Synthesis

The ratio decidendi, then, substantively and extensively characterizes the ‘creative spark ... utterly lacking’ (Feist Publications, Inc. v. Rural Tel. Service

Co., Inc., 1991, p. 359). Five references within the ratio decidendi substantively characterize the level of creativity indicated by the earlier reference to the ‘creative spark ... utterly lacking’ (p. 359). Classically, this section of the judgment would be expected to rest on the principal distinctions previously established, in this instance, the requirement for independent creation and for a minimal degree of creativity, the existence of levels of creativity ‘utterly lacking or so trivial as to be virtually nonexistent’ (p. 359), and to bring these considerations to the issues under consideration, and this expectation is fulfilled. Some characterization is given of a specific instance of the possible absence of independent creation, although indirectly - ‘for another reason’ (p. 362) - but none for ‘the creative spark ... so trivial as to be virtually nonexistent’ (p. 359), consistent with the absence of any delineation of creativity within the decision. The extent of the delineation given of the creative spark utterly lacking, and the focus upon it, confirms is significance to the decision.

The passage as a whole consists of a consecutive sequence of connected paragraphs. It would be legitimate, based on the detectable structure, to regard the opening clause as strongly characterizing the absence of creativity, the intermediate passages as consistent and amplifying the initial themes, and the final sequence of clauses as a summative conclusion. A common rhetorical strategy for prose exposition consists of an indicative opening, which may be brief, but contains the kernel, and possibly the limits of what is to be expanded or developed; some intermediate observations; and a summative conclusion, fuller than the indicative opening, but without exceeding the initially established boundaries. The presence of a commonly used rhetorical structure is indicative of the cohesiveness of the delineation of creativity utterly lacking.

The significance to the decision of creativity utterly lacking compels, and the rhetorical cohesiveness of its presentation legitimates, the consideration of its delineation as a whole. A more concise, and, accordingly, more immediately intelligible, characterization of creativity utterly lacking can be constructed. Crucial descriptive clauses isolated can be recalled, in their entirety, with the distinctions between groups of clauses retained.

‘so mechanical or routine’

‘entirely typical ... end product ... garden-variety’

‘could not be more obvious ... the most basic information’

‘dictated by state law’

‘an age-old practice, firmly rooted in tradition and so commonplace that it has come to be expected as a matter of course ... practically inevitable ... time-honored tradition’

(Feist Publications, Inc. v. Rural Tel. Service Co., Inc., 1991, pp. 362-363)

Crucial terms within clauses were not specialized or technical, nor immediately amplified by citations to cases, statute law, or the Constitution or its interpretations, and could then be understood in their ordinary discourse meanings. The particular senses of terms could be elucidated from their immediate context, and where terms occurred elsewhere in the decision, this could be used as a further resource for explication. In all instances, the occurrence of terms within the crucial passages in central ordinary discourse senses was confirmed.

‘[S]o mechanical or routine’ (Feist Publications, Inc. v. Rural Tel. Service Co., Inc., 1991, p. 362) directly characterized ‘no creativity whatsoever’ (p. 362), opened the characterization, and was a general and comprehensive statement. Some priority was given to ‘mechanical’, by citing it first and with a qualifier directly conferring intensity upon it. The initial characterization as ‘so mechanical or routine’ applied to all of selection, coordination, and arrangement primarily as processes. The initial invocation of the ‘so mechanical or routine’ can be regarded as an encompassing statement that sets precise boundaries for the antithesis to creativity, but which still be further internally amplified or made fuller

The initial statement is then further developed.

• • ‘[E]ntirely typical ... end product ... garden-variety ... devoid of even the slightest trace of creativity’ (Feist Publications, Inc. v. Rural Tel. Service Co., Inc., 1991, p. 362) adds the complementary possibility of reading the absence of creativity from the product, directly refers to the selection, coordination, and arrangement of Rural’s directory, and invokes an antithesis to creativity consistent with the opening reference. The substantive terms of the delineation are cognate with the routine and not in tension or contradiction with the mechanical.
• • ‘[C]ould not be more obvious ... the most basic information ... insufficient creativity’ (pp. 362-363) are concerned with the selection, and not directly with the coordination and arrangement, of Rural’s white pages and with a complement to creativity, ‘insufficient creativity’ (p. 363), contiguous with the boundary with creativity. The substantive terms of the delineation are primarily concerned with processes and belonged to the routine, while being consistent with the proximity of the routine to the mechanical.
• • The clause, ‘dictated by state law’ (p. 363), could be understood as a single clause with differentiable aspects. ‘[Dictated’ directly amplified the ‘so mechanical’ and ‘state law’ the ‘routine’, while the clause as whole exemplified the ‘so mechanical or routine’ and could be connected with the subsequent reference to ‘nothing remotely creative’(p. 363).

The further clauses are then directly concerned with Rural’s directory and mold into the final general statement of‘nothing remotely creative’ (p. 373). They can then be understood as intermediate characterizations between the opening and the conclusion.

The final sequence - ‘an age-old practice, firmly rooted in tradition and so commonplace that it has come to be expected as a matter of course ... practically inevitable ... time-honored tradition’ (Feist Publications, Inc. v. Rural Tel. Service

Co., Inc., 1991, p. 363) - was concerned with the process of alphabetical arrangement and with an extreme antithesis to creativity, ‘nothing remotely creative’ (p. 363). It historicized the routine. The historical resonance of the conclusion exposed the earlier sequence of clauses, from ‘entirely typical’ to ‘most basic information’, as a contemporary amplification of the routine. The routine, in its ordinary or not immediately historical sense, also mediated between the mechanical and the routine.

The delineation of the ‘creative spark ... utterly lacking’ (Feist Publications, Inc. v. Rural Tel. Service Co., Inc., 1991, p. 359) is, then, concerned with different levels of antithesis to creativity, all containable within creativity utterly lacking. The opening and dominant statement, ‘so mechanical or routine as to require no creativity whatsoever’ (p. 362), encompasses all levels of antithesis. The next is concern with the selection, coordination, and arrangement of Rural’s white pages and with a potentially similar range of antithesis to creativity, ‘devoid of even the slightest trace of creativity’ (p. 362). The concern then turns to selection alone by Rural and with a complement to creativity, ‘insufficient creativity’ (p. 362), cognate with the routine and contiguous to a boundary with creativity. Rural’s selection is then considered as ‘required ... as part of its monopoly franchise’ (p. 362), characterized as ‘dictated by state law’, and connectable with an extreme antithesis to creativity, ‘nothing remotely creative’ (p. 363). The final and concluding clauses were a general characterization of the process of alphabetization directly characterized as ‘nothing remotely creative’ (p. 363). The concern of the majority of the clauses was directly and implicitly with processes, while a single clause was explicitly concerned with the products of those processes. Subsequent clauses, then, amplified the initial characterization of the extreme absence of creativity as ‘so mechanical or routine’, without entering into tension or contradiction with the initial terms.

A formally logical account of creativity utterly lacking can now be synthesized, given verbally in this paragraph and paralleled by a sequence of logical statements and diagrammatic representation (see Figure 4.7). ‘[S]o mechanical or routine’ is dominant with OR as the preferred relation between the constituent terms. ‘[E]ntirely typical ... garden-variety’ are semantically cognate with the routine and qualify an ‘end product’, understandable as an AND relation. ‘[C]ould not be more obvious ... the most basic information’, primarily amplify the routine, and can be considered as a more informative species, included within the routine. ‘[Dictated by state law’ belongs to the conjunction of the so mechanical and routine, which can be expressed as material implication (understood to be equivalent to inclusion, for these purposes). ‘[A]ge-old practice ... time-honored tradition’ historicize the routine, and, for the purposes of a formal presentation, can be considered as includable within the scope of, so mechanical OR routine. All clauses, then, can be captured within a so mechanical OR routine process, with the exception of the explicit designation of an end product, which can be understood as in an AND relation to those processes.

Figure 4.7 Logical representation of the overall synthesis for creativity' utterly lacking

Figure 4.7 (continued)

A compilation has not the slightest trace of creativity if, and only if, it is constructed by a so mechanical or so ... routine process and is an entirely typical or garden-variety end product.

The formulation for the antithesis to creativity explicitly incorporates the meaning of the two related clauses, of ‘so mechanical or routine as to require no creativity whatsoever’ (p. 362) and of an ‘end product ... devoid of even the slightest trace of creativity’ (p. 363), and then applies, in the first instance, to those clauses, but should be consistent with the further clause, ‘nothing remotely creative’ (p. 363), from the potential subsuming of the meaning of its connected substantive terms within the scope of ‘so mechanical or routine’ (Feist Publications, Inc. v. Rural Tel. Service Co., Inc., 1991, p. 362). The qualification of a process by ‘so mechanical or routine’ {Feist Publications, Inc. v. Rural Tel. Service Co., Inc., 1991, p. 362) is raised to an explicit designation in the formulation, as, a so mechanical or routine process. The reading of the relation between the absence of creativity for compilations and the substantive terms of the characterization as, if, and only, if, is justified by the comprehensive capturing of all the delineated elements within the antithesis to creativity, within a set of references identified as exhaustive of creativity.