Lawrencius Lessigicus: It is the middle of the night. Sleep is awol, scared off by this question that won’t stop pestering me: Is there a principle here? Is there a way to read these opinions as consistent with a principle?
Some background. There is a single, central question that has divided this Court over the past decade: Is it the Court’s role to review and constrain Congress in the exercise of its enumerated power. Four justices have been generally strongly in favor of deference. Five justices have insisted on limits. These five have insisted that an interpretation of Congress’s enumerated powers that erases any effective limit to that enumerated power is wrong. Four justices have consistently rejected that argument. Not that these four don’t vote to strike down laws of Congress. But rather they don’t strike laws of Congress on the ground of this “principle of enumeration.”
The single most important strategic decision in this case, and a decision for which I am solely responsible, was the decision to focus upon just this division. When we brought this case, people were rightly skeptical that the court would embrace an argument grounded in the First Amendment alone. Nor, given the Court’s general and appropriate deference to Congress, was it likely that a straight attack on the “rationality” of the statute would succeed. So our aim was to say, as Judge Sentelle argued in his dissent in the Court of Appeals: Under the enumeration principle announced in Lopez , and Morrison , retroactive extensions of existing terms violates “limited times.” If Congress has the power to extend a limited term without limit, then that is not a limited term.
The primary target of our appeal was therefore the five justices who had endorsed this principle: Rehnquist, O’Connor, Scalia, Kennedy, Thomas. And in addition to these five, we had hoped that the general extremism of the extension (and pattern of the extensions) would attract the votes of some of the remaining four. But the least likely justice to be persuaded by our case was Justice Ginsburg, and second, Justice Souter....
But constitutional law did not end in 1990. Instead, beginning with the Lopez case, and then confirmed in Morrison, Chief Justice Rehnquist articulated a different way of thinking about enumerated powers. The question was no longer simply rational basis. The question was now also, is there a stopping point. Does a particular interpretation of Congress’s enumerated power yield the conclusion that its power is unlimited. If it does, then that interpretation must be rejected. The context of those cases was the Commerce Power. But there was nothing in the opinions, or in logic, that would explain why the principle would apply to the commerce power and not elsewhere. Indeed, this was the strongest argument made by the dissents against the principle: That it would entail a general limitation on Congress’s power that was totally new in constitutional law....
No one wants to be proven wrong. But the sole reason that I believed that we were right, and that we would prevail, was this principle of enumeration. And despite the skepticism expressed at the oral argument, I could not begin to imagine how these 5 could distinguish that principle in this case. If we were going to lose, it was going to be, I thought, because they would find a way to distinguish what I believed they could not in good faith distinguish.
I was wrong, but not in the way I believed. Astonishingly, the silent 5 escaped this argument simply by ignoring it. Justice Ginsburg could understandably ignore it — she has never been a supporter of that argument. The same with Justices Stevens and Breyer — they too have never been supporters. But I would never have thought that the Court would decide the case by ignoring the only argument made in dissent by a federal judge below, and the core argument made by the petitioners in this case. Thus as I have said over and over again, I don’t know how you distinguish the Copyright Clause from Commerce. I still don’t. I just know we lost....
I have spent more than a decade of my life teaching constitutional law—and teaching it in a particularly unfashionable way. As any of my students will attest, my aim is always to say that we should try to understand what the court does in a consistently principled way. We should learn to read what the court does, not as the actions of politicians, but as people who are applying the law as principle, in as principled a manner as they can. There are exceptions, no doubt. And especially in times of crisis, one must expect mistakes. But as OJ’s trial is not a measure of the jury system, Bush v. Gore is not a measure of the Supreme Court. It is the ordinary case one needs to explain. And explain it as a matter of principle.
I’m not sure how to do that here. I don’t see what the argument is that would show why it is the Court’s role to police Congress’s power to protect states, but not to protect the public domain. I don’t see the argument, and none of the five made it. Nor have any of the advocates on the other side identified what that principle is.
One friend offered a reason in an email of condolence. Those 5, he said, save their activism for issues they think important. They apply their principle to causes they think important. Protecting states is a cause they think important. Protecting the public domain is not.
By what right? By what g.d. right? These five justices have all the right in the world to have their own principled way of interpreting the constitution. Long before this case, I had written many many pages trying to explain the principle I thought inherent in the decisions of these five justices. I have spent many hours insisting on the same to ever-skeptical students. But by what right do these 5 get to pick and choose the parts of the constitution to which their principles will apply?
This sounds so amazingly naive, I know. But I have spent my career staring down the charge of naive, insisting on something more. Think the poster on the X-Files — “I want to believe” — but with the Supreme Court, not UFOs, in the background. Yet here I am, more than a decade into my job, just where most of my professors insisted I should have been more than a decade ago.
Realisticus: The principle that Lessig is searching for to explain his loss in Eldred v. Ashcroft is very simple. A "strict constructionist" is not someone who construes the Constitution strictly to make our government one of limited powers. A "strict constructionist" is--as Rehnquist wrote back at the 1970s--somebody who is hostile to civil rights plaintiffs and hostile to criminal defendants. The point of saying that the Commerce Clause is only a limited grant of power to Congress is to roll back first the Great Society and then the New Deal. The Principle of Enumeration is not a broad principle of constitutional interpretation, but a narrow weapon to be used in political struggle. There is no similar point to saying that the Copyright Clause is a limited grant of power. So why bother to say it?
Why is this so hard for Larry Lessig to understand?
Professorius: "Why is it so hard for Lessig to understand that the Court is lawless?" Let me propose an answer:
First, it's a lawyer's occupational hazard to want to believe that we operate in a world or more or less predictable rules, not a random game of power and rhetoric. Maybe it's worse for a law professor, who has to teach a more or less coherent doctrine. I and most of the other lawyers I knew were genuinely shocked by Bush v. Gore, not merely outraged at the result.
Second, because at the lower court level, at least in the federal courts, mostly judges do follow the law. They don't always understand it, but when they do they try to follow it.
Third, this is an usually lawless Court. We have not seen its likes since the bad old days of the Lochner Court. We lawyers have been raised by the likes of Lessig with the following story. Once upon a time there was a Bad Court composed of justices who believed taht the due process of the constitution mean they could impose their prejudice of laissez faire economics to override social and economic legislation implemented by the legislature. They sat for a long time, and Justice Holmes gave them what-for, but they didn't listen.
But Lo! In the middle of the Great Depression, one of the Bad justices saw the light, and the Court realized that except where fundamental rights expressly stated in the constitution, or the oppression of the discrete and insural minorities, the legislature got to make the law. And so the Bad Old Lochner Court went down in disgrace, and ever since, Courts have confined constitutional lawmaking to defending individual rights and oppressed minorities, while letting the legislature happily pack its barrel full of pork. And everyone lived happily ever after.
However, with the Rehnquist Court, we have Five who think that they can see that the New Deal Court got it wrong, and now they are back in biz, not using the same tools (the 11th Amendment is more favored than the Due Process clause), but up to the same old tricks. This upsets the story, and Lessig, and me.
Insidebaseballerius: None of the previous speakers understand the internal interpersonal dynamics of the Court. This decision was driven by two factors: (i) Justice Ginsburg has a daughter, and (ii) after Bush v. Gore Chief Justice Rehnquist desperately needs to do everything he can to reestablish comity within the Court.
Ruth Bader Ginsburg has a professor daughter who strongly believes in intellectual property protection. Ruth Bader Ginsburg loves her daughter, and believes that her daughter is smart enough to have correctly assessed the situation in her area of expertise. Therefore Ruth Bader Ginsburg very strongly believes that Eldred and company deserved to lose.
Rehnquist needs to have a Court--rather than a civil war. Bush v. Gore came very close to permanently and profoundly alienating Ginsburg and company. Therefore wherever Rehnquist can defer to Ginsburg and company and make them happy on issues they care dearly about, he will seriously think about doing so.
Therefore--because Ginsburg cares most about this case--she gets to write the opinion. And because Rehnquist desperately wants to make some harmony, he and his faction fall into line.
It's very simple, once you know the details of the inside game...
Posted by DeLong at January 18, 2003 08:15 AM | TrackbackOr the simplest explanation, which is that the law compelled the result in the case, as much as it ever does, though perhaps a better advocate than Lessig could have made it a closer case.
Lessig's primary problems relate from the fact that he doesn't respect the court and doesn't understand their jurisprudence well enough to tie his cause to it.
Posted by: Thomas on January 18, 2003 10:46 AMwould you care to, you know, actually explain this statement?
Posted by: mark on January 18, 2003 10:59 AMI have just finished reading "Master of the Senate", the 1950's segment of Robert Caro's biography of Lyndon Johnson. It contains many powerful reminders of the unsavory uses to which the issue of federalism, nee "state's rights", has been conscripted more or less continuously throughout our history. The issues have changed and many crucial battles have been won in the last half century. The issues now are less intensely racial and more those identified by Realisticus, but the connection is inescapable. It may be true that an idea is not responsible for the people who believe in it, but it would be hard to find another idea that has a greater guilt-by-association problem.
Posted by: Ken Doran on January 18, 2003 11:16 AMI have just finished reading "Master of the Senate", the 1950's segment of Robert Caro's biography of Lyndon Johnson. It contains many powerful reminders of the unsavory uses to which the issue of federalism, nee "state's rights", has been conscripted more or less continuously throughout our history. The issues have changed and many crucial battles have been won in the last half century. The issues now are less intensely racial and more those identified by Realisticus, but the connection is inescapable. It may be true that an idea is not responsible for the people who believe in it, but it would be hard to find another idea that has a greater guilt-by-association problem.
Posted by: Ken Doran on January 18, 2003 11:17 AMI have just finished reading "Master of the Senate", the 1950's segment of Robert Caro's biography of Lyndon Johnson. It contains many powerful reminders of the unsavory uses to which the issue of federalism, nee "state's rights", has been conscripted more or less continuously throughout our history. The issues have changed and many crucial battles have been won in the last half century. The issues now are less intensely racial and more those identified by Realisticus, but the connection is inescapable. It may be true that an idea is not responsible for the people who believe in it, but it would be hard to find another idea that has a greater guilt-by-association problem.
Posted by: Ken Doran on January 18, 2003 11:18 AMbecause Ginsburg cares most about this case--she gets to write the opinion. And because Rehnquist desperately wants to make some harmony, he and his faction fall into line.
It is comforting to know that the highest court in the land is run more or less along the same lines as a High School prom committee.
Well, on the law, Lessig's primary problem was an uninterrupted history of amendments to copyright law, which seem to be parallel to the latest. Lessig, so far as I can tell, didn't think it necessary to spend much time explaining that away, which he would have done if he were a better advocate and if he had enough respect for the court to actually attempt to understand its prior decisions. Instead he has since October been pressing all sorts of rather bizarre insinuations about 5 particular justices, including the suggestion that the only reason one of the 5 would vote against him would be for an ugly reason. A very unimpressive performance by a man I had thought much better of.
Posted by: Thomas on January 18, 2003 12:00 PMI would like to see Thomas explain his comment. The Constitution says this power is for limited lengths of time and is to encourage the production of new ideas. There is no possible argument that the production of new ideas is encouraged by the most recent extension. If you think the Constitution constrains Congress in realistic ways, how can you conclude that Congress is not constrained in this way? This is Lessig's argument and the court didn't even address it.
Posted by: Steve Berry on January 18, 2003 12:05 PMIsn't it possible that the Lessig/Sentelle argument that "retroactive" application automatically violates "limited times" is simply wrong?
The Court arguments that:
(1)the original 1790 Act applied retroactively to existing works, and (2) patents are governed by the same "limited time" legal principle and patents have frequently been extended,
seem compelling to me, and I think that the overall decision stinks . . . . . .
I know nothing of Professor Lessig, and I'm not a lawyer, but it looks to me like he's lost perspective on his strategic decision to emphasize this argument so strongly. To a layman, the rationale has "limited" or no appeal.
Posted by: Anarchus on January 18, 2003 12:24 PMI'm a complete layman. But it looks to me as though Lessig's argument isn't that everyone should subscribe to his argument about limited terms. It's that anyone who subscribes to a restrictive interpretation of the Commerce clause should subscribe to a restrictive interpretation of the Copyright clause. Or at least, such a person should explain the relevant differences between commerce and copyright.
So, for instance, a history of amendments to copyright law doesn't provide cover to anyone who's voted to overturn a bunch of lawson grounds that they overstep the powers provided in the commerce clause. Why overturn one law and not the other? Lessig doesn't think the question need be unanswerable, but he would like an answer.
That's why, of the seven Justices who voted against him, Lessig only criticizes the five who hold to a narrow interpretation of Commerce and a broad interpretation of Copyright. They haven't expressed the principle by which they're judging.
(And, Inside Baseballicus, would it have killed them to write a concurring opinion?)
Posted by: Matt Weiner on January 18, 2003 12:56 PMWell, the obvious difference is that the history of the clauses is different. If Lessig spent some time trying to explain that history in a compelling way, well, this could have been a different story.
Posted by: Thomas on January 18, 2003 02:01 PMI can't say whether it's bad law - but I'm next to certain it's bad policy. I also know who it rewards.
Posted by: Ian Welsh on January 18, 2003 03:06 PMA comment on the principled Lessig figure above in Prof. DeLong's dialogue: I took Contracts from Lessig some years ago, and while he was certainly at least as principled as most lawyers/law professors, it would be a mistake to suggest that he is unaware that the Supreme Court sometimes acts in a not particularly principled way. I remember him recounting a story from his time clerking for Scalia in which Rehnquist tried to distinguish a case to Scalia by pointing out that it involved big railroads -- hardly a principled basis for distinction. Lessig may be principled, but he is not naive.
Posted by: RPM, Esq. on January 18, 2003 04:12 PMRehnquist needs to have a Court--rather than a civil war.
I don't think Rehnquists cares whether or not his court ever comes together or not.
I believe it was Justice Kennedy in an interview not long after the decision of Bush v. Gore, who told a reporter that the 5/4 splits were good for us (American citizens). And this Rehnquist Court has had a lot of 5/4 splits.
Bush v Gore damaged the court severely but Rehnquist doesn't care to put it back and even if he did there isn’t anyway to heal the court or the people’s faith in it at this point.
Some actions once done cannot undone.
There are 3000 people dead, two beautiful architectural accomplishments that use to grace the New York skyline completely gone now, a massive economic slump with no real attempt at business reform and an unjust war looming on the horizon.
How Rehnquist can ask for a raise or publicly announce that he wouldn’t step down unless a Republican was in office shows that he really isn’t interested in what “ We, The People” think.
Rehnquist and Thomas should be impeached on the grounds that they perjured themselves during their confirmation proceedings.
Oh, OK, Stephen. That solves everything!
Posted by: Paul on January 19, 2003 10:33 AM>> Isn't it possible that the Lessig/Sentelle argument that "retroactive" application automatically violates "limited times" is simply wrong? <<
Well, being that 10 of 13 judges to review the case said so, a reasonable person would obviously have to think that it's possible.
But then one would also have to think it's possible that the final judgment wasn't the result of all those judges at three different levels of the court system playing an "inside game". Which doesn't seem a very popular possibility to consider around these parts, for some reason. ;-)
When one's side loses a contest it's of course much easier to jump to the "fraud!" charge -- like in those prepared headlines in Citizen Kane -- than to deal with the merits of why, say, one's arguments couldn't convince any more than 3 of 13 judges if they were so darn strong, and cope with the notion that one might actually just have had a *weak case*.
[Even if that 'why' has been explained in detail three times by the 10 judges, and many times over by the great majority of expert commentators (outside of one's own small circle of friends) who were surprised to see the case even get this far.]
But that kind of denial, believing one's own propaganda, is never very productive if one wants to win next time.
Anyhow, I don't know who all those judges were supposed to be actually playing "inside" with. Is there an allegation that they are all going to be getting free passes to Disney World now?
>> I can't say whether it's bad law - but I'm next to certain it's bad policy. I also know who it rewards. <<
The Supreme Court doesn't review law on the basis of whether it is bad law or bad policy, but on the basis of constitutionality. Congress is perfectly free to enact bad laws and bad policies and does so relentlessly.
Also relevant here is perspective -- in the big scheme of things this is minor law and minor policy, good or bad. Even Eldred's arguments said 99% of the value of 70+ year old copyrights has already been extracted.
That being so, it's remarkable how upset some people get about what they take to be the abuse of economic principles here -- when the effect on the economy and the commonweal will be trivial to zero compared to other issues and cases that draw far less attention here.
E.g, the Supreme Court's _Zalman_ decision of six months ago arguably could have over time, oh, a million times more economic impact in terms of dollars and cents and economic welfare. And if one wants to talk about vested interests lobbying to protect their government-granted monopolies at the expense of entrepreneurs and the public, it is a *vastly* greater example in every dimension.
So as the people who regularly attend here are so concerned with such economic issues, I'd have thought that would be the case to spur some interest. But using Google to search this web site and going back through the archives of the time I find nary a word. Go figure.
It's always interesting to see the priorities people show in choosing what to be very upset by. This lobbying by a self-interested monopolist to preserve its government protection greatly upsets me on basic economic principles -- and those principles show "who it rewards". But that much greater lobbying by a much bigger and more important self-interested monopolist to preserve its government protection doesn't bother me at all. No laments about special interests at work or "inside dealing" within the system, or long musing philosophical dialogues. In fact I'm rather sympathetic to the monopoly, so why ponder the principles at all -- why even mention it?
Thus, I guess what's so obviously so troubling in principle about government-granted monopolies isn't a matter of principle at all, but of selection. To me at least. Revealed preferences and such.
Posted by: Jim Glass on January 19, 2003 07:40 PMJim--Can you provide a link to something on Zalman? I don't want to make this a thread on Zalman, because that would give Prof. DeLong just cause to delete all my posts, but I don't know what monopoly is at issue.
99% of the monetary value of old copyrights may have been extracted, but that doesn't mean that there's no benefit to putting them in the public domain. I'm a big fan of some old jazz, blues, and country recordings. A lot of the best reissues come from an English company called JSP, which can put things out cheaply because the recordings at issue are out of copyright in the UK (I think). But it's not just cost--JSP CDs sound much better than reissues by Columbia or BMG, and are more consistently available. (Columbia has a complete set of Louis Armstrong's Hot Fives, but I don't know if any big label has a complete Jimmie Rodgers out--let alone a complete Cannon's Jug Stompers.)
So here, though copyright doesn't give much benefit to the owners, putting the stuff in the public domain gives considerable benefit to those of us who are interested.
Of course there aren't many such people, so on the scale of things the economic effect may not be large. I don't know--I think the benefit of having great art available is more than the benefit to people who actually buy it, but that's not an economic intuition.
Perhaps the Zalman case obviously dwarfs such considerations.
As for Lessig's complaints, I really think he's not saying that his argument is unanswerable, and that all 10 of the 13 judges are wrong. He's saying that rejection of his argument is in tension with other views held by 5 of those judges, and that he wishes they'd explain why. Thomas thinks that the history of the commerce and copyright clauses provides an obvious explanation--I just don't know. Do the expert commentators point out clear differences between copyright and commerce?
Posted by: Matt Weiner on January 19, 2003 10:10 PMWell Jim, we discuss more or less what Brad chooses, so if you've got a problem with that, take it up with him, not me. Personally I think intellectual property law is very important. Perhaps the specifics of this case aren't massively economically important, as you argue, however in general the movement to extend intellectual property rights not only in time, but to new areas where they weren't before (such as copyrighting life forms in various ways) is very significant.
The continued extension of this type of "property" is a way to lock down unearned income for as long as possible. Why do I say "unearned"? Because when you start pushing these time spans the people who did the work aren't around anymore.
Posted by: Ian Welsh on January 20, 2003 08:31 AMTo a layman, the linkage between restrictive views of Commerce versus restrictive views of Copyright are not nearly as clear as the linkage between Patent and Copyright.
And again from a layman's perspective, some of the recent attempts to extend Commerce (the Violence against Women Act comes to mind) seem much much further afield than this successful attempt to extend Copyright.
Anyway, I thought a large part of the economic value comes from the idea that lots of interesting and valuable new art is so closely derived from past art that it's very useful to society to have lots and lots of past art off copyright, because that generates considerably more opportunity for talented people to extend off the past creations without worrying that one in three of their words or music notes are the same . . . .
Posted by: Anarchus on January 20, 2003 08:55 AMAnarchus--That's a good point about freedom to make new art. I'm not sure that limiting copyright is the best way to work that, though. Jack Balkin talks about the case of "The Wind Done Gone," Alice Randall's version of "Gone With the Wind" from the slaves' standpoint, which got the publisher sued by the Margaret Mitchell estate. (I'm not sure on what terms the suit was settled--but if Randall had been using a small publisher, she would've had problems.)
Surely the problem here isn't the length of copyright, but the fact that a copyright owner can suppress a work that comments on it. It would've been great if someone had wrote "The Wind Done Gone" ten years after Mitchell published "Gone with the Wind," and no one thinks that copyright should expire that quickly.
If I could design the system, I'd make it so that copyright owners couldn't prohibit the publication of derivative works, such as "The Wind Done Gone" and records that sample other records, but they could collect a percentage of the sales. Percentage of the sales rather than flat fee, in order to avoid pricing small artists out of the market, yet to make sure that people are compensated fairly if a hit is based on their work. That'd mean artists could use older art without losing their shirts, or waiting unduly.
Of course, there are myriad problems with my system--starting with the fact that entertainment companies are good enough at creative accounting to get around my requirements. I'm sure, if anyone's still reading, that the economists can think of other flaws.
Posted by: Matt Weiner on January 20, 2003 05:27 PMI read the opinion in this case. Not being a lawyer, I could be way off in my interpretation. However, in his dissent Justice Stephens made all the points I wanted to see made (as well as some trenchent criticisms of the historical material on which the majority relied). I reviewed the Court's opinion to see how his arguments were answered. They weren't.
Lawrencius Lessigicus enscribed:
And especially in times of crisis, one must expect mistakes. But as OJ?s trial is not a measure of the jury system, Bush v. Gore is not a measure of the Supreme Court. It is the ordinary case one needs to explain.
This decision pushed me over the edge. I no longer agree with him; I think that this Court wants particular political results and dosen't care how it gets them. I found myself asking how much they were paid off. I'm ready to replace them with a dart-throwing monkey.
Posted by: on January 20, 2003 07:37 PMOh, Jim's case is Zelman, not Zalman, for reference: the vouchers thing. Google wasn't producing anything for "Zalman."
I do think this case was decided for ideological reasons; the majority opinion makes not a lick of sense in a strict constructionist framework.
Posted by: Jason McCullough on January 20, 2003 11:37 PMAt the risk of topic drift: Vouchers cases have to do with a government-granted monopoly? I haven't noticed the government shutting down private schools lately.
Posted by: Matt Weiner on January 21, 2003 06:48 AMAnother layperson here, I took the same feeling from the opinions given.
The majority decided to ignore the arguments given in order to further some political end. Well there goes the whole idea of an independant court.
About Bush v. Gore, what hurt about that case was not the decision (in my opinion it was made in good legal judgement), it is that they weasled out of making it a precedent, which would have invalidated a majority of elections nationwide. They were specific in order to ensure that "their guy" got in. This really was a lot point.
The problem is, the USSC may be developing a reputation where their decisions may not be trustworthy. This is a problem that may take a dozen steps towards the dissolution of society.
Posted by: Glenn on January 21, 2003 08:21 AMAnother layperson here, I took the same feeling from the opinions given.
The majority decided to ignore the arguments given in order to further some political end. Well there goes the whole idea of an independant court.
About Bush v. Gore, what hurt about that case was not the decision (in my opinion it was made in good legal judgement), it is that they weasled out of making it a precedent, which would have invalidated a majority of elections nationwide. They were specific in order to ensure that "their guy" got in. This really was a lot point.
The problem is, the USSC may be developing a reputation where their decisions may not be trustworthy. This is a problem that may take a dozen steps towards the dissolution of society.
Posted by: Glenn on January 21, 2003 08:22 AM