1

“Unpublished” Supreme Court Orders

Supreme Court watchers are expressing some consternation about the Court’s willingness to take significant steps in recent cases (same-sex marriage, abortion, and voting rights) without explanation.  This is especially true with respect to granting or denying stays, though in the same-sex marriage cases that concern extends to the denial of certiorari.  What in blazes is going on here, they ask?  Doesn’t the Court owe us some explanation?

I wonder if the Justices should consider an option used in the circuit courts–an unpublished order–to provide more transparency in these situations.  One can understand why the Court would not want to use a published opinion to explain a decision about a stay (which is only a preliminary or tentative act) or the denial of certiorari (as that would set a precedent without the benefit of full briefing and argument).  I can, though, imagine doing so through an order that says “this may not be cited as precedent” if the Court felt an explanation was necessary.  Granted, people would still try to cite these orders (as a law clerk, I often saw attorneys citing unpublished orders), but a norm could develop that would make these statements non-binding.

Most of the discretionary actions that the Court takes would not warrant an explanation (certiorari denials, petitions for rehearing, original habeas petitions), but there is the occasional exception.  Right now only a dissenter can open a window into what goes on with respect to these important choices.  I’m not sure that is always good enough.

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The Leaked TPP: Some notes, and Criminal Copyright

Today Wikileaks released the latest leaked draft of the IP chapter of the Transpacific Partnership Agreement (TPP). The TPP is a plurilateral trade agreement being negotiated between select countries across the Pacific, and is the latest in a longish line of free trade agreements that address IP law in great detail.

Free trade agreement negotiations are subject to a surprising amount of secrecy, but select industry advisers have access to detailed US negotiating objectives. Today’s leaked text, dated May of 2014, allows public interest groups and the general public a chance to play catch-up to US industry advisers.

I suspect that the drafts are often leaked, or “pleaked“,  by negotiating partners seeking to activate US public interest groups more sympathetic to their negotiating positions than to the positions proffered by the US. The leaked text shows evidence that such pleaking can work: more controversial provisions from older leaked drafts, including one in direct conflict with the Supreme Court’s decision on first sale doctrine in Kirtsaeng, have been removed. And the repeated leaking raises the question of why the US doesn’t voluntarily open the process up earlier- if leaking is now so prevalent that we’re going to see what’s in the agreements anyway, why insist on the dirty haze of secrecy and keep the public one step behind?

A number of people at public interest organizations (KEI, Public Citizen) have criticized the leaked text’s patent provisions for blocking access to medicines. The text also contains extensive provisions on geographical indications, and public performance rights, each of which raise significant issues (especially performance rights in light of the controversial Ninth Circuit decision in Garcia- for more on this issue in the international context, see Jacob Victor’s just-released essay).

The leaked draft also contains language on trade secrets that could be read to require a private cause of action, and may end up being used to launder federal law in the current debates over whether the U.S. should create a federal trade secrets private cause of action.

But the portion of the draft I would like to highlight is its provisions on criminal copyright law. Criminal copyright is a large part of what got ACTA rejected in the EU. As many have noted, the United States does not have the greatest interface between its copyright law and free speech rights, thanks to Supreme Court decisions in Eldred and Golan. As a consequence, Congress has been able to legislate into existence criminal copyright law that impinges on free speech values both by defining a low level of infringement as criminal, and by employing enforcement tools (such as the seizure of websites) that restrict freedom of expression.

The leaked draft shows a fight between the US and Canada over the scope of criminal copyright infringement and enforcement. Canada wishes to clarify that countries may restrict the criminalization of infringement to truly commercial scale infringement (see fn 183), while the US, per our domestic statute (the NET Act), wishes to reach noncommercial acts. The US fought China on this exact issue at the WTO and lost, so has been using free trade agreements to try to raise the TRIPS standard. The TPP parties are evidently debating whether to include the following: “For greater certainty, “financial gain” does not obligate a Party to provide criminal procedures and penalties in cases of de minimis infringements.” My guess, given past FTA language, is that the US comes down strongly against this footnote.

The underlying standard for criminal copyright infringement matters because it brings with it a host of enforcement tools, and active involvement by the state, thus implicating privacy in addition to free speech.

And when the low standard gets exported from the US, it can result in unintended consequences abroad. In Colombia, which enacted its current criminal copyright law pursuant to its free trade agreement with the US, a graduate student was arrested for posting a fellow scholars’ academic paper online without permission. Annemarie Bridy points to this prosecution as the consequence of US trade policy. And while the EFF is optimistic that the student should be acquitted under Colombian law, the case shows that free-speech fears over criminal copyright enforcement are real.

Until enhanced criminal copyright law comes off the US trade agenda, free trade agreements will continue to face opposition from those concerned about free expression and privacy online.

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FAN 36.1 (First Amendment News) Skover to Speak on McCutcheon Case

By way of a shameless plug for my coauthor:

INFLUENTIAL VOICES  

David Skover

David Skover

Seattle University School of Law
is proud to present
Professor David Skover

SCOTUS Books-in-Brief: When Money Speaks: A New Venture in E-Publishing

Wednesday, October 29
Room C6, Sullivan Hall, 4:30 p.m.
Reception to follow

The event is open to all, but RSVPs are requested.

Professor Skover will speak about the creation of the SCOTUS Books-in-Brief imprint and his latest coauthored book, When Money Speaks: The McCutcheon Decision, Campaign Finance Laws, and the First Amendment.

When Money Speaks analyzes the controversial U.S. Supreme Court decision in McCutcheon v. FEC, which struck aggregate limits on contributions to political candidates. It has been called “a brilliant discussion of campaign finance in America” and “the best book on the topic.”

The SCOTUS Books-in-Brief series provides readers with reliable, informative, and engaging narrative accounts of significant Supreme Court rulings shortly after they come down.

Introduction by Dean Annette E. Clark 

 

1

CUT THE CORD!! HBO without Cable

O frabjous day! Callooh! Callay! It is about time! HBO has announced it will offer a streaming service in 2015. Earlier claims about the need for cable to market and to work with the cable industry seem to have fallen away. The claim is that there are 80 million homes that do not have HBO, and HBO wants to fix that. Can you say Netflix? Netflix subscriber numbers were flat today. Still, if HBO goes over the wall, I imagine that Showtime and others will too. So I may just succeed in cutting the cable. Atlanta has decent digital signals (though there should be more). The most interesting thing to watch: ESPN’s next move. It has a hold on cable a Brazilian jiujitsu master would respect. But if ESPN decides to go with a direct pay model, it could pick up many new viewers, especially the ones who are used to watching the special college version of ESPN they have for free while at some schools.

These markets may also be quite different. Some may prefer the ease of watching the pre-programed madness that is cable. Heck, if I am channel surfing and see that Ocean’s Eleven is on TNT, I will watch with commercials even though I own the blasted DVD. Oh yes, laugh. Because you know that you do it too. May not be Ocean’s but fill in the blank with Bridget Jones or whatever floats your boat; there is something oddly comforting or easy about finding a program in a guide and selecting it. It seems like a low-grade information overload problem. Rather than reaching for the DVD or searching Netflix or Amazon, having someone else narrow the options tips us into odd choices like watching that same movie for the umpteenth time with God help me commercials!

In any event, I hope the HBO experiment works. I know unbundling may threaten many offerings. But the current costs of cable are absurd and the best content is on just a few channels. I don’t think the new golden age of T.V. will suffer in this new world. It could grow as more people are reached with niche shows (that is how I see things like Breaking Bad and other winners that don’t need huge viewership to succeed). Subscriber shows should be a real thing soon. As I said before, Firefly could have been saved today, because enough viewers would likely have fronted the costs to get a 10-13 episode season. Add in many have the patience to just buy the series and binge, or stream on Netflix or Amazon or HBO, and maybe shorting cable companies is smart.

0

3D Printed Cars: The Model T Redux?

3D printed cars were a growing possibility while I researched Patents, Meet Napster: 3D Printing and the Digitization of Things. Now a company discussed in the article, Local Motors, has exceeded expectations in a wonderful way. It has produced a 3D printed car in a total of five days. The car, called the Strati, weighs about 2,200 pounds and can go about forty miles per hour. The expected retail price is $20,000. Now that seems less cool. But here is the really good stuff.

The design time and total number of parts is super low. Apparently, the design started in May and was complete four months later. Total number of parts 49 compared to 5,000 for a standard car. As one of the engineers, James Earl, put it in the article: “The thing that this lends most to is customisation-ality, [sic] so you can get a car that really suits your needs with very little monetary input from the design side.” These facts, if they hold up, are why car makers, or at least auto-parts suppliers may be excited or scared out of their minds.

We now have customized cars, with few parts, at a low cost. Let’s assume the cost could go down if the company scales up. Let’s also assume that some of these techniques are incorporated into other auto-maker’s manufacturing. The vast array of auto-suppliers that were in deep trouble when Detroit took a dive could soon be unnecessary. That network of industries Detroit supports could shrink and, in essence, vanish. At the same time, if India’s Tata Corporation, which aims to make low-cost cars for the growing middle class in India, jumps in, Local Motors could find a partner with cash to go big with its technology. High-end makers may allow for bespoke BMWs or Jaguars. Really tall or short people could have cars custom-built to their height and sight lines. Then again, Google may want the tech for its golf cart-like self-driving cars. Lots of possibilities, yes? That’s the point. Something amazing is bubbling up and fast. Which brings me to another point.

Sometimes when I presented the paper, there’d the law professor response of “I just don’t think the tech is there yet.” That view missed what motivated the paper. For once, I wanted to be ahead of the curve on law and technology. Being at Google solidified my view that one can assume the tech will come. “Whether 3D printing will realize all the dreams it currently inspires is not the question” is part of how the article engaged with this point. Local Motors and cars. 3D printed guns. The dreams or nightmares are coming true. Expect some incumbents to fight, some to fear monger, and some to embrace the change. As I offer in The New Steam: On Digitization, Decentralization, and Disruption “this era of disruption and decentralization will likely pass and new winners, who will look much like firms of old, will emerge, if they have not already.” For now, the car-world could be plunging into the disruption and decentralization phase. As Local Motors and others ramp up their factories and break through the regulatory issues, new players may find it harder to play. Until then, let the games begin!

2

One More Thing on Redistricting . . .

The Court has held that a state can use a referendum as part of its redistricting process.  See Davis v. Hildebrandt, 241 U.S. 565 (1916).  In Davis, a referendum was used to reject a redistricting plan drawn up by the Ohio Legislature.  Thus, one cannot say that Article One, Section 4 prohibits states from using a referendum to limit the Legislature in this context.  Maybe the Legislature must be the one to draft the redistricting plan–the difference in the Arizona case is that the Legislature is not permitted to draft anything.  But clearly the Legislature does not have the exclusive power to redistrict or the final say over redistricting.  Is drafting really so different?

4

The Law of the Land

I thought I would flag the fact that Akhil Amar has a new book coming out that is available for pre-order on Amazon.  Here is the summary of The Law of the Land:  A Grand Tour of Our Constitutional Republic:

From Illinois to Alabama, and from Florida to Utah, our laws and legal debates arise from distinctive local settings within our vast and varied nation. As the renowned scholar Akhil Amar explains, Abraham Lincoln’s argument against the legality of succession can be traced to his Midwestern upbringing, just as a close look at the Florida legislature and state Supreme Court reveals the fundamental wrongness of the Bush v. Gore decision.

Amar profiles Alabama’s Hugo Black, the dominant constitutional jurist of the twentieth century, and California’s Anthony Kennedy, the powerful swing justice on the current Court. He probes Brown v. Board of Education, and explores the divisiveness of the Second and Fourth Amendments. An expert guide to America’s constitutional landscape, Amar sheds new light on American history and politics and shows how America’s legal tradition unites a vast and disparate land.

stairway-to-heaven-1319562-m-720x340
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FAN 36 (First Amendment News) Forgotten Free Press Advocates — The Women Lawyers in NYT v. Sullivan

These three women were active in ACLU First Amendment work during those early years and had an enormously powerful and lasting impact on the law we enjoy today. — Joel Gora (longtime ACLU lawyer)

The news follows, but before it does I want to say a few words about three remarkable women and their roles in New York Times Co. v. Sullivan (1964). They are:

  1. Harriet Pilpel (1911-1991)
  2. Nanette Dembitz (1913-1989)
  3. Nancy F. Wechsler (1916-2009)
Harriet Fleischl Pilpel

Harriet Fleischl Pilpel

Among others places, you will find their names on the cover of the ACLU amicus brief filed in the Supreme Court on September 9, 1963 in the Sullivan case. Beyond the single sentence they receive in the Supreme Court Reports and in Anthony Lewis’ Make No Law: The Sullivan Case and the First Amendment (1991), the women are virtually unknown players in the First Amendment world. As their respective stories reveal, there is more, much more, to be said about the people in the landmark case and how it came to be so. (BTW: Doris Wechsler — the wife of Herbert Wechsler, the attorney for the Times — helped write the merits brief in Sullivan and is listed on it. She sat in the lawyers’ section when Sullivan was argued in the Supreme Court.)

Recently, I had occasion to say a few words about some of those people in connection with a conference hosted by the University of Oregon School of Journalism and Communications and the Law School, a conference to commemorate the 50th anniversary of Sullivan. That is how I came upon the ACLU brief filed in Sullivan.

The lead attorneys for the ACLU and the New York Civil Liberties Union were Edward S. Greenbaum (of the famed Greenbaum, Wolff & Ernst firm) and Harriet Pilpel. Melvin L. Wulf, Nanette Dembitz, and Nancy Wechsler were of counsel.

Here is how things began: Mel Wulf, the ACLU attorney, contacted Greenbaum and asked if his firm would file a brief on behalf of ACLU. Greenbaum agreed and, as Wulf recalls, Nancy Wechsler wrote the first draft along with help from Harriet Pilpel. Nanette Dembitz added her own comments, whereafter Wulf did the final read and edit. Greenbaum, the lead attorney, had little or no meaningful input on the brief. The ACLU brief was 37 pages long (plus appendix) and made three basic arguments:

  1. Alabama’s exercise of its long-arm jurisdiction over the Petitioners violated the First Amendment and the due process clause of the Fourteenth Amendment
  2. Alabama’s defamation law as applied to criticism of public officials on matters of public concern violated the First Amendment as applied to the states by way of the Fourteenth Amendment
  3. The trial judge denied the Petitioners due process of law and equal protection of the laws as guaranteed by the Fourteenth Amendment

Those arguments were teased in a variety of ways — e.g., Alabama’s use of its defamation laws was analogous to the Alien and Sedition acts; there was no reasonable basis for presuming malice or damages; and the trial was so rife with racial prejudice against the Petitioners as to deny them equal protection. More could be said about the brief, but for now let me leave it there so as to return to my sketch of the three women who contributed to the ACLU brief.

 Harriet Pilpel was an accomplished public-interest advocate with sterling credentials: A graduate of Vassar College and Columbia Law School (1936, second in her class), she went to wotk for the firm of Greenbaum, Wolf & Ernst. Later, she served as general counsel for both the ACLU (1979-1986) and Planned Parenthood. In 1982 she joined the law firm of Weil, Gotshal & Manges. During her career, she participated in 27 cases that came before the Supreme Court. She argued on behalf of Planned Parenthood in Poe v. Ulman (1961). She wrote yet other briefs for Planned Parenthood in cases such as Griswod v. Connecticut (1964, with Nancy Wechsler), Roe v. Wade (1973, with Nancy Wechsler), and Carey v. Population Services International (1977). Pilpel was also on the briefs for the Appellees in Harris v. McRae (1980).

In the free speech context, Pilpel was co-counsel with Edward Greenbaum in Farmers Union v. WDAY (1959), a statutory interpretation defamation case.

Harriet was very helpful in supporting my initial run for the ACLU National Board of Directors (a very competitive process), and she also debated Catharine MacKinnon about pornography at an ACLU Biennial Conference.Nadine Strossen

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1

To Sarat or Not Sarat

As in Austin Sarat, Law and Humanities scholar at Amherst College.  As in one of the leading figures within the Association of Law Culture and Humanities, which has become one of my favorite destinations over the years for engaging discussion across the disciplines.  (FYI, today is the deadline to submit abstracts to the Law Culture and Humanities Conference being held at Georgetown this year).
Glancing across Sarat’s scholarship one might notice a fascination with documenting the morbidity of law.  Images of war, death, and imprisonment filter the landscape of writings; the images are used to magnify their contrast. They create discourses in binaries.  We understand legal violence distinctive from non-legal violence; death distinctive from non-death; and imprisonment distinctive from non-prisoned life.  Sarat sums this up in his Article Violence, Democracy, Responsibility, and the Problem of Punishment.

 

Moreover, by equating the conditions of legal legitimacy with that masking, much of that jurisprudence promotes righteous indifference and allows law’s violence to continue unabated. I am neither so idealistic nor so naive as to imagine that a change in legal theory would in itself end violence done, authorized or approved by legal institutions and officials. Still the energy in much of my work on punishment comes from a desire to interrogate legal theory in order to understand how law, surrounded by so much pain, is, nonetheless, able to maintain its calm, bureaucratic facade.

 

Drawing on themes that prompt considerations of justice and violence, it’s no wonder that Sarat and Robert Cover were walking the same halls in New Haven in the early 1980’s.  I don’t know if Sarat and Cover interacted much.  Really, does it matter?  Sarat himself was a well accomplished scholar in the humanities prior to enrolling at Yale (I mean how many of us as one L’s had their professor begin a civil procedure class by reading and discussing our own work?) .  Perhaps he and Cover never interacted.  I’d like to think they didn’t but that the recursiveness of space, time and ideas latched on to them independently as they traveled the halls.

Besides violence, Sarat’s scholarship prompts me to think about similar themes in my own work.   Loneliness has been a particular theme of mine.  Robert Penn Warren, Fydor Dostovsky, and Flannery O’Connor have been shaping devices of this theme.  They play themselves out in a chorus of questions about space, roles, isolation, and time.  When Warren writes about the South as a Lonely place, he prompts me to wonder whether and how time shapes people.  For those three, time is the violence of memory, sometimes maintained through static relationships of property, law, family, and culture.  Sarat likewise prompts us to consider how time shapes our understandings of justice and violence.  He writes in the same article prompted above:

For me, democracy requires a particular orientation toward time. Democratic temporality is the time of change, of reconsideration. It is open-ended and open to a sense of the endlessness of time. Acts of punishment, even if we had a way of calculating what people deserve, are always in some sense the servants, not the masters, of time. Numerous authors have highlighted the problem of time in asking whether the person being subject to punishment, 2, or 12, or 20 years after the crime is really the same person as the one who committed the crime that justified the punishment in the first place. When, many years ago, Justice Brennan described the death penalty as taking away the right to have rights, he might well have said that no punishment that seeks to be timeless, or stop the movement of time, can be reconciled with a democratic theory of punishment.

The conception of time as a marker of change is one, I think Robert Penn Warren would greatly admire.  On May 15, 1961, The New Republic published a review of Warren’s essay The Legacy of the Civil War.  In the review essay, writer Peter d’a Jones aligned Warrens views with Robert Patterson of the Citizens Counsel of Mississippi, a group formed following the Supreme Court’s decision in Brown v. Board of Education.  The group, put simply, was designed to use legal (and non-legal) violence to stymie desegregation.
Following the review of Warren’s essay, Warren wrote a letter to the New Republic editor:

Dear Sir,

This letter is promoted by a review of my essay the Legacy of the Civil War, which appeared in your issue of May 15.  I could wish that Mr. Peter d’a Jones had thought better of my essay or at least of my intellectual integrity, but I am not now writing in defense of either.  What I want to do here is disabuse those readers who may feel, from Mr. Jones’ review that I have much sympathy with Mr. Robert Patterson of the Citizens’ Committee of Mississippi, whom he cites with, perhaps, some effect of guilt by association.  

The quickest thing for me to do is state three things — things which it is strange for any citizen to feel constrained to state.

1 It is morally right, as well as politically and economically necessary, that all the rights and privileges of American citizenship be guaranteed to all citizens.  
2 A man’s worth should be judged by the qualities of his manhood.
3 Any official of any state who does not honestly and vigorously endeavor to punish, with full rigor, any violence against or coercion of any individual or group has violated his public trust and should be impeached.  

I suppose that a reader can easily infer from these statements my attitude in specific instances, as I had assumed one might from other writings of mine, including the Legacy of the Civil War; but I shall add that I think Dr. Martin Luther King a great man, and that the sit ins conducted according to his principles are morally unassailable, and will win.  One reason they will win is that they offer, even to the man howling from the sidewalk, an exhibition of courage, dignity, and self control.  

                        Very Respectfully Yours,

                        Robert Penn Warren

P.S.  One more thing: since Mr. Jones takes the trouble to quote from me in 1929, I wish he had taken the trouble in his researches to glance at my explicit repudiation some time back, of what I said in 1929.  In 1929, in my youth, I was wrong — and even now, I do not feel myself entirely above error.  

Warren’s reflection of change over time merges with his views of social responsibility.   For what its worth, Warren was also wandering around New Haven in the early 1980’s.  How I would enjoy sitting at a table amongst Warren, Sarat and Cover as they talked about these things.  How the walls in New Haven must have been ablaze with ideas in the early 80’s.

(P.S. Robert Patterson was also former Captain of the Mississippi State football team — ergo my promised college football reference, in case anyone needed an irrational reason to hate the number one ranked team).

4

More on Arizona State Legislature–Reply to Mike Ramsey

The always insightful Mike Ramsey has posted about my posts about the Arizona State Legislature case.  I thought I would offer a couple of further comments.

In several places the Constitution clearly says that only “the Legislature” can do something.  For the regulation of congressional districts, though, the Constitution says that “[T]he Times, Places, and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof.”  I submit that this is not clear as Mike suggests.  Why is that?  Because governors have always had the power to veto redistricting plans (as the Supreme Court held in Smiley v. Holm and as the practice was going back to the Founding), whereas they have not had the power to veto, for example, ratifications of constitutional amendments under Article V.  As a result, Article I, Section IV must mean “prescribed in each State by the Legislature thereof” consistent with the lawmaking process set forth in the state constitution.

Does this principle include a state constitution that drastically reduces the Legislature’s role in an unprecedented way?  I’m not sure.  The Arizona scheme may go too far given the text and the Court’s holding in Holm, but I don’t see an originalist ground to object.  Were the Framers opposed to state referenda for regulating elections?  I doubt that you can find any evidence for that.  In that sort of vacuum, I think it is relevant to point out the policy implications of saying that the remedy for partisan gerrymandering lies only with the legislature doing the partisan gerrymandering.  That is not, as Mike says, “purely an argument from policy.”  Moreover, Congress could have exercised its Article I, Section 4 powers to bar independent commissions mandated by a state constitution for redistricting.  It has not done so.  A judicial decision doing so would (as I said in my last post) create a “Dormant Elections Clause,” which I do not think is consistent with any original understanding.

All of this leads me to the conclusion (albeit marginally) that the Arizona plan is constitutional.  What would change my mind?  Probably learning something relevant about the history of state regulation of redistricting or the reasons behind the Framers’ choice to give Congress and state legislatures joint ownership over this power.  So we’ll see what the briefs have to say.