Failure of Courts

Larry Lessig's candid meditations on the recent Supreme Court decision against the public domain in Eldred v. Ashcroft offer a fascinating look into the mind of a Constitutional lawyer of international repute. Lessig is understandably disappointed in the Court's decision, and it seems he's doing some soul-searching to reassess how he feels about the law, the courts, and the principles that have motivated him thus far:

But as I read these opinions, I realize the hardest part for me is elsewhere. I have spent more than a decade of my life teaching constitutional law—and teaching it in a particularly unfashionable way. As any of my students will attest, my aim is always to say that we should try to understand what the court does in a consistently principled way. We should learn to read what the court does, not as the actions of politicians, but as people who are applying the law as principle, in as principled a manner as they can. There are exceptions, no doubt. And especially in times of crisis, one must expect mistakes. But as OJ’s trial is not a measure of the jury system, Bush v. Gore is not a measure of the Supreme Court. It is the ordinary case one needs to explain. And explain it as a matter of principle.

I’m not sure how to do that here. I don’t see what the argument is that would show why it is the Court’s role to police Congress’s power to protect states, but not to protect the public domain. I don’t see the argument, and none of the five made it. Nor have any of the advocates on the other side identified what that principle is.

As someone who plans to start law school in the fall (if someone would just let me in ferchrissake!) and who has read Lessig's The Future of Ideas, it's a little difficult to watch Lessig's disillusionment. He talks about being naive, but could anyone really think the law was a matter of principle and not, at the same time, a matter of politics? Do Constitutional lawyers really teach (and believe) that the Supreme Court somehow functions on a higher plane than the rest of the world, a plane where there is always a valid and just reason for all decision/actions? I suppose something like that is necessary if people are going to accept that the Court's decisions are pretty much the last word on the contentious issues in our society, but it seems pretty clearly to be another in the many fantasies that compose our national self-narrative (i.e.: "Everyone has an equal chance to succeed in America!" "America is always working for greater peace, justice and democracy in the world! "The Supreme Court makes decisions on principle, not politics.")

The comments to Lessig's post help put it into context. Since the individual comments don't have permalinks, I'll post a bit from my favorite here: After reminding us that we live in a country in which the President can declare a "Sanctity of Life Day" despite Roe v. Wade, a country in which citizens can become "enemy combatants" and lose virtually all of their rights simply on the government's say-so, and a country whose President was installed by this very Supreme Court, this poster connects the dots:

All along, you’ve treated Copyright as an issue separate from encroaching fascism. But it isn’t: fascism is the union of state and corporate interests.

And that’s the real message of this decision: corporate interests won out over a perfectly valid and good constitutional argument, and this is perfectly in keeping with the times we live in.

Prof., it’s time to come off of the fence: the problem is political, not legal, and it goes far further than just copyright.

This battle is lost. You could turn around and say “well, that was the war, and we lost, and it’s over until the next copyright case”. And that would be ok, valid as far as it goes.

Or you could say “That was the battle, and we lost because the Supreme Court no longer serves the interestes of the people, but has been corruped as have most other branches of our government: by corporate interests and big money. And so, for justice to ve served, we must continue the battle against those interests, until our democracy is restored“.

You’re good enough to make a difference. Rest a while, and then get to work.

Think about that for a minute: "Fascism is the union of state and corporate interests." Does that seem like the world you live in? Why is Bush pushing "tort reform"? Is it to help corporations, or citizens? Why does Bush refuse to participate in the Kyoto Protocol on global warming? Does that help corporations, or citizens? Why have Republicans pushed "deregulation" of nearly everything for years? Does deregulation help corporations, or citizens? Hmmm...

On the question of faith in the legal system, see also the recent case of Bush v. Kucinich, or another case decided by Bush-appointed Federal Judge John Bates in which Bates rejected the General Accounting Office's attempt to subpoena the records of Vice President Dick Cheney's energy task force. Bates appears to be saying that there's almost no way to use the legal system to hold the executive branch accountable for its actions. Imperial presidency, anyone?

But, of course, there's always a vocal contingent in support of the good old American way. According to Jeff Jarvis, the Eldred side in Eldred v. Ashcroft was the "communist" side. I wonder if people like Jarvis have ever considered that an enormous amount of the technology they use to produce their web content is available to them only because it was released to the public domain. Right.

UPDATE: Do you Want to Believe?

Posted January 17, 2003 09:05 AM | law school