Redundancy: when Law Repeats Itself
Abstract: The idea that law should generally be understood or designed to minimize redundancy informs much legal reasoning and design. Courts invoke forms of anti-redundancy in constitutional law, patent law, statutory interpretation, and the reading of contracts. But despite frequent invocation of anti-redundancy principles, redundancy seems continually to appear, whether in the form of apparently superfluous language in a legal document or in the form of at least partial overlaps in the domains of different doctrines, institutions, or procedures. In some areas, especially with respect to certain procedural and institutional arrangements, redundancy appears to have been actively embraced. But at least in terms of conventional legal rhetoric, anti-redundancy seems more commonly to hold sway. This article examines the general phenomena of redundancy and anti-redundancy and gives particular attention to their deployment in patent law. The article suggests that anti-redundancy should commonly be no more than a factor, as opposed to a source of presumption, in the interpretation of legal documents. Further, the article concludes that, where law looks to mediate between competing social interests, anti-redundancy can have merit as a principle for doctrinal design. Even in such situations, however, concerns underlying anti-redundancy can commonly be satisfied through doctrinal design that secures two-way interests in predictability and accuracy while reserving a place for redundancy.
