Category: Jurisprudence

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Intellectual Property Theory: An Homage and Reply

I am moved and honored by this deep engagement with my book by this amazing array of scholars. Let me reply to each that has chimed in so far, and seek to situate my work within the broader IP discourse at the same time.

What a difference a few years make! Professor Said, who is younger than I am, arrived on the IP scene more recently, and happily she found a more plural discourse than I saw several years back. In the first few years of the new century, scholars on both the Right and Left seemed unified in their commitment both to the incentives rationale and the ultimate goal–innovation. Scholars on the Left saw the incentives rationale as limiting IP rights, because they argued that intellectual property need not offer rights beyond those necessary to incentivize creation. They also argued that too many property rights might result in an anticommons and erode the public domain. Some public domain scholars—to whom my book is both homage and reply—worried that opening IP to alternative discourses such as human rights might bolster property owners’ arguments rather than limit them.

The public domain scholars opened a space for critique in a field that was “coming of age.” In my new book, From Goods to a Good Life: Intellectual Property and Global Justice (Yale University Press 2012), I seek to both consolidate and expand that critique. I argue that we need to rethink the ultimate goal of intellectual property itself. We should seek not simply to promote more goods, but rather the capability of people to live a good life. To that end, we need to ask new questions beyond just how much intellectual production law spurs, and turn to disciplines beyond law and economics for guidance. Which goods are being produced and which are neglected under market incentives? Even when goods are produced, like AIDS medicines, how can we ensure just access to these knowledge goods? Surely access to essential medicines for people who cannot afford them is important if we believe in the dignity of all human beings. But what about access to culture, such as films, music, and literature? I argue that participation in these cultural activities is just as important – singing and dancing together and sharing stories are activities central to our humanity. They promote learning, sociability, and mutual understanding.

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Adam Thierer on Classical Liberalism on the Net

As the political season is in full swing and folks claim to understand SOPA, PIPA, etc., I thought I should point people to Adam Theirer’s post Mueller’s Networks and States = Classical Liberalism for the Information Age. I knew Adam a little before my stint at Google. I came to know him more while there. I do not agree with everything Adam says. Rather, he reminds me of folks I knew in law school. I disagreed with many people there, but respected the way they argued. Their points made me rethink mine and perhaps improve them. The distinction between cyber-libertarianism and Internet exceptionalism that Berin Szoka and Adam try to make is important. I am not sure it succeeds but as Adam says

They are not identical. Rather, as Berin and I argued, they are close cousins. Properly defined, cyber-libertarianism is essentially the application of traditional libertarian thinking — which is more properly defined as classically “liberal” — to Internet policy issues. Berin and I define “cyber-libertarianism” as “the belief that individuals — acting in whatever capacity they choose (as citizens, consumers, companies, or collectives) — should be at liberty to pursue their own tastes and interests online.” Internet exceptionalism, by contrast, is the belief that the Internet has changed culture and history profoundly and is deserving of special care before governments intervene. But that does not necessarily tell us what sort of philosophy or core tenants ultimately animate exceptionalism going forward. (emphasis added by me)

This last point is the reason I call out the piece. So far I have not seen anything that addresses the point in a satisfactory way. Adam and Berin face this gap and try to fill it. Agree. Disagree. That is your choice. But read the whole thing and see where you end up. One final note, I think classical liberalism as Adam defines it may be more empty than it seems. For now I cannot explain why. For that I apologize to those of that camp, but I am working on that. Oh which reminds me, Julie Cohen’s book, Configuring the Networked Self: Law, Code, and the Play of Everyday Practice, takes on this issue.

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Stanford Law Review Online: Politicizing the Supreme Court

Stanford Law Review

The Stanford Law Review Online has just published a Note by Eric Hamilton entitled Politicizing the Supreme Court. Hamilton writes that the Framers carefully constructed a Supreme Court independent from the political branches of government:

To state the obvious, Americans do not trust the federal government, and that includes the Supreme Court. Americans believe politics played “too great a role” in the recent health care cases by a greater than two-to-one margin. Only thirty-seven percent of Americans express more than some confidence in the Supreme Court. Academics continue to debate how much politics actually influences the Court, but Americans are excessively skeptical. They do not know that almost half of the cases this Term were decided unanimously, and the Justices’ voting pattern split by the political party of the president to whom they owe their appointment in fewer than seven percent of cases. Why the mistrust? When the Court is front-page, above-the-fold news after the rare landmark decision or during infrequent U.S. Senate confirmation proceedings, political rhetoric from the President and Congress drowns out the Court. Public perceptions of the Court are shaped by politicians’ arguments “for” or “against” the ruling or the nominee, which usually fall along partisan lines and sometimes are based on misleading premises that ignore the Court’s special, nonpolitical responsibilities.

He concludes:

The health care law’s closely watched journey through the three branches of government concluded in the Supreme Court, a rare opportunity in the sun for the Court. What would have been a shining moment for the Constitution in a vacuum was instead validation of the Framers’ apprehensions. Our Constitution is the longest-lasting in the world because of Americans’ enduring reverence for it. But when elected officials exploit Americans’ patriotism to score political points, they jeopardize the Framers’ carefully constructed balance of power. Instead, honest public discourse on the Constitution and the Court is the surest security for our government.

Read the full article, Politicizing the Supreme Court by Eric Hamilton, at the Stanford Law Review Online.

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Federal Reserve Precedent

Here comes the payoff from my comparison of judicial and central bank independence, as described in my last few posts.

Respect for precedent is a useful way of limiting the power of an independent institution like the Federal Reserve.  Furthermore, courts and central banks share a desire for stable policy to anchor expectations (about the rule of law and prices) while retaining the flexibility to adapt to new conditions. This leads to an obvious question.  If courts find common-law stare decisis helpful, why not central banks?

In this respect, a recent change at the Federal Reserve may be far-reaching.  Until the 2000s, the Federal Open Market Committee (FOMC) did not offer any explanation for its monetary decisions.  Under Chairman Bernanke, however, the FOMC began issuing a written statement after each meeting justifying its action (or inaction).  Every so often there is a “dissent” from the opinion, though the dissent is usually fairly brief.

At what point will the FOMC or dissenting bankers start citing these prior statements as some kind of authority?  Put another way, how does a system of precedent develop organically?  Initially, the relevant work product is descriptive.  The English Year Books, which first reported the pleadings under the writ system in medieval days, began as a description of how cases were decided.  Lawyers and judges later started looking at these reports for guidance (how long that process took–I don’t know).  The same could eventually happen for central banks.

I would submit that this would be a positive development, as it would take monetary policy more towards a “rule of law” rather than a “rule of men,” without going to the extreme of the gold standard, which was too inflexible back in the day.  But that gets close to falling outside of my limited area of competence.

One more post coming about how the Fed became independent, and then I’m done with this topic.

 

 

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The ACA, Citizens United, and Unfair Public Perception of the Supreme Court

I’m thrilled to be guest blogging for Concurring Opinions for July. By mid-month, I’ll post a draft of a recently completed article on quantifying probable cause, a topic inspired by my April guest blogging stint. In the meantime, I’d like to add my reaction to Thursday’s epic Supreme Court decision upholding the Affordable Care Act, with a focus on judicial legitimacy.

I am quite pleased with the commentary on the Supreme Court’s Affordable Care Act decision, from commentators on

the left and on the right. I am greatly disturbed, however, by the intractable cynicism about the Supreme Court that has gripped the public. The belief that Justices decide cases largely due to their own politics, I submit, actually enables Justices to do so, leading to a vicious cycle.

The attached poster, which has been circulated widely, urges voters to re-elect President Obama so that the Supreme Court can overturn Citizens United, which invalidated laws restricting the ability of corporations, nonprofits, and unions to engage in certain forms of political advocacy during elections. Whatever your opinion of Citizens United, reducing that case’s holding to a three-word declaration that “corporations are people” is simplistic and misleading. Citizens United refused to allow corporate expenditures on speech to be hampered based on the identity (or corporate status) of the speaker. Even Justice Stevens’ dissent acknowledged that corporations receive First Amendment protections in certain situations. The poster’s results-oriented, un-nuanced view of the case is irresponsible.

I could dismiss the poster as political pandering, but “corporations are people” seems to be what a significant portion of the public thinks that Citizens United decided. They also believe it was decided this way based on five Justices’ favoritism of corporations and antipathy towards campaign finance reform. I believe that the media is partially to blame for the public’s conflation of the results of a case with the political biases of the Justices. Articles discussing politically-charged Supreme Court cases often attribute the outcome of a case to the Justices as if the reasoning/procedural posture is secondary, and as if no Justice ever voted to invalidate a statute that he favored or uphold a statute that she abhorred. Just look at United States v. Alvarez, issued on the same day as the Affordable Care Act was deemed a tax. Surely six Justices are not in favor of individuals falsely claiming to be decorated soldiers, yet they invalidated a statute criminalizing such lies.

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Stanford Law Review Online: Discrimination, Preemption, and Arizona’s Immigration Law

Stanford Law Review

The Stanford Law Review Online has just published an Essay by Lucas Guttentag entitled Discrimination, Preemption, and Arizona’s Immigration Law: A Broader View. The author discusses the upcoming Supreme Court ruling on the constitutionality of Arizona’s controversial immigration law, S.B. 1070. He argues that discrimination must be a crucial consideration in the Court’s review of the federal preemption challenge brought by the United States:

The Supreme Court is expected to decide within days whether Arizona’s controversial immigration enforcement statute, S.B. 1070, is unconstitutional. Arizona’s law is widely condemned because of the discrimination the law will engender. Yet the Court appears intent on relegating questions of racial and ethnic profiling to the back of the bus, as it were. That is because the Supreme Court is considering only the United States’ facial preemption challenge to S.B. 1070 under the Supremacy Clause. That preemption claim asserts that Arizona’s statute conflicts with the Immigration and Nationality Act’s federal enforcement structure and authority.

But discarding the relevance of discrimination as a component of that ostensibly limited preemption claim expresses the federal interest too narrowly. State laws targeting noncitizens should also be tested against another fundamental federal norm, namely the prohibition against state alienage discrimination that dates back to Reconstruction-era civil rights laws. In other words, the federal principles that states may not transgress under the Supremacy Clause should be defined both by the benefits and penalties in the immigration statute and by the protections embodied in historic anti-discrimination laws.

He concludes:

While the precise force and scope of the Civil Rights Laws with regard to non-legal resident aliens remain undetermined, and Arizona claims to be penalizing only undocumented immigrants, defining the federal interest solely through the lens of immigration regulation and enforcement is still too narrow. Federal law is not only about federal immigration enforcement—it is equally about preventing discrimination. Measuring state laws only against the intricacies of federal immigration statutes and policies misses this essential point.

Some Justices may recognize the broader non-discrimination interests presented in the federal government’s preemption claim. And even if the pending challenge does not enjoin any or all of the S.B. 1070 provisions, civil rights challenges will more directly raise the rights of immigrants, their families and communities. But that eventuality should not obscure the importance of understanding that the federal values transgressed by S.B. 1070 and similar laws encompass both immigration and anti-discrimination imperatives.

Read the full article, Discrimination, Preemption, and Arizona’s Immigration Law: A Broader View by Lucas Guttentag, at the Stanford Law Review Online.

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Stanford Law Review Online: The Money Crisis

Stanford Law Review

The Stanford Law Review Online has just published an Essay by former U.S. Senator Russ Feingold entitled The Money Crisis: How Citizens United Undermines Our Elections and the Supreme Court. Senator Feingold explains how the Supreme Court decision in Citizens United threatens the integrity of our political process:

As we draw closer to the November election, it becomes clearer that this year’s contest, thanks to the Supreme Court’s 2010 Citizens United decision, will be financially dominated by big money, including, whether directly or indirectly, big money from the treasuries of corporations of all kinds. Without a significant change in how our campaign finance system regulates the influence of corporations, the American election process, and even the Supreme Court itself, face a more durable, long-term crisis of legitimacy.

[In Citizens United,] the Court was presented with a narrow question from petitioners: should the McCain-Feingold provision on electioneering communications (either thirty days before a primary election or sixty days before a general election) apply to this movie about Hillary Clinton? The movie, of course, was not running as a normal television commercial; instead, it was intended as a long-form, “on demand” special.

Yet Chief Justice Roberts clearly wanted a much broader, sweeping outcome, and it is now clear that he manipulated the Court’s process to achieve that result. Once only a question about an “on-demand” movie, the majority in Citizens United ruled that corporations and unions could now use their general treasuries to influence elections directly. Despite giving strenuous assurances during his confirmation hearing to respect settled law, Roberts now stands responsible for the most egregious upending of judicial precedent in a generation. As now-retired Justice John Paul Stevens wrote in his dissent to the majority in Citizens United: “[F]ive Justices were unhappy with the limited nature of the case before us, so they changed the case to give themselves an opportunity to change the law.”

He concludes:

The Court has a clear opportunity. A new challenge from Montana could allow the Supreme Court to reconsider its decision in Citizens United, and at least two justices have hinted that the 2010 ruling is untenable. In granting a stay of a Montana Supreme Court decision upholding that state’s anticorruption laws, Justice Ginsburg, writing with Justice Breyer, found the pulse of the chaos Citizens United has wrought: “Montana’s experience, and experience elsewhere since this Court’s decision in Citizens United v. Federal Election Commission, make it exceedingly difficult to maintain that independent expenditures by corporations ‘do not give rise to corruption or the appearance of corruption.’”

Justice Ginsburg is correct. Today’s framework for corruption cannot stand.

Read the full article, The Money Crisis: How Citizens United Undermines Our Elections and the Supreme Court by Russ Feingold, at the Stanford Law Review Online.

Note: corrected for typos

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Justice McLean on Originalism

“Antiquity has its charms, as it is rarely found in the common walks of professional life; but it may be doubted whether wisdom is not more frequently found in experience and the gradual progress of human affairs; and this is especially the case in all systems of jurisprudence, which are matured by the progress of human knowledge.  Whether it be common, chancery, or admiralty law, we should be more instructed by studying its present adaptations to human concerns, than to trace it back to its beginnings.  Every one is more interested and delighted to look upon the majestic and flowing river, than by following its current upwards until it becomes lost in its mountain rivulets.”

Jackson v. The Steamboat Magnolia, 61 U.S. (20 How.) 296, 307 (1858)

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More on the Filibuster and Statutes

Yesterday I talked about how current filibuster practice undercuts the super-strong version of stare decisis for statutory precedents.  Let me throw out some other implications of having a supermajority rule to pass most legislation in the Senate.

1.  Sunset provisions look very different if you think that getting a law reenacted or reauthorized will take 60 votes in the upper house.

2.  The presumption of constitutionality that attaches to Acts of Congress may be greater if they cannot be enacted without sixty senators.  Or you cannot say with assurance that there is a political remedy for statutes that are constitutionally problematic.

3.  As I noted in a prior post, severability is less attractive if you think that sixty votes in the Senate are required to replace a severed provision that is critical to the statute.  If the entire Affordable Care Act falls next month, then the filibuster is probably the culprit.

4.  The principle that one Congress cannot bind another is, in reality, not true.  A stacked Congress (one with 60 senators or more on an issue) can entrench its initiatives to a significant extent. Much of the Affordable Care Act, for example, is pretty much immune from repeal by Congress.

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Stare Decisis and the Filibuster

I’m in idea-testing mode, as I’ve been invited to a Symposium at Notre Dame on “The American Congress:  Legal Implications of Gridlock.”  My first thought was that this was asking panelists to identify solutions for gridlock.  My second thought was that this conference is about the collateral consequences of gridlock.  Pursuing that line of inquiry, I wonder if the “super-strong” presumption of statutory stare decisis should be abandoned for Acts of Congress.

A leading source of gridlock in Congress is the current practice of the filibuster.  Now I’ve written about how that practice is contrary to the Senate’s traditions and should be reformed, but let’s say nothing changes.  In effect, that means that we have a supermajority rule for most legislation.

Courts interpreting statutes, though, do not acknowledge this fact.  They assume that Congress is a majoritarian body.  The most important conclusion that follows from this faulty premise is that stare decisis should be particularly strong with respect to interpretations of federal statutes.  Why?  Well, because Congress can correct an incorrect construction fairly easily.  That point does gloss over the inertia that exists in a majority-rule legislature (committees, party leaders, the executive veto), but I gather that the idea is that this inertia is insufficient to alter the sanctity of statutory precedent. But why should these precedents be treated so respectfully when it takes sixty votes in the Senate to “fix” erroneous decisions?  Granted, this is less difficult than correcting a faulty constitutional opinion, but that does not translate into a “super-strong” rule of stare decisis for federal statutes.

I’ll have more to say about the relationship between the filibuster and interpretation tomorrow.