September 9, 2005
My only Rehnquist post ::
supreme court, narrative, legal — No Tags
2:57 pm
From a legal or historical perspective, I think everything that could be said about Chief Justice Rehnquist has already been said. So I don’t think I can add all that much to either converstation. But I want to take a moment to note that Rehnquist, like me, grew up in Milwaukee, Wisconsin. Although throughout most of his life, William Rehnquist was thought of as a Southwesterner (much like I will be thought of as a Northeasterner—funny, that), his Milwaukeean roots were noted during the funeral service. According to the Milwaukee Journal Sentinel:
The chief justice’s son, James C. Rehnquist, a lawyer from Sharon, Mass., paid homage to his father’s roots. He had traveled little in his youth, the son said, and while in high school, he would visit the Milwaukee bus station, watching buses go to “exotic places” such as Sheboygan and Duluth, Minn.
And for those who think James Rehnquist was joking, clearly you haven’t been to Sheboygan.
July 7, 2005
Congress and the S. Ct: who has the real power? ::
politics, supreme court, legal — No Tags
9:14 am
I was offline all yesterday on a site visit. (That’s a euphemism for saying that I was at a correctional facitily.) So I wasn’t able to post at all. With that in mind, I thought I’d call attention to a post by Daniel Solove over at Balkinization from a couple of days ago, in which he challenged the general assumption that the Supreme Court has significant power to make law. In reality, very few cases even make it to a jury trial, much less to an appeal all the way to the Supreme Court.
By contrast, the real power rests with Congress to make law. Even with some of the most controversial cases of this term (he named Raich and Kelo; I talk about Kelo here), Congress still had the power to intervene, to solve the inaction of the Court in both those cases. As Solove puts it:
Why hasn’t Congress resolved these problems? Where has Congress been? The Court shoulders the blame for not striking down the law in Kelo, but why does Congress get a free pass? Maybe Congress should be placed under the same intense and nasty microscope as the Court has been put under.
It’s a thoughtful piece, worth a read. One of the unfortunate outcomes of focusing attention on the Supreme Court is that it lets Congress off the hook when it comes to solving social and legal problems.
July 2, 2005
What’s Next ::
politics, supreme court, legal — No Tags
4:13 pm
Anyone who thinks the upcoming Supreme Court nomination fight is going to be smooth sailing obviously does not subscribe to liberal mailing lists. From an email sent out from my Senator, Pat Leahy:
This is a momentous time in our nation’s history. The next justice will have enormous influence on a woman’s medical decisions, the rights of workers and consumers, the civil and privacy rights of us all, the enforcement of our environmental laws, how our elections are conducted, and nearly every other aspect of our lives.
We cannot allow the independence of our courts to be threatened by a judicial activist who places personal ideology above the law. The Supreme Court is no place for fringe judges. And the Senate is not a rubber stamp for any president’s nominations.
The main question I have right now is: what effect will the filibuster compromise have over the nominee, no matter who he—or she—is? If the past is any indicator, then the Senate may put up less of a fight than my Senator hopes for. That would be quite unfortunate indeed.
July 1, 2005
It really did happen ::
politics, supreme court, legal — No Tags
10:42 am
But no one seems to have thought it would have turned out this way. The next hour or so will be pretty anticipatory indeed. I’m sure I’ll have more to say once the story develops a bit more.
June 28, 2005
Breyer saves Grokster? ::
supreme court, tech, legal — No Tags
2:56 pm
Yesterday I mentioned that the Court didn’t give the content producers in Grokster what they really wanted, which was an overturning of Sony/Betamax. But as I suggested in that previous post, the unanimous opinion addressed Sony only to make clear that the Ninth Circuit misinterpreted the rule it established.
Reading that section of the unanimous opinion in conjuction with Justice Breyer’s concurrence paints a slightly different picture. Section II of his opinion, Justice Breyer, joined Justices O’Connor and Stevens, make clear “Sony’s rule, as I interpret it, has provided entrepreneurs with needed assurance that they will be shielded from copyright liability as they bring valuable new technologies to market.” He then goes on to make clear why that standard was integral to the advancement of technology since it was decided in 1984.
Justice Breyer’s concurrence reminds me why I like his thinking so much. More thank any other Justice, he understands that our propsperity (by which I mean not just the opportunity to get rich) has depended on the freedom of technological development. And he was true to form in this opinion.
More Grokster ::
supreme court, tech, legal — No Tags
2:39 pm
I thought it might be worthwhile to collect some of the more interesting discussions of the Grokster decisions and post them here. First, from Legal Fiction comes a theory about what the content producers really wanted to see from that case:
The issue in Grokster was defining the proper test for secondary liability for copyright infringement. ...But given the technology of P2P file-sharing, it’s almost impossible to devise a test of secondary liability that reaches Grokster, but doesn’t simultaneously reach software and hardware producers. For instance, let’s say that the Court established secondary liability for the sale of any product known to be used for copyright infringement. Under this test, liability would extend not only to Grokster, but to Microsoft for its Windows software, to Apple for its iPod, and to Dell and the PC industry.
Fair enough. Since the big powers of the tech industry are the ones with all the money, they’re the ones the content producers are going to want to target in civil litigation. But still, I think this opinion creates enough potential fear in small software developers that it will most likely result in certain chilling effect on future software development, if only temprorarily. After all, a small company that has no money must abide by a court’s injuction just as much as an established corporation with loads of cash. From my point of view, this is particularly worrisome, since the best technological innovations have almost invariably come from the small, independent entities who lack capital, a decision that actually discourages such action—or at least establishes a requirement that will cause them to really think about the type of software they’re developing. I think the Court had all of that in mind when it established such a fact-intensive test to determine whether a company is engaged in secondary liability for copyright infringement.
But LF goes on to note:
My fear with Grokster is that it gives the record companies just enough to drag Microsoft into court and get discovery, even if it’s not enough to establish its liability. Souter’s test is a fact-intensive one. Accordingly, even if Microsoft would never be found liable, I suspect that well-paid record industry attorneys could get the case to the discovery stage – in large part because the standard turns so heavily on the facts and subjective intent – which of course, as any record industry attorney would tell you, requires reading tons and tons of internal Microsoft emails.
I don’t share that fear. As far as I’m concerned, one group of thuggish bullies (the MPAA and its attorneys) deserve another (Microsoft).
I have at least one more post on this issue in me today, I think, so stay tuned.
June 27, 2005
Grokster Fallout ::
supreme court, tech, legal — No Tags
11:58 am
PDF of the Grokster opinion, hosted on this site.
OK, so I haven’t scrutinized the opinion yet, but it looks like the Supreme Court’s Grokster decision is bad news for filesharing. But one point of optimism is in order: the Court declined to overrule Sony/Betamax. In the opinion’s main reference to that case, the Court only noted that the Ninth Circuit’s interpretation of the theory of secondary liability. Justice Souter notes only that the Ninth Circuit was mistaken in its interpretation, because it
[converted] the case from one about liability resting on imputed intent to one about liability on any theory. Because Sony did not displace other theories of secondary liability, and because we find below that it was error to grant summary judgment to the companies on MGM’s inducement claim, we do not revisit Sony further, as MGM requests, to add a more quantified description of the point of balance between protection and commerce when liability rests solely on distribution with knowledge that unlawful use will occur. It is enough to note that the Ninth Circuit’s judgment rested on an erroneous understanding of Sony and to leave further consideration of the Sony rule for a day when that may be required.
Phew!
I’m sure in the coming days there were be heavy discussion in the tech law community on the Grokster case. And for those of us who are concerned with overly-expansive copyright law, I think we’ll be discussing what, exactly, this opinion didn’t say.
January 6, 2005
A Different Type of Stephen Breyer ::
weird, supreme court, legal — No Tags
10:23 am
Accoding to Law.com, Justice Stephen Breyer showed up for jury duty in Marlborough, Massachusetts. Although Breyer should be commended for fulfilling his democratic duty, I have to wonder what it would be like for the attorneys who had to argue the case before him. I think it would be hard to think of him as anyhing other than one of the most intelligent, accomplished jurists in this country.
But then again, I don’t think Breyer has had much trial experience (he was a judge on the First Circuit Court of Appeals before being appointed to the Supreme Court). So maybe there wasn’t really all that much difference betweeen him and the other jurors.
