Sarah L. (“[T]he CSS disk’s descrambling keys are in sectors that aren’t copied when you make a copy of the disk using a noncompliant player.”) and Bruce Boyden (“[T]he whole scheme depends on licensed drives, which must play by the licensing rules.”) both had important parts of the answer, but what I was looking for is that it is physically impossible to produce CSS-encoded DVDs using home equipment. Sarah’s and Bruce’s points are both true, but even taken together, they wouldn’t explain why DVD Jon or someone else similarly disinclined to care about licensing doesn’t just write a program that writes the descrambling keys to the special sectors. They don’t because they can’t.

To decrypt a CSS-encrypted DVD, you actually need two kinds of keys. One is universal but nominally secret; it’s baked into every DVD player. This is the one that DVD Jon found. The other is different for every disc. But this second key isn’t really secret; it’s written out on the disc, plain as day for anyone to see, in a special “lead-in” sector. Ordinarily, your DVD player reads the public disc key, combines it with its own secret player key, and uses the two together to decrypt the disc contents.

Here’s the twist. There are two ways to make readable DVDs, and they use completely different technology. The large-scale industrial method is to “press” the DVD: that involves encoding the data as a series of tiny three-dimensional bumps on a mold used to stamp a corresponding pattern of pits into metal blanks, which are then encased in a layer of lacquer to make DVDs. This process, as you might imagine, has high fixed costs; the equipment alone will run you upwards of a million dollars. In contrast, the home method is to “burn” the DVD. Here, the blank disc comes from the factory prelacquered and containing an optically sensitive dye on the surface of the metal. Focus the right kind of laser on the dye and its transparency changes. From the perspective of the DVD player that will later read the disc’s patterns of opaque and transparent regions, the results are much the same as if the disc had pits and non-pits. Some areas reflect; others don’t. Ones and zeroes, more or less.

The trick that makes CSS “work” is that you can’t burn lead-in sectors. DVD-Rs (and DVD+Rs) come from the factory with the lead-in sectors zeroed out. Thus, a would-be pirate can easily read an entire encrypted disc, disc key and all, but can only burn back the data portion of the disc, without the disc key. The resulting disc is useless in a standard DVD player; there’s no disc key to be read, which means the player is at a loss in trying to decrypt it. While one could manufacture and distribute home-copied DVDs without having to bust CSS, those DVDs are only going to work on specially-coded software DVD players, not on the mass-produced home players most people have.

That’s why everything does in fact depend on CSS, and why DeCSS really is a big deal. It goes back to the control that the DVD cartel has over their hardware platform, specifically over the manufacturing format of blank media. And that control, in turn, is backed up by patent pools. Yes, you could in theory press (not burn) exact-copies of encrypted discs, or mass-produce your own non-standard blank DVD-Rs with writable lead-in areas, but to do either, you’d need some significant (and hard-to-move) capital, which makes you vulnerable if the cartel comes after you. It’s an ingenious technologico-legal trap.

Tomorrow: Some thoughts on the implications (including responses to comments).

[Gillian] Hadfield [who is organizing the conference on the law side] hopes the symposium will lead to more collaboration among scholars who may appear to have very different goals and backgrounds.

“You don’t usually find scientists, economists and lawyers talking together about the same topic,” Hadfield said. “I think people will find that we can enrich the research agenda of all these disciplines with this kind of cross pollination.”

The song that became "Happy Birthday to You," originally written with different lyrics as "Good Morning to All," was the product of intense creative labor, undertaken with copyright protection in mind. However, it is almost certainly no longer under copyright, due to a lack of evidence about who wrote the words; defective copyright notice; and a failure to file a proper renewal application.

This reminds me of a larger "Copyright Paradox" that Neil Netanel's new book explores:

Copyright law provides a vital economic incentive for the creation and distribution of much of the literature, commentary, music, art, and film that makes up our public discourse. Yet copyright also burdens speech. We often copy or build upon another’s words, images, or music to convey our own ideas effectively. We can’t do that if a copyright holder withholds permission or insists upon a license fee that is beyond our means.

Thank goodness for fair use.

[By 2006], [a]lmost all of . . . subprime loans ended up in securitized pools; indeed, the reason banks were willing to issue so many risky loans is that they could fob them off on Wall Street. But who was evaluating these securities? Who was passing judgment on the quality of the mortgages, on the equity behind them and on myriad other investment considerations? Certainly not the investors. They relied on a credit rating.

Thus the agencies became the de facto watchdog over the mortgage industry. In a practical sense, it was Moody's and Standard & Poor's that set the credit standards that determined which loans Wall Street could repackage and, ultimately, which borrowers would qualify. Effectively, they did the job that was expected of banks and government regulators. And today, they are a central culprit in the mortgage bust, in which the total loss has been projected at $250 billion and possibly much more.

What's particularly interesting here is how the ratings agencies' dominance in their field can be in part attributed to their own failure to foresee the Penn Central collapse:

Government responded. The Securities and Exchange Commission, faced with the question of how to measure the capital of broker-dealers, decided to penalize brokers for holding bonds that were less than investment-grade (the term applies to Moody's 10 top grades). This prompted a question: investment grade according to whom? The S.E.C. opted to create a new category of officially designated rating agencies, and grandfathered the big three -- S.&P., Moody's and Fitch. In effect, the government outsourced its regulatory function to three for-profit companies.

Bank regulators issued similar rules for banks. Pension funds, mutual funds, insurance regulators followed. Over the '80s and '90s, a latticework of such rules redefined credit markets. Many classes of investors were now forbidden to buy noninvestment-grade bonds at all. Issuers thus were forced to seek credit ratings (or else their bonds would not be marketable). The agencies -- realizing they had a hot product and, what's more, a captive market -- started charging the very organizations whose bonds they were rating.

How to solve the problem? Here's Alan Blinder's view:

Dilip Abreu suggests paying ratings agencies with some of the securities they rate, which they would then have to hold for a while. Robert Pozen, head of MFS Investment Management, wants independent investors in the conduits to hire the agencies instead. Another idea would have a public body, like the S.E.C., hire the agencies, paying the bills with fees levied on issuers. If you have a better idea, write your legislators.

Might some form of liability for reckless ratings also help? One thing is certain: the cozy relationship between the raters and the rated has to end. Frank Partnoy has been writing about this for some time; he's probably one of the few who would be unsurprised by this catalog of conflicts compiled by Aaron Lucchetti:

[By 2006, Moody's] became willing, on occasion, to switch analysts if clients complained. An executive overseeing mortgage ratings went skydiving with a client. . . . [Profits at Moody's] rose 375% in six years. The share price quintupled. . . . As Moody's staff grew to accommodate the surging mortgage market, [a top executive] arranged off-site meetings for employees to get to know each other better. At one, he sung as a Blues Brother, while at another, two Moody's executives entertained by wrestling in fat suits.

When the de facto market regulators are aping Austin Powers movies, something's gotta give.

[One family] hadn't realized they had signed an arbitration agreement at all . . . . But their six-page admissions contract with the Attala County Nursing Center included a paragraph requiring arbitration. It also said that if the family challenged the agreement in court they would have to pay the home's legal fees. That type of provision was declared "one-sided" and "oppressive" by the Mississippi Supreme Court last year in a separate lawsuit. But it helped pressure [the] family to accept the arbitration . . . .

A sidebar claims to offer some strategies for dealing with arbitration clauses:

Lawyers say patients should question admissions personnel closely. If an arbitration agreement is mandatory, they say, patients should write on the contract that they're being given no choice. "Write on the page, 'I'm signing this, because I was told I have to' " for admission, says Cleveland plaintiffs lawyer Blake Dickson, to try to make it easier to challenge an agreement in court.

Even the staunchest advocates of arbitration find these agreements troubling; the "biggest arbitration provider, the American Arbitration Association, frowns on agreements requiring arbitration in disputes over nursing-home care and generally refuses such cases." What's particularly ironic here is that much of the same political coalition that moved heaven and earth to respond to the Schiavo situation is behind the limits on lawsuits (and regulatory cutbacks) that make increasing risks of neglect and dehydration of the elderly a far more attractive business strategy.

This objection comes on top of earlier protests at the choice of a Chinese sculptor, Lei Yixin -- some saying that a black person or at least an American should design the statue; others criticizing the use of Chinese granite instead of the good ol' American kind, and others objecting that some of Lei's earlier work celebrates Mao Zedong.

The new criticism claims to be aesthetic rather than political, but the two are so fundamentally intertwined in this setting that art cannot distinguish itself from politics. Take, for instance, the following from a Washington Post blogger:

Such controversy is par for the course. Several large memorials have been built on the National Mall in the last 15 years, including very large and prominent commemorations of the Korean War(1995), World War II (2004), and the presidency of Franklin Roosevelt (1997). WIkipedia quotes a writer in the Philadelphia Inquirer attacking the "pompous style" of the World War II Memorial as the sort "also favored by Hitler and Mussolini." Disability activists agitated for a statue of FDR in which his wheelchair was visible (such a statue was later added on to the memorial). Most famous of all, remember the howls that greeted Maya Lin's visionary design for the Vietnam Wall. And of course many have -- quite correctly, in my view -- criticized all these memorials for their giant scale and cacophony of cliche elements (Flags! Fountains! Inscribed quotes! Stone pillars representing something! Niches for reflection!). In this nifty illustrated essay for Slate, Witold Rybczynski tours the DC memorials and highlights, among other things, how didactic modern memorials have become, a feature surely shared by the plan for the King Memorial, as illustrated here.

Yet eventually all these were built; all are visited. More fundamentally, I wonder if this process of arguing over the nature of the memorial is itself part of its legacy. The debate captures, in miniature, the process of a culture communally shaping the narrative of its past. And in that vein, the thoughtful and diverse comments to the blog post quoted above are fascinating. For the most part, these are the kinds of comments I wish you saw more often on blogs. The very first commenter agrees with the aesthetic objection to the statue but doesn't care if it's "Made in China," then someone a few down says "outsourcing of the memorial to China is appalling" but likes the design, and so on for screen after screen. This thing is a Rorschach blot!

And in the end, isn't that a pretty good model for a memorial?

For diversion during this tumult, I turn to this kind of thing:

The British (and Irish) seem partial to peddling things with comedy, while Americans apparently prefer the more earnest pitch of upward mobility. And while American soap operas are filled with beautiful people living successful lives, the British gobble up decades of bleak dramas featuring unemployed people kippering themselves in the cigarette smoke of their local pub. But enough pop transatlantic sociology.

What really fascinates me at these busy times is how some of our colleagues in the field manage to sustain an incredible pace of productivity throughout the year: a feat that requires the unusual talent of staying focused through frenzied times such as these as well as during the wide open spaces of mid-summer.

So I've attempted to make something of a ludicrously unscientific study of what a week in the life of a super-productive academic looks like. I've asked a few people who strike me as fitting that description to describe how they combine the central academic requirement of scholarly output with all the peripheral administrative and personal demands of this business. I'll report my findings in the coming few posts.

[Over] the past five years, [the press could have been reporting] 8 percent unemployment (instead of 5 percent), 5 percent inflation (instead of 2 percent), and average annual growth in the 1 percent range (instead of the 3-4 percent range). . . .

Phillips focuses on the work of John Williams, whose "shadow stats" offer a skeptical look at official government reporting. Executive branch officials have manipulated the figures to the point that some commentators find GDP and CPI numbers useless. Food and fuel crises may barely dent current inflation figures due to a fateful decision during the Nixon administration:

[In the 1970s], Federal Reserve chairman Arthur Bums develop what became an ultimately famous division between "core" inflation and headline inflation. If the Consumer Price Index was calculated by tracking a bundle of prices, so-called core inflation would simply exclude, because of "volatility," categories that happened to be troublesome: at that time, food and energy. Core inflation could be spotlighted when the headline number was embarrassing, as it was in 1973 and 1974. (The economic commentator Barry Ritholtz has joked that core inflation is better called "inflation ex~inflation"-i.e., inflation after the inflation has been excluded.)

What happens to our view of the economy when statistics better represent reality?

The economics profession underwent a revolution in December last year, as economic understanding of the world suddenly shifted. Suddenly the world has more poor. Incomes declined in emerging economies: down by 40 percent in China and India, 17 percent in Indonesia, 41 percent in the Philippines, 32 percent in South Africa and 24 percent in Argentina. For Indonesia, the decline was far worse than the Asian crisis, and for China and India, the decline was worse than the one experienced by Germany during the Great Depression. . . .

The event was the release of new estimates of purchasing power parity, or PPP. Measured as part of a large international endeavor called the International Comparison Program, PPP aims to accurately calculate a country’s economic power rather than simply dividing total national output by a country’s population. . . .

These new estimates will have far-ranging consequences. Literally hundreds of scholarly papers on convergence or divergence of countries’ incomes have been published in the last decade based on what we know now were faulty numbers. With the new data, economists will revise calculations and possibly reach new conclusions.

Statistics in the US may be ripe for a similar adjustment. Consider these examples explored by Phillips:



[In] 1994, the Bureau of Labor Statistics redefined the workforce to include only that small petcentage of the discouraged who had been seeking work for less than a year. The longer-term discouraged--some 4 million US adults--fell out of the main monthly tally. Some now call them the "hidden unemployed." For its last four years, the Clinton Administration also thinned the monthly household economic sampling by one sixth, from 60,000 to 50,000, and a disproportionate number of the dropped households were in the inner cities; the reduced sample (and a new adjustment formula) is believed to have reduced black unemployment estimates and eased worsening poverty figures. . . .



[S]ince the 1990s, the CPI has been subjected to three other adjustments, all downward and all dubious: product substitution (if flank steak gets too expensive, people are assumed to shift to hamburger, but nobody is assumed to move up to filet mignon), geometric weighting (goods and services in which costs are rising most rapidly get a lower weighting for a presumed reduction in consumption), and, most bizarrely, hedonic adjustment, an unusual computation by which additional quality is attributed to a product or service.

The minimization of unemployment and inflation (and maximization of GDP) can be accomplished via real economic progress, or via statistical sleight of hand. If it's getting harder and harder to distinguish between the two, perhaps we need to focus less on aggregate data and more on the degree to which all citizens have basic needs met--such as decent schools, affordable public transit options, and freedom from fear of medical debt and health insurance fine print.

[C]ontemporary reality television shows can be broken down into eight general themes: sociocultural, makeover, survival, professional, romance, fame, reform, and practical joke shows.

Though Heckman concedes that "none of the shows operate exclusively in any single category," their sheer number confirms his thesis that "reality television has metastasized in recent years." Certain economic imperatives fueled the genre's growth--especially the lack of actors or script-writers to pay in what Writers Guild President Daniel Petrie, Jr. calls "a 21st-century telecommunications industry sweatshop." Beyond the supply side, the demand side is also leading to pressures for a more fragmentary and immediately comprehensible entertainment experience. Virtually all the reality TV I've seen has been watched en passant. But the snippets make perfect sense standing alone, or briefly introduced on a show like Talk Soup or Best Week Ever. Like the cell phone novel in Japan, the disjointed parade of stereotyped scenes can be taken (or left) in whatever chunks are most convenient.

Heckman connects reality TV "stars'" fluid personas to movies of memory, like Eternal Sunshine of the Spotless Mind or A Scanner Darkly. He says that the "common thread running through these films is the idea that a self that can be encoded, erased, and re-written." Adam Kolber has thoughtfully addressed these issues in his work on "freedom of memory;" Heckman suggests that our new entertainments reveal a darker side to that freedom:

The twist presented in these stories is not a discovery that pertains to some other; instead,it comes in the realization of who the protagonist has been all along. Where things get interesting is in the protagonists' utter mystery/uncertainty and befuddlement as to who they might be. Rather than wondering what is concealed beneath the surface, the characters themselves are pieced together from external cues . . . [They] confirm[] the assumptions of posthumanism, which suggest that the "person" is not simply the expression of an eternal, immutable state, but rather, is the point where discursive threads converge.

This is some pretty heady stuff, but it has a direct bearing on the "Makropolous debate" over immortality that Bernard Williams started a few decades ago. Williams has argued that one would only opt for immortality on two conditions: “that it should clearly be me who lives forever . . . [and] that the state in which I survive should be one which, to me looking forward, will be adequately related, in the life it presents, to those aims which I now have in wanting to survive at all.” The second condition suggests that the technological "immortality project" looks a lot more appealing if one accepts the version of the self now prevalent in reality TV: endlessly revisable, mutable, adjustable. Though some would dismiss it as a disposable artifact of pop culture, reality TV influences not merely the self's presentation but also its very sources.

PS: This is a fascinating insight on "Big Brother" from David Banash:

Set within the confines of a small house, Big Brother pitted ten houseguests against one another under total surveillance that included twenty-four hour web-cam feeds. While the program sold itself as a glimpse of everyday life, the house is particularly odd in that it lacks almost every kind of device its core audience takes for granted: no phones, televisions, computers, or radios. In essence, what most Americans spend most of their time doing (consuming media) is almost the only thing that Big Brother really forbids.

Thus, the authentic moments of emotion which the show sells as its real attraction are, in fact, generated through the most heavy-handed and apparent simulations. The same could be said for similar programs such as Survivor, The Mole, and Temptation Island. The very heavy-handedness of the narratives, their utter dissociation from everyday life, moves them further and further away from the kind of realism with which the documentary has traditionally been associated, and yet the promise is still always the real itself.

The closer television tries to get to "the real" here, the further it falls short. Much like the immortality project's hypostatization of the self ultimately threatens to dissolve or deny it.

Image Credit: NotionsCapital.com, Mike Licht.
Photo Credit: nathangibbs.

Orin Kerr writes:

Justice Scalia's view has popular appeal precisely because it is based on populism. His basic theme is that the People created the Constitution, and they can set rules with in it. If the People want to change the Constitution, they can. But it's up to them. In this view, the People decide: Every citizen is empowered to participate in the rule making that governs us all. I think this resonates not because Justice Scalia is a legal Pied Piper but because the message itself is quite powerful (and to me, I confess, pretty persuasive). At bottom, it's "we the people."

Kerr notes that liberal constitutionalism can be defended by arguing that "some limitations on democratic rule making actually enhance democratic rule making." But, Kerr notes: "This is a very popular move among academics, although it can be hard to sell to the public." Kerr also contends that another option is "to forget about theory and instead focus on results. . . . The idea is to focus on the bad results that are possible if courts let elected branches run amok, and then ask whether you want to live in a world with good results or the potential for bad ones."

Jack Balkin contends that "Scalia may say his originalism is respectful of majority rule, but he is perfectly happy to strike down lots of laws for which there is little basis in the original expected application." Balkin goes on to argue:

By contrast, liberal constitutionalism is far more honest. Its basic principles are simple. First, we must be faithful to the constitutional text and to the basic principles of the Constitution that underlie it. Second, we must apply and adapt these principles in the text to changing times. Liberal constitutionalists from Brandeis to Brennan have made these two basic claims over and over again: Be faithful to the constitution's text and principles, and apply them faithfully to new circumstances and new challenges.

I have a few thoughts to add to this debate:

1. The quest in theories of constitutional interpretation has often been to find a way to legitimate judicial review. What gives courts the power to stop the will of the majority? The problem is that in a post-realist age, we realize that the Constitution is not very constraining and that justices can interpret it as freely as they can a Rorschach blot. This makes the quest for legitimacy a very difficult one, in at least two senses: (1) we need a theory for why a document written hundreds of years ago can bind us today, even when a large majority of us may want to do something; (2) we need a theory for why judicial interpretations of this document are authoritative and not merely the gussied-up projection of a justice's preferences. All sorts of valiant efforts have been made to find legitimacy in these two senses.

2. I'm not sure we should be so obsessed with legitimacy, because I'm not sure that we'll ever come up with a satisfactory way to achieve it. Kerr might very well be right that most theories to find legitimacy might appeal more to theorists than to the general public, and that's a big problem, for at least one main reason why legitimacy is sought is to convince the public of the validity of the Court's decisions. Paul Kahn's Legitimacy and History (1993) makes a very powerful argument for why the quest for legitimacy is futile.

3. Justice Scalia's populist constitutionalism is also deeply flawed. He says he's reluctant to overturn the will of the majority, but as Balkin notes, that's just false. Scalia's brand of originalism is just one theory among many to claim legitimacy, a way to argue that Scalia's interpretations are somehow more grounded than other justices' interpretations, that he somehow has insight into the true meaning of the Constitution. But there is no true meaning of the Constitution. And Scalia's method of interpretation is no more legitimate than many other methods. The realist in me says that this entire debate is about sloganeering. Everybody wants their vision to be the true meaning of the Constitution, and it devolves into a silly game of "I'm more legitimate than you."

5. Suppose you're a legal realist, and you're deeply skeptical of the judiciary interpreting the Constitution in a way that's objective and neutral (because legal realists know that such a task isn't really possible). You think that democracy is a good thing and it is better for majorities to have their way than for some unelected justices to impose their own preferences via the guise of constitutional "interpretation." There are a few options: (a) become a proponent of judicial restraint; (b) become a judicial activist because, heck, it's all illegitimate and if you're on the Supreme Court, you might as well have a bit of fun with all your powers. Whether you do (a) or (b), you should be sure to create your own theory of constitutional interpretation and play the rhetorical game of arguing that it is legitimate and captures the true meaning of the Constitution. Of course, since you're a realist, you don't really believe all the rhetoric you spew, but you need something to justify your actions rather than look like you're exercising raw power. If these are the choices, then judicial restraint seems like the least bad among a series of rather unpalatable options.

6. But all that said above, I think that (b) is actually the better option. I've stacked the deck against myself, so I've got some explaining to do. First, I agree with the Framers and their skepticism of majoritarianism. There are many reasons why we don't want pure majority rule. Majorities often don't have the interests of minorities in mind. Majorities might readily sacrifice liberties for the fears of the moment or for short-sighted gains. One of the virtues of constitutions is that they put the brakes on rapid changes, preventing a society from changing core values in a pinch. They mandate that change occurs slowly. In this respect, constitutions have a conservative function in the Burkean sense.

7. I also agree with Bruce Ackerman's critique of the legislative process, which often doesn't reflect majority will or the voice of the people. All too often, "we the people" are invoked to justify the legitimacy of legislation, but it's largely not true that laws represent populist will. Some do, but many don't. Finding the true populist will is made more difficult in the modern age by the fact that our country is so large, that government has become far more bureaucratic, that there are countless issues and limited time for most people to keep up with them all (let alone even our representatives, who require extensive staffs to keep themselves informed).

8. A key virtue of the Constitution, in my opinion, is that it is a tool that promotes freedom. Freedom, of course, is subject to many perspectives, but one of the Constitution's great attributes is that it limits government power. It ensures that people have rights, that government should be overseen and be accountable, and so on. Regardless of whether the majority wants a right to free speech, the Constitution mandates that it exist. And that's the point when it comes to rights.

9. I believe that the Constitution should be interpreted according to one's guiding vision of the good society. Many scholars have attempted to find some kind of neutral procedural approach toward constitutionalism -- but as Laurence Tribe persuasively pointed out in Constitutional Choices, the flight from substance is futile. It is more honest if a justice is up front about the substantive vision behind his or her interpretation of the Constitution.

10. But what limits or constrains constitutional interpretation? We don't want rule by oligarchs on the Supreme Court. There must be some constraining factors on how robustly justices can interpret the Constitution. I think that some kind of originalism or textualism is appropriate. Justices shouldn't interpret the Constitution blindly, completely ignoring the text. Nor should they completely repudiate the history of the document. So looking to what the Framers intended should be instructive, but not necessarily controlling. It is also useful to look to history -- as Bruce Ackerman notes, the meaning of the Constitution has shifted over time, and it is impractical (and normatively undesirable) to go back to the original meaning. Different moments in history have radically reshaped our vision of the Constitution. All this, however, doesn't do a lot to limit constitutional interpretation. Indeed, I don't think that there are firm ways to create such limits. A major limiting factor is a justice's own attempt to be coherent, to appear to have fidelity to a theory of constitutionalism, to be able to articulate reasons for his or her decisions that the legal community and the general public find compelling (or at least acceptable).

11. Another limiting factor is the ability of the people to amend the Constitution. Here is where there's a big flaw in the Constitution. It's way too difficult to amend. While it shouldn't be easy to amend (or else it dissolves into nothing but majoritarianism), it currently is close to impossible to change. As a result, as Bruce Ackerman has pointed out, we've amended the Constitution through interpretation -- it's easier to get the change we need that way. Otherwise, we'd be too bound by the dead hand. But part of the problem with this is that once the Supreme Court has decided something, it too strongly trumps the majority. A Constitution should put the brakes on popular will, it should slow down the process of change, but it can't be too constraining. Our Constitution currently is too constraining. The only way to let out the steam is to interpret the Constitution is some pretty funky ways. When these interpretations don't spark the ire of the people over time, then they are accepted. Although controversial at the time, Brown v. Board of Education is largely accepted today. When interpretations conflict with popular will over the course of a long time, these interpretations are often (though not always) chipped away at or overruled.

12. The solution seems to me to be to make the Constitution easier to amend (not too easy, but not nearly as difficult as it is now). A key factor in the process of changing the Constitution is that it should be slow -- there needs to be some time for deliberation and cooling off so that the Constitution doesn't just reflect the whims of the moment. If the Supreme Court decides something that strongly cuts against popular will, and it remains this way for a while, then the people should be able to change it. Supreme Court opinions are currently showstoppers. They shouldn't be. Making the Constitution easier to amend will lessen the impact of Supreme Court decisions. The Court won't be the final word. This also addresses (in part) the legitimacy problem. It may be that the quest for legitimacy can never be satisfactorily satisfied, but if the Constitution is easier to amend, the legitimacy of a judicial interpretation becomes less important. It also opens up the possibility for legitimacy to be conferred after-the-fact. If a Supreme Court decision stands the test of time (i.e., isn't reversed via amendment), then it is at least something the people can live with. That's not quite as pure a legitimacy as those seeking legitimacy would like, but it's probably about as much legitimacy as one might get in a post-realist age.

As normally told, this story illustrates all sorts of useful points. It shows how a classic DRM-based business model works: sell individual copies with DRM that keeps them from turning into lots of copies. It shows how painfully insecure such business models can be: DVD Jon was easily able to find the super-seekrit CSS decryption key in the code of a Windows DVD player (every DVD player in existence, after all, must contain a copy of the key). And it shows the might of the law descending with fury and malice in response: lawsuits under the Digital Millenium Copyright Act soon followed.

But there’s a gaping technological hole in this story. You see, CSS as I’ve described it above, tries to block one specific attack vector: copying an encrypted DVD onto a computer and decrypting it, then using the computer’s DVD burner to make a new, unencrypted DVD version. DeCSS opens up this attack again. But why would anyone bother with this slow, clumsy way of making copies? Why not just read the encrypted contents of the DVD onto the computer, keep the bits encrypted, and burn them back onto a new DVD in exactly the same form? You wind up with a new DVD, exactly identical to the old. And, of course, thanks to the convenient fact that every DVD player in existence has a copy of the decryption key, that new DVD is playable on any DVD player in existence.

In other words, CSS sounds like a gigantic dust-up over nothing. Would-be pirates already have a perfectly good way of making any number of perfect copies. Worrying about DeCSS, it would seem, is like worrying about the barn’s windows when the wide-open door is just gaping at you. Hasn’t the legal system—and by extension, the legal academy—just spent who knows how many hours on a massive intellectual boondoggle?

Thus, a question for the readership. What crucial fact is missing from the story above? I’ll post the answer tomorrow, along with some pointed observations about the implications.

1 George Washington University - Law School (1)
2 Harvard University - Harvard Law School (2)
3 Columbia University - Columbia Law School (3)
4 University of Chicago - Law School (4)
5 Yale University - Law School (6)
6 University of Texas at Austin - School of Law (5)
7 University of California, Los Angeles - School of Law (7)
8 Georgetown University - Law Center (9)
9 Stanford Law School (8)
10 New York University - School of Law (11)
11 University of Illinois College of Law (10)
12 University of Pennsylvania Law School (12)
13 University of California, Berkeley - School of Law (13)
14 Vanderbilt University - School of Law (14)
15 University of Minnesota - Twin Cities - School of Law (16)
16 George Mason University - School of Law (18)
17 Duke University - School of Law (17)
18 University of Tennessee, Knoxville - College of Law (15)
19 University of San Diego - School of Law (19)
20 University of Michigan at Ann Arbor - Law School (20)
21 University of Southern California - Law School (21)
22 Northwestern University - School of Law (22)
23 Temple University - James E. Beasley School of Law (28)
24 Florida State University - College of Law (25)
25 Boston University - School of Law (27)
26 Fordham University - School of Law (24)
27 Yeshiva University - Benjamin N. Cardozo School of Law (26)
28 American University - Washington College of Law (31)
29 Loyola Law School - Los Angeles (23)
30 University of Virginia - School of Law (29)
31 Cornell University - School of Law (34)
32 Ohio State University - Michael E. Moritz College of Law (30)
33 Suffolk University Law School (32)
34 Emory University - School of Law (36)
35 University of Louisville - Louis D. Brandeis School of Law (37)
36 Brooklyn Law School (35)
37 Indiana University School of Law-Bloomington (33)
38 Chapman University - School of Law (38)
39 St. John's University - School of Law (43)
40 University of Florida - Fredric G. Levin College of Law (47)
41 Case Western Reserve University - School of Law (41)
42 Notre Dame Law School (40)
43 Boston College - Law School (39)
44 Rutgers, The State University of New Jersey - School of Law-Camden (44)
45 University of Houston Law Center (Off-list)
46 Wayne State University Law School (Off-list)
47 Loyola University of Chicago - School of Law (Off-list)
48 University of Arizona - James E. Rogers College of Law (46)
49 Northern Kentucky University - Salmon P. Chase College of Law (Off-list)
50 Seton Hall University - School of Law (48)

Cornell Law Review, Volume 93 Number 4 (May 2008)

Articles

Grand Jury Discretion and Constitutional Design
Roger A. Fairfax, Jr.

Can Law Manage Competitive Energy Markets?
David B. Spence

Notes

Striking a Better Public-Private Balance in Forum Non Conveniens
Emily J. Derr

Restitution and the Lacey Act: New Solutions, Old Remedies
Kenneth B. Meyer

Book Review

The Quantitative Moment and the Qualitative Opportunity: Legal Studies of Judicial Decision Making
Gregory C. Sisk

I've always wondered about a related question. The judiciary adheres to stare decisis for many principles of law, but it seems to allow a free-for-all when it comes to interpretative method. Interpretative method (for both the Constitution as well as statutes) is left to the discretion of each individual judge or justice. So one judge might be an originalist, another might be a textualist, and yet another might adhere to the "living constitution." On the Supreme Court, for example, its institutional opinions -- those of the majority -- seem to shift from one interpretative method to another depending upon which justice authors that opinion. Why isn't the method of constitutional or statutory interpretation governed by stare decisis?

Stare decisis is justified based on the need for stability and consistency in the law. We frequently hear lofty pronouncements by courts about the great value of precedent. But these same values that underpin and justify stare decisis seemingly also apply to interpretative method. Wouldn't constitutional law be more stable and consistent if all the justices were to adhere to stare decisis about what method (originalism, textualism, etc.) should be used to interpret the Constitution? Why not bind justices in this way?

Of course, if methods of interpretation don't matter in the end, if cases are just decided on ideology and interpretative methods and theories are just elaborate window-dressing, then my question doesn't matter all that much. But if these methods do carry some influence or weight, if they do matter at all, then why do they remain so unsettled? Why not bind them with stare decisis? Perhaps justices might feel too constrained. If Justice Thomas couldn't be an originalist because of stare decisis, would this impinge upon his own individual prerogative, his unique judicial style? But stare decisis is about constraining justices based on what past justices have decided. So why not bind justices in this manner?

Is there a good argument for why stare decisis should not apply to interpretative method?

Image credit: David Lat (who has photos on my favorite photo site, Stock.xchng)

Among lawyers, the games may be best-known for the regular moral panics they induce over fears of copycat violence, and for attorney Jack Thompson’s increasingly bizarre crusade against them. We might also ask what kind of a legal world the GTA series envisions within its famously capacious in-game universe.

The series’s built-in attitude of rampant lawlessness—it’s named after a crime, after all—might suggest a kind of deliberate criminality. That’s certainly the interpretation that fuels the regular calls for the games to be banned. And yes, the plots typically chart the protagonist’s Scarface-style rise as he carries out errands both murderous and larcenous for an entertaining assortment mob bosses. This interactive representation of lawlessness—the player playing at the role of criminal—puts the Grand Theft Auto games squarely within the tradition of deliberate shockers like Postal.

But this may be an unduly harsh take, and not just because the claim that playing violent games leads to violence in meatspace rests on some dubitable social science. San Andreas may well show us the world as Holmes’s bad man would see it, but consider the lessons he’d learn from it. Crime doesn’t always pay. In fact, offhandedly casual offenses—driving on the sidewalk to circle around traffic, say, and in the process clipping a pedestrian—can put the police on your tail. And the aggresive things you do to try and shake them often wind up making matters worse. Before you know it, you have a six-star wanted rating, they’re sending in the black helicopters, you’re crouched in a doorframe, and there’s pretty much only one way this story can end. Exaggerated though the arc may be, it does illustrate some of the vicious circles trapping the poor, the desperate, and the criminal.

Or consider the in-game depictions of the legal system itself. Get arrested by the police, and you’re back on the streets within seconds—minus some bribe money. Call it an indictment of revolving-door-prison liberalism, or call it an indictment of police more interested in protecting their turf than in doing justice or confronting Liberty City’s very real problems. The lawyers don’t come across much better: Ken Rosenberg is a paranoid cokehead who asks our hero to fix a case by intimidating jurors.

One last thought. Given the games’ increasingly humongous alternate reality, how about building in a penal code? Grand Theft Auto’s legal geekery index would soar if every unlawful act were accompanied by a statement of exactly what crime the player had just committed. “Arson in the second degree!” “Involuntary manslaughter!” “Grand theft garbage truck!” For added fun, the crimes could be correlated with a set of sentencing guidelines, so that the in-game statistics screen would tally up precisely the number of years of imprisonment the protagonist deserved.