JUSTICE BREYER: Can I make that statement in an opinion, and you’ll say, that’s right?
MR. CLEMENT: I think what you could say —
JUSTICE BREYER: Can I say that?
MR. CLEMENT: I don’t think you can say just that.
There may be instances in the law where text or history or tradition leaves room for a judicial decision that rests upon little more than an unvarnished judicial instinct. But this is not one of them.
While the cognoscenti may be able to meet the FilmTec rule in future contracts simply by copying the precise words blessed by the Federal Circuit, the rule nonetheless remains a technical drafting trap for the unwary.
“Though no one would ever think of using the term honor violence (we reserve that descriptor for brown people who live somewhere else, motivated by religious...”