controlling case law in Bilski and Diehr.” But what does this nominee know? According to Ned, anyone that disagrees with his theory is simply not very smart. :-/

    1. 6.1

      Well 101, it is interesting, then, that the new Judge Stoll seems specifically ignorant of our history, and is willing to pander.

      I definitely do not welcome this kind of appointment.

      1. 6.1.1

        Ned, Behind a pay wall, so no link, but you might be interested in the (growing) sentiment that our top court is little out of control. From The National Law Journal, Tony Mauro, April 23, 2015:

        Sen. Chris Murphy, D Connecticut, said at a Capitol Hill press conference. The rest of the federal judiciary lives by a code of conduct, he said, making the justices “the only nine judges in the entire federal judiciary” who have no binding ethics code.


        The executive director of Fix the Court [Gabe Roth], an advocacy group established last year to push the justices toward greater accountability and transparency, also spoke at the press conference.

        As I recall, Fix the Court is also involved in removing patent law appellate jurisdiction from the Supreme Court and letting the Article III CAFC have the final word (so as to restore the mandate for that judicial body in line with which it was created by Congress, under Congress’s authority under the constitution).


          These people cannot be taken seriously.

          Where do you get the idea that congress can create two supreme courts?


          Anon, a lot of debate on the Exceptions Clause: link to

          To me, it seems that congress is free to create lower federal courts and require cases to go there first, but it cannot ultimately deny review by the Supreme Court.

          “Like Justice Stevens, Justice Souter noted that the Act did not, at least as applied in this case, totally cut off the Court’s power of appellate review: “I write only to add that if it should later turn out that statutory avenues other than certiorari for reviewing a gatekeeping determination were closed, the question whether the statute exceeded Congress’s Exceptions Clause power would be open.” Feltner, 518 U.S. 651, at 661–62.


            Compare and contrast:

            Original jurisdiction

            Non-mandatory appellate jurisdiction

            Your expressed view here is not grounded in the U.S. Constitution.

            (Habeas and appeal of patent law are two very distinguishable subjects, so your case cite is inapposite here)


              anon, the whole judicial power of the United States is in the Supreme Court because lower federal tribunals are optional. The thinking of the founders was that the state courts could be the primary courts of the land adjudicating all kinds of issues. It was thought even that all criminal actions would be prosecuted in state courts and to a jury. The idea was that the Supreme Court would be available to resolve legal issues involving federal law on appeal from state courts.

              Now, if one considers that the appellate jurisdiction is from state courts, the Exceptions clause begins to make sense. For example, Congress could except from Supreme Court review any determination based solely on state law.

              But Supreme Court has never addressed the Exceptions clause to consider whether Congress could create another federal court that would be the ultimate court for considering certain kinds of issues. This would be in effect creating two different Supreme Court’s of the land. I doubt that the Supreme Court would endorse and approve of this interpretation of the Exceptions clause.


                You have managed to greatly confuse yourself with the non sequitur of state/federal.

                Try to focus on the simple point: non mandatory appellate jurisdiction can be taken from the Supreme Court by Congress per the constitution.


                Patent law appellate practice is non mandatory jurisdiction.


                Connect those (and only those) two dots.

                Marbury is not reached because an Article III court retains power of judicial review.

                Your adoration of the Royal Nine blinds you to an important checks and balances element here – one fitting to correct the mashing of the nose of wax.

                1. Well, anon, we shall agree once again to disagree. The issue you say is decided is, in point-of-fact, open. See, Steven, Breyer et al., supra.

                2. As I pointed out to you Ned, the case you presented is inapposite as that case dealt with habeas and NOT a non-mandatory jurisdiction issue.

                  Please do not cite inappropriate case law after you have been corrected.

                3. anon, first, I notice the link above did not work properly. Try this: link to

                  The case cite is Felker v. Turpin, 518 US 651 – Supreme Court 1996 link to

                  The court has never been presented a case where all modes of appeal, whether by direct appeal, or by writ of error, scire facias, mandamus, or certiorari, to the Supreme Court of any issue or category of issues has been denied by congress.

                  Since, Marbury declared that the Supreme Court is the ultimate interpreter of the law, denial of access to the Supreme Court would seemingly, on its face, usurp the powers of the Supreme Court in the constitution.

                4. The article I cite:
                  John Eidsmoe, The Article III Exceptions Clause: Any Exceptions to the Power
                  of Congress to Make Exceptions?, 19 REGENT U. L. REV. 95, 145 (2007)

                  See, e.g., John Eidsmoe, The Article III Exceptions Clause: Any Exceptions to the Power of Congress to Make Exceptions?, 19 REGENT U. L. REV. 95, 145 (2007) (considering the historical evolution of the Exceptions Clause and the possible negative consequences of a broad interpretation of the Clause that allows jurisdiction-stripping); Eugene Gressman & Eric K. Gressman, Necessary and Proper Roots of Exceptions to Federal Jurisdiction, 51 GEO. WASH. L. REV. 495, 516–31 (1983) (advocating maintenance of a narrow interpretation of the Exceptions Clause, for a broad interpretation could strip the Supreme Court of essential functions); Ira Mickenberg, Abusing the Exceptions and Regulations
                  Clause: Legislative Attempts to Divest the Supreme Court of Appellate Jurisdiction, 32 AM. U. L. REV. 497, 513, 515 (1983) (noting that, at the Constitutional Convention,
                  the debate did not focus on Congressional control over the Court’s appellate jurisdiction but on whether that jurisdiction should reach findings of fact as well as conclusions of law, and concluding that, “[t]he remarks of the Framers leave no doubt that the exceptions clause was intended to permit only those exceptions to the Court’s
                  jurisdiction over factual issues as would be necessary to preserve the integrity of state juries. . . . At no time did the Framers consider the possibility that the exceptions
                  clause could be used to limit Supreme Court jurisdiction over questions of law”); James E. Pfander, Federal Supremacy, State Court Inferiority, and the Constitutionality of Jurisdiction-Stripping Legislation, 101 NW. U. L. REV. 191, 201 (2007) (arguing that certain
                  forms of jurisdiction stripping violate the constitutional requirements of supremacy and inferiority); Robert J. Reinstein & Mark C. Rahdert, Reconstructing
                  Marbury, 57 ARK. L. REV. 729, 792 (2005) (discussing the possibility that Congress could transfer a category or sub-category of cases from the Court’s appellate to its original jurisdiction); Mark Strasser, Taking Exception to Traditional Exceptions Clause Jurisprudence: On Congress’s Power to Limit the Court’s Jurisdiction, 2001 UTAH L. REV. 125, 126, 145–48, 186–87 (arguing that Congress’s power to limit appellate jurisdiction is
                  more limited than traditionalist scholars believe, especially if the limitation does not involve an area requiring specialized legal expertise); see also THE FEDERALIST No. 81, at 488 (Alexander Hamilton) (Clinton Rossiter ed., 1961) (recognizing the “clamors”
                  against Supreme Court appellate jurisdiction over matters of fact, and its response to those concerns).

                  Steinman, J. E., “Appellate Courts As First Responders: the Constitutionality and Propriety of Appellate Courts Resolving Issues in the First Instance,” Chicago-Kent College of Law legal studies research paper number 2012-02, 1521-1620, at 1543, n. 62.

                5. Ned,

                  Thanks for the readings – I will wade through some of them carefully, while others are either clearly off point (focusing on the state/federal issue) or are evidently pandering to a desired end of limited use of what is plainly in the constitution.

                  I have very little care for those with an ulterior motive that only serves to prevent a proper checks and balances of ALL three branches and especially the Royal Nine who are by far the most egregious violators of the separation of powers today.

                6. anon, I know you will like them. This whole issue is exploding at the moment as there seems to be a war going on between the courts and the other branches of government.

  3. 5

    Thanks for the link.


    1. Compares the 9-0 Alice to cases from the 30’s and 40’s which had strong dissents. Even Aro I and II had dissents. Clearly, 9-0 is a message the Supreme Court is sending not only to the Federal Circuit, but to the likes of you, Mr. Mossinghoff.

    2. Who are these “groups” of which you speak? AIPLA? IPO? Who? Yeah, they are part of the problem, Mr. Mossinghof, not part of the solution.

    3. What is your message to congress, Mr. Mossinghoff? That a 9-0 decision should be viewed as something that has to be overturned as clearly wrong? 9-0?

    I thought that Mossinghoff was intelligent and honest. I guess I was wrong.

    The ’52 Act, in retrospect, was filled with errors, ambiguities and bad policy from one end to the other. It caused more problems in patent law than any other patent act in history. I could spend all day citing chapter and verse. The people behind the changes did not truly understand patent law in depth, were bad draftsmen, and to the extent they were making policy choices, they routinely chose wrong. Never in the history of patent law were we lead by such an unfortunate few. Those bad of brothers shall be remembered from this day to the ending of the world for their deeds, not their words. And their deeds shall live in infamy.

    1. 4.1

      Night will be ecstatic. A EE, a patent examiner for circuits and software (sounds like a sword and sandal epic), a patent litigator. Ideal for the Federal Circuit.

      However, not Supreme Court material.

      I seriously think the Federal Circuit needs an upgrade. But getting truly qualified people to sit on that bench must be a very challenging task.

      Which is one of the reasons we need to reconsider the court ill as conceived. If we cannot get well qualified people to sit on that bench because it is an career ending appointment, we should move on.

  4. 3

    In another installment of the battle between the Supremes and the Government, there is a nice write-up on the oral arguments in the raisin case that was discussed in the comments a few weeks ago.

    Pretty sure this one is going to turn out badly for everyone except, perhaps, for the not-“little”-by-a-long-shot raisin growers who brought the suit (a familiar story).

    link to

    Justice Antonin Scalia compared the New Deal era’s “central planning” to what Russia’s communist regime “tried for a long time.” That was more extreme than other comments, but it only made the prevailing sentiment more vivid. Chief Justice John G. Roberts, Jr., conjured up a scene of a government truck coming in “the dark of night” to scoop up a farmer’s produce and haul it off — something that never happens under the program at issue.

    What clearly was happening in this argument was that a California raisin-growing family had, through its lawyers, set the Court to thinking that the program that had been running since 1949 with the industry going along all the way was not a delicately balanced marketing regime, but a grab for property with nothing coming back to the farmers. …

    It was difficult throughout the argument to get at just what conceptually was going on. Did the Court’s members really think this one program had become one of unfeeling bureaucratic excess, and that made it impossible for the Justices to allow themselves to get familiar with its actual functioning? Or did they understand the details perfectly, and found them to be only reinforcements of the idea that Big Government was simply taking advantage of Little People?

    Good ol’ Breyer, at least, seems to have not drunk the kool-aid (maybe prune juice is more apt here).

    1. 3.1

      Hard to think of a compelling reason why the government should operate a “Raisin Administrative Committee.”

      Seems absurd on its face. Open to arguments, though?

      1. 3.1.1

        Hard to think of a compelling reason why the government should operate a “Raisin Administrative Committee.”

        It’s a small part of a larger system of agricultural commodity regulation and not some government scheme arbitrarily created to “steal” from our nation’s beloved — and totally independent and unsubsidized! — “little” growers of thousands of pounds of raisins. That’s the point of the article.

        I love how the historic drought the West is facing right now got a bit of lip service. Presumably the deepest freedom lovers understand that plants need water. Interesting fact that is occasionally forgotten: humans don’t require raisins in their diet, or grapes for that matter. They do need water, however.



          I agree with you to some extent. Water in general is hugely subsidized, especially in the West. Of course, agriculture is subsidized as you seem well aware. In that context, some regulation is necessary.

          I’m obviously more libertarian leaning than you. I’d prefer less regulation but also that the price of water reflect its cost and therefore (presumably) make it economically impossible to grow water intensive crops in places where it doesn’t make sense.


            but also that the price of water reflect its cost

            The American public will NEVER accept the actual reflection of costs in such basic goods.


            And neither would any other county in the world (you will – and do – have third world countries wanting “exceptions” to “catch up.”

            Why do you think cost factors leave this country and seek out cheap (read that as avoiding costs induced by such things as labor and environmental laws) in the first place? If you really want to have a level playing field, ALL parties must be included for ALL costs, and NO exceptions show just how unfeasible this line of thought is.


              …an example for basic goods is energy – if all “public” costs were to be actually captured in the end goods, the entire economy would collapse.

              If you want to solve the real problems, a much more difficult subject will need to be broached.

  5. 2

    In response to “overstepping” by the Supreme Court, a handful of Republican Congressmen propose stripping it of appellate jurisdiction over certain matters — a strategy proposed innumerable times here and elsewhere by a handful of software patent proponents:

    link to

    Let’s call it a “trial balloon” and see what happens.

    1. 2.1

      “…federal courts have perverted the Constitution to make law and create constitutional rights to things such as privacy…”

      I always knew Rep. Steve King was a vinegary product, but the statements on that page make you feel like you are in bizarro land.

      1. 2.1.2

        Classic ad hominem – attack the speaker (and any collateral issues that speaker may have), and say nothing on the substantive issue itself.

    2. 2.2

      MM, the arrogance of these folks talking about removing issues from the courts.

      Reminds me of the current position of the PTO that courts cannot review IPR institution decisions in violation of 315(b). (I might have been the source of their current position as I argued in our Mandamus that such was possible interpretation of the statutes. After our Mandamus, the government changed their position from one that argued that 315(b) decisions were reviewable from a final decision to their current position that there is not court review at all.)

      Anyhow, there seems to be a major power struggle going on between congress and the executive on the one hand, and the courts on the other. Fortunately, the Supreme Court has the final say. Marbury v. Madison.

      1. 2.2.1

        Don’t think the word “arrogance” is the right word, Ned.

        Also, the word “courts” is not the right word; rather, it is only the Supreme Court (for obvious reasons).

        So the Marbury case is safe if Congress selects an Article III court and simply removes appellate jurisdiction from the Supremes.

        And yes Ned, Congress has that power form the Constitution.

  6. 1

    Sen. Ted Cruz (R-TX) asked some other interesting questions:

    3. With the assumption that you will apply all the law announced by the Supreme Court, please name a Warren Court, Burger Court, and Rehnquist Court precedent that you believe was wrongly decided—but would nevertheless faithfully apply as a lower court judge. Why do you believe these precedents were wrongly decided?

    Response: If confirmed, I will faithfully follow the precedents of the Supreme Court regardless of whether I believe these precedents were wrongly decided.

    10. Please name a Supreme Court case decided in the past 10 years that you would characterize as an example of judicial activism.

    Response: I cannot identify a case that I would characterize as an example of judicial activism, where a judge relied on his or her personal views to decide a case as opposed to applying the rule of law.

    1. 1.1

      Sen. Cruz should’ve known that those questions would never get answered. The Office of Legal Policy advises nominees, and there’s never anything to be gained by taking the bait and giving honest answers. Some guy named Robert Bork tried the honest-answers thing almost 30 years ago, and it turned out to be a trap.

    2. 1.2

      Well MM, I would say “Bilski,” but not because its outcome was wrong, but because it said the problem with the claims in that case was “abstractness.’

      1. 1.2.1

        Ned Heller: “problem with the claims in that case was “abstractness.”

        Because that was issue. There was certainly no problem with business methods, or even methods.

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