March 04, 2004

Eldred v. Ashcroft: Larry Lessig (Unfairly) Bangs His Head Against the Wall

Eldred v. Ashcroft lawyer Larry Lessig bangs his head against the wall because he has concluded that he is a bad person because he did not persuade the Supreme Court to strike down the Sonny Bono copyright extension act, and release lots of stuff into the public domain:

Legal Affairs: My anger with the conservative [justices] quickly yielded to anger with myself. For I had let a view of the law that I liked interfere with my view of the law as it is.

Most lawyers and law professors have little patience for idealism about courts in general and this Supreme Court in particular. Most have a much more pragmatic view. As I read back over the transcript from that argument in October, I can see a hundred places where the answers could have taken the conversation in different directions, where the truth about the harm that this unchecked power will cause could have been made clear to this court. Kennedy in good faith wanted to be shown. I, idiotically, corrected his question. Souter in good faith wanted to be shown the First Amendment harms. I, like a math teacher, reframed the question to make the logical point. I had shown them how they could strike down this law of Congress if they wanted to. There were a hundred places where I could have helped them want to, yet my stubbornness, my refusal to give in, stopped me. I have stood before hundreds of audiences trying to persuade; I have used passion in that effort to persuade; but I refused to stand before this audience and try to persuade with the passion I had used elsewhere. It was not the basis on which a court should decide the issue.

Would it have been different if I had argued it differently? Would it have been different if Don Ayer had argued it? Or Charles Fried? Or Kathleen Sullivan?

The image that will always stick in my head comes from an editorial that ran in The New York Times. While the reaction to the Sonny Bono Act itself was almost unanimously negative, the reaction to the court's decision was mixed. The press coverage that attacked the decision did so because it left standing a silly and harmful law. That "grand experiment" that we call "the public domain" is over, the paper said. When I can make light of it, I think, "Honey, I shrunk the Constitution." But I can rarely make light of it. We had in our Constitution a commitment to free culture. In the case that I fathered, the Supreme Court effectively renounced that commitment. A better lawyer would have made them see differently.

Two justices--Breyer and Stevens--agreed with Lessig for various reasons. The opinion of the court, however, was written by Ruth Bader Ginsburg, whose view seems broadly consistent with that of her daughter, Columbia intellectual property professor Jane Ginsburg. Justice Ginsburg found Lessig's restriction of congressional power argument not worthy of note, and found his first amendment arguments unconvincing.

Lessig, however, had based his theory of the case on what he thought would be a principle appealing to the "Silent Five" who joined Ginsburg in her decision without writing a word, and who had joined together in Lopez v. United States to declare that the Congress's power to regulate commerce among the several states did not give it the power to ban the possession of guns near schools. Lessig thought that these five justices believed in the constitutional doctrine that Congress's enumerated powers were limited powers, and hence would eagerly join him in his claim that Congress's copyright power must be a limited power as well.

Silly Larry Lessig.

Congress used the (unlimited) copyright clause to grant big presents to media companies. Why should the Supreme Court disapprove? Rehnquist, Scalia, Thomas, and company did not become justices of the Supreme Court to keep Congress from giving big presents to media companies.

Congress, by contrast, used the (unlimited) commerce clause to enact the New Deal and Great Society. Indeed, the doctrine of the unlimited commerce clause was not good law until the middle of the Great Depression--when the Supreme Court, unwilling to watch the likely passage of a constitutional amendment giving Congress the power to regulate the national economy, decided that the commerce clause already gave the Congress that power. Rehnquist, Scalia, Thomas, and company did become justices of the Supreme Court to start the process of rolling back the New Deal and Great Society, and undoing the constitutional moment of 1937--the Switch in Time that Saved Nine--which turned the commerce clause into an unlimited grant of power to Congress. It's Congress's use of its commerce clause powers for New Deal and Great Society purposes that makes the (unlimited) commerce clause illegitimate, and worth chipping away it wherever stare decisis does not make that too hard to do.

Or, as Snowball might have put it: Interpreting the constitution to limit Congressional power to roll back the New Deal, good! Interpreting the constitution to limit Congressional power to reverse Congress's giving media companies a big present, bad!

The fact that none of the Silent Five felt themselves under any obligation to write something distinguishing Lopez from Eldred should tell Larry Lessig what he needs to hear: that he is not a bad person, and that neither Kathleen Sullivan, Daniel Webster, nor Edward Coke himself could have won Eldred v. Ashcroft. Lessig's article claims that the Silent Five were too dumb to recognize the issues on their own, and that he didn't lead them by the hand carefully enough. He's wrong. The Silent Five are not dumb.

Posted by DeLong at March 4, 2004 03:32 PM | TrackBack | | Other weblogs commenting on this post
Comments

Thank you Brad.

The Eldred V. Ashcroft case, more than any other, finally shattered for me any image of the Supremes as somehow apart from the shallow and craven nature of the rest of Washington. Bush V. Gore put a serious dent in this image, but Eldred sealed the deal. Here we were presented with a case which was perfectly tailored for the so-called enumerated powers viewpoint of the Silent Five. Lessig presented it beautifully.

The justices were well aware of Lessig's argument and understood it perfectly (didn't Lessig clerk for Scalia?), but did not wish to use their sacred enumerated powers viewpoint for anything except the commerce clause. The Copyright Clause is the only place in the constitution where the very peculiar wording reveals an actual specified limit. As such, the Copyright Clause is the perfect place to hang the enumerated powers hat, but they rejected it. Not to put a conservative in the presidency... they rejected it simply because they saw no value in striking down a law aimed at rewarding big business.

Eldred V. Ashcroft, even more than Bush V. Gore, convinced me that the Supremes really have no sacred principles. Much like the Mayberry Machiavelli's they recently installed.

Posted by: manyoso on March 4, 2004 03:58 PM

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Wow. Lessig's article is a gem. If the five silent supremes really did believe in constitutional limits on government, Eldred was an opportunity to say so. For those not familiar with the case, Akerloff and Arrow were joined by Buchanan, Coase, and Friedman in an amicus curiae brief filed on behalf of Eldred. Perhaps the silence stems from not having a good answer to those guys?

For more on this, see "What Bloomsday and the Girl Scouts have in common" at my site, which also points to other items of interest (the answer is intrusion into both celebrations of Joyce's Ullyses and the Scouts' campfire songs through copyright extensions).

This was a tragic case. In my own small way I share Lessig's depresion on this.

Posted by: Skip on March 4, 2004 04:37 PM

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i thought everyone knew the Supreme Court read the newspapers and counted the votes and, justice by justice, remembers who appointed whom. how anyone could take any case there after Bush v Gore and think that good government or precedent (they make precedent every day) would be the most important basis of decision is beyond me. what is hard to realize is that even when they vote contrary to the best interest of the country, they think they have principles. even on Air Force Two they think they are independent of the White House. Call it self-delusion, call it anything you like, but don't ignore it.

Posted by: rod on March 4, 2004 04:43 PM

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What manyoso said. My view of the Supreme Court is altered forever.
In my opinion, the clause about "To promote the progress of science and useful arts, by securing for limited times to authors..." is enough to outlaw copyright extensions.
Justice Steven's dissent made all the points I would have wanted to see made. After reading it I re-read the majority opinion to see how the deal with his arguements. The majority simply ignored them.
I have often wondered what it was worth to them...

Posted by: Depressed on March 4, 2004 05:12 PM

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It was Squealer, Brad -- not Snowball. Snowball was the comparatively idealistic Trotsky-style hog who got run out of Animal Farm by Napoleon.

Posted by: Bruce Moomaw on March 4, 2004 05:36 PM

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Gee, cynical much?

Posted by: ItAintEazy on March 4, 2004 05:37 PM

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I think their issue with the unlimited commerce clause is that, given its current expansive interpretation it makes many of the other powers enumerated in the constitution superfluous and they think "why would they put them in there if its all covered under the commerce clause." The copyright clause, on the other hand, merely says "limited times" and less than forever is limited.

Posted by: Ugh on March 4, 2004 06:11 PM

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What an idiotic argument. The reason that the "Silent Five" object to unlimited commerce clause powers while accepting Congress' power to set copyright law is that the former is not in the Constitution and the latter is. It ain't a hard concept.

As Scalia et al have made clear on numerous occasions, the job of justices is to interpret what the law says, not to invent the law as they might like to see it.

Posted by: gopower on March 4, 2004 07:09 PM

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Great post, Brad. A tragic decision, not only in the particulars, but also in a loss of respect for the court and Constitution.

There have been others, but this one, Bush v Gore, and Campaign Finance really hurt.

Posted by: bob mcmanus on March 4, 2004 07:10 PM

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Justice Scalia has denied that there are problems with his two recent hunting trips paid for by people with cases coming before the court. (His precise response: "Quack quack"*.)

As far as I know, Supreme Court justices are invulnerable to challenge except impeachment by Congress, and with the Delay-Lott Congress we still have, impeachment is unthinkable. Thus Scalia is invulnerable and knows it, and is acting accordingly.

I don't have citations, but my bet is that the authors of the constitution recognized that there are certain critical points of vulnerability in the system of checks and balances, and that Supreme Court Justices are among them. I would also imagine that over the years, quite a bit has been written about the system's dependence on having individuals of a high ethical standard located at these critical positions.

Like most people who call themselves conservatives, however, Scalia seems entirely indifferent to conflict-of-interest considerations. Where the founders presumably hoped that people in these positions would discipline themselves, Scalia seems to have decided that since there are almost no legal restrictions on his behavior, that means that he can do anything he can damn well please.

This feeling of sovereign and invulnerable entitlement, rather reminiscent of that of a feudal lord or a Saudi prince, is widely felt among the captains of industry and the political leaders of what is called conservativism. Many of them recognize no limits to their actions except the letter of the law, and often enough they feel justified in ignoring the law too if it cramps their style -- "Trust us!" is their motto.

If you're wondering who I'm talking about, Scalia's hunting partner Dick Cheney would be a pretty good example. As well as the Idiot King inposed on us in the year 2000 by Scalia and four of his friends.

http://www.commondreams.org/views04/0217-04.htm

Posted by: zizka / John Emerson on March 4, 2004 07:16 PM

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"What an idiotic argument. The reason that the "Silent Five" object to unlimited commerce clause powers while accepting Congress' power to set copyright law is that the former is not in the Constitution and the latter is. It ain't a hard concept."

gopower, the copyright clause is quite clear on the Congress's power to grant copyrights: they must be granted for limited times. While intelligent people can argue over the subtleties of "interstate commerce", ain't nobody gonna tell me that the power to grant unlimited copyright extensions meets the definition of "limited times".

If you're going to start limiting the powers of Congress, you really want to do it in an area that has a very explicit Constitutional requirement.

Posted by: mattice on March 4, 2004 07:32 PM

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For me, the end of trust was the States' Rights cases, like Alden v. Maine, which held that under the Eleventh Amendment, Maine is not bound by the Fair Labor Standards Act, and cannot be forced to pay overtime to its workers, either in federal or its own state courts. Sovereign Immunity, a court-invented doctrine of little meaning in a republic whose Constitution does not use the term Sovereign still applies. So, we have to respect the powers of the states as sovereign, like an English King of the Eighteenth Century, except when we do not want to, like in election contests.

Posted by: masaccio on March 4, 2004 08:02 PM

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I think I respectfully disagree with Brad on this one. I don't doubt that a few of the justices can be accurately characterized as "Snowball" characterized them, but I think that (after reading Lessig's article) Lessig is closer to the truth than Brad. That is to say, there are a lot of pragmatists on this court, and a winning argument would have been a pragmatic argument, not a technical argument.

I think I also should mention that in spite of Lessig's self-confessed poor judgment in this case, it is still more likely that he—an attorney, Constitutional scholar, and someone who actually shaped and argued this case—and not DeLong, best understands where he erred and how the case may have otherwise been won.

This is a court balanced between ideologues and pragmatists, and a few who waver. The ideologues are politically and culturally conservative and they should have been expected to favor what they see as *property rights*. And the pragmatists could be won over only by a pragmatic argument, which Lessig was urged by colleagues to provide.

The truth about this court is neither Lessig's former legal idealism nor Brad's deep political cynicism. It is that these justices, as were those before them, are both political and intellectual creatures and a successful argument must safely navigate both waters. Allow me to repeat: the conservative justices saw this as a case about *property rights*, not enumeration of powers. Were they wrong to see it this way? That's beside the point. Lessig crafted the worst good argument possible for this court.

Posted by: Keith M Ellis on March 4, 2004 10:21 PM

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From abroad, the case looks different and not so disastrous. For the majority decided on the basis of a narrow interpetation of the US Constitution, not transferable to other jurisdictions; while the minority used powerful arguments of common sense and public interest that resonate strongly with anyone who cares about such principles.

Posted by: James on March 5, 2004 12:39 AM

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Brad, I love your blog and I respect you as an economist, but I think you should be careful when simplifying the conservative justice's legal positions. As far as I know, your constitutional legal training is limited.

(I'm not arguing that you not have an opinion, any more than you would argue that I shouldn't have an opinion on, say, Krugman's economics - just that a little more humility might be appropriate for both of us).

In my opinion, Lopez and Eldred were very different cases. Lopez was about the argument that the power to "regulate commerce among the several states" included the power to outlaw the possession of guns near schools, on the reasoning that guns lead to crime, which lowers property values, which might affect interstate commerce.

Eldred, on the other hand, was about whether Congress had the latitude to increase retroactively a copyright term for a specific period of time, pursuant to a constitutional term allowing Congress to fix copyright terms.

Lessig's argument is that the Eldred principle theoretically might allow Congress to grant unlimited copyright terms. The logical answer is that when Congress tries to extend copyright to 400 years, or infinity, the Court can determine then whether Congress has gone too far. Lopez, by contrast, already was too far.

Posted by: J Mann on March 5, 2004 06:49 AM

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J Mann - any retroactive increase is too far. As is spelled out in the Constitution, the whole reason to give Congress this power is "[t]o promote the progress of science and useful arts"

How does giving someone a big fat check after the fact(we're not even talking about the person who created this thing, it's generally a distant relative or some company that bought rights to it) help progress science & art?

What is IMO the best argument about this whole issue is the fact that Disney can take stories written by other people 100+ years ago, and add to them and put them into a nice cartoon and make lots of kids happy. That is why we have copyright terms end.

And yet no one will ever be able to take anything Disney has ever made and modify and expand on it again.

Posted by: crayz on March 5, 2004 08:52 AM

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Much as I disliked the copyright extension act, I never saw how the Supremes could have come out any other way. (Justice Breyer's dissenting opinion, most of which I agree with, would have been unanswerable if it were Senator Breyer's speech in opposition to the bill, but it made no sense as a judicial product.) Given that there is no principled way to say that 17 years or 28 years or 28 years plus a 28 year renewal is "limited" and any other number isn't, there was no way to say that any particular number is invalid. Given that with every copyright term revision, existing copyrights had always been extended, it would have been hard to say why this retroactive extension was invalid and the others weren't and impractical to revoke any still-subsisting extensions under the old law. You can't strike down a statute just because it's a bad idea.
One consolation: the law has a fetish about such things as 99-year leases and the like where perpetual rights are not allowed. It may not be much more than superstition, but copyright extension has probably now reached its practical limit.

Posted by: C.J.Colucci on March 5, 2004 09:28 AM

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It's simple if you understand legal reasoning. In practice, "limited" means "unlimited". Does anyone think that Disney will ever give up Mickey Mouse?

Posted by: zizka / John Emerson on March 5, 2004 10:59 AM

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“Given that there is no principled way to say that 17 years or 28 years or 28 years plus a 28 year renewal is "limited" and any other number isn't, there was no way to say that any particular number is invalid.”

C.J. Colucci: My understanding is that the amicus brief filed by the seven Nobel laureate economists addressed this point. Using standard time-value of money calculations, they determined that the present value of royalties earned 70 years out was zero. They argued that, because the present value of those royalties was zero, the royalties provided no rational economic incentive to encourage ‘the useful arts’ and thus exceeded the Constitution limitation.

I understand that one of them refused to let the lawyers remove the phrase “no brainer” from the brief.

Posted by: Rod Hoffman on March 5, 2004 02:36 PM

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Rod:
They addressed the point by showing that a term of more than 70 years was dumb. And they were right. But Congress has a right to be dumb.

Posted by: C.J.Colucci on March 5, 2004 06:32 PM

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Daniel Patrick Moynihan on the subject of his Cardnal's authority: "The Cardinal is never wrong. He is, however, frequently ill-advised."

Posted by: David Lloyd-Jones on March 6, 2004 06:44 AM

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And then there are some useful Jewish traditions:

1.) Any rabbi's dictum loses its effect after a thousand years.

2.) So and so is of course correct, but it is only in effect when the Temple is in existence.

3.) Such and such is quite right, but only applies in the presence of the Messiah.

Naturally there are exceptions to the three rules above...

Posted by: David Lloyd-Jones on March 6, 2004 06:48 AM

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Wow, someone with the guts to attribute to malice what could be possibly explained by incompetence. How refreshing, given the prevailing net biases.

Posted by: Martin Bento on March 7, 2004 01:48 AM

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I am a hobo in the house of the lord.

Posted by: Enriquez Brandon on March 17, 2004 07:25 PM

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It does not matter how slowly you go, so long as you do not stop.

Posted by: Finstrom Lisa on May 2, 2004 01:27 PM

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Everyone is born with genius, but most people only keep it a few minutes.

Posted by: Blinn Anne Isacowitz on May 3, 2004 12:54 AM

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The fear of death is the beginning of slavery.

Posted by: Anderson Christopher on May 20, 2004 03:50 AM

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It is predictible that a liberal like you Brad would say something so incredibly idiotic. Using the commerce clause to regulate anything but trade between states is a violation of the constitution. Civil rights are not trade.
Violence against women is not trade. Minimum wages are not trade. Crime is not trade. Drugs are not trade. Bringing guns to school is not trade.

On the other hand extending copyrights does have something to do with copyrights. That's what conservatives mean by common sense. Liberals like to destroy rules, laws, constititions, science and any other institution in order to achieve their desired ends. That is why they indulge in such ridiculous arguments.

Plus if commerce clause powers allow you to prevent a farmer from feeding his own grain to his own cattle then surely they allow you to create copyrights that last forever. So you don't even need the copyright clause of the constitution to enact unlimited copyrights, you just need the commerce clause. This is based on the idiotic decisions of liberal justices.

Posted by: assman on June 1, 2004 04:09 PM

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It is predictible that a liberal like you Brad would say something so incredibly idiotic. Using the commerce clause to regulate anything but trade between states is a violation of the constitution. Civil rights are not trade.
Violence against women is not trade. Minimum wages are not trade. Crime is not trade. Drugs are not trade. Bringing guns to school is not trade.

On the other hand extending copyrights does have something to do with copyrights. That's what conservatives mean by common sense. Liberals like to destroy rules, laws, constititions, science and any other institution in order to achieve their desired ends. That is why they indulge in such ridiculous arguments.

Plus if commerce clause powers allow you to prevent a farmer from feeding his own grain to his own cattle then surely they allow you to create copyrights that last forever. So you don't even need the copyright clause of the constitution to enact unlimited copyrights, you just need the commerce clause. This is based on the idiotic decisions of liberal justices.

Posted by: assman on June 1, 2004 04:09 PM

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It is predictible that a liberal like you Brad would say something so incredibly idiotic. Using the commerce clause to regulate anything but trade between states is a violation of the constitution. Civil rights are not trade.
Violence against women is not trade. Minimum wages are not trade. Crime is not trade. Drugs are not trade. Bringing guns to school is not trade.

On the other hand extending copyrights does have something to do with copyrights. That's what conservatives mean by common sense. Liberals like to destroy rules, laws, constititions, science and any other institution in order to achieve their desired ends. That is why they indulge in such ridiculous arguments.

Plus if commerce clause powers allow you to prevent a farmer from feeding his own grain to his own cattle then surely they allow you to create copyrights that last forever. So you don't even need the copyright clause of the constitution to enact unlimited copyrights, you just need the commerce clause. This is based on the idiotic decisions of liberal justices.

Posted by: assman on June 1, 2004 04:09 PM

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It is predictible that a liberal like you Brad would say something so incredibly idiotic. Using the commerce clause to regulate anything but trade between states is a violation of the constitution. Civil rights are not trade.
Violence against women is not trade. Minimum wages are not trade. Crime is not trade. Drugs are not trade. Bringing guns to school is not trade.

On the other hand extending copyrights does have something to do with copyrights. That's what conservatives mean by common sense. Liberals like to destroy rules, laws, constititions, science and any other institution in order to achieve their desired ends. That is why they indulge in such ridiculous arguments.

Plus if commerce clause powers allow you to prevent a farmer from feeding his own grain to his own cattle then surely they allow you to create copyrights that last forever. So you don't even need the copyright clause of the constitution to enact unlimited copyrights, you just need the commerce clause. This is based on the idiotic decisions of liberal justices.

Posted by: assman on June 1, 2004 04:09 PM

____

It is predictible that a liberal like you Brad would say something so incredibly idiotic. Using the commerce clause to regulate anything but trade between states is a violation of the constitution. Civil rights are not trade.
Violence against women is not trade. Minimum wages are not trade. Crime is not trade. Drugs are not trade. Bringing guns to school is not trade.

On the other hand extending copyrights does have something to do with copyrights. That's what conservatives mean by common sense. Liberals like to destroy rules, laws, constititions, science and any other institution in order to achieve their desired ends. That is why they indulge in such ridiculous arguments.

Plus if commerce clause powers allow you to prevent a farmer from feeding his own grain to his own cattle then surely they allow you to create copyrights that last forever. So you don't even need the copyright clause of the constitution to enact unlimited copyrights, you just need the commerce clause. This is based on the idiotic decisions of liberal justices.

Posted by: assman on June 1, 2004 04:10 PM

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Suits and religions rupture if you force them on.

Posted by: Davidson Jean on June 2, 2004 10:03 PM

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What's on your mind, if you will allow the overstatement?

Posted by: Gartner Elana on June 30, 2004 06:11 AM

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