Man Without Qualities

Tuesday, October 15, 2002

Nino Pro Bono?

Professor Lessig, the lead lawyer in the current attempt to overturn the Bono Act, described his Supreme Court effort as follows:

Our aim from the start was to get this Court to view this case in the same frame that they viewed another important line of cases limiting Congress's power -- the commerce clause. In those cases, the Court has said, ours is a constitution of enumerated powers (i.e., the only powers congress has are the powers the constitution gives it); it follows that Congress's power must therefore be interpreted in a way that is limited; in the context of the Commerce Power, the government had argued for a standard (Congress can regulate anything that "affects" interstate commerce) that essentially meant it had no limit; therefore, in a line of cases beginning with Lopez, the Court said we need a different interpretation of "commerce" that actually recognizes limits. Limits, not control of Congress's discretion. Congress has discretion within the limits set by the constitution; but it has no discretion over what, or where, the limits sit.

We want the Court to think in the same way about the Copyright Clause. As Judge Sentelle argued in dissent in the Court of Appeals, the Copyright Clause too is an enumerated power. It too therefore must have limits. But under the government's interpretation of that clause, "limited times" has no limits. Under its interpretation, Congress has a perpetual power to extend subsisting terms. Thus, under the Lopez-line of reasoning, that interpretation must be wrong. Instead, we wanted the court to adopt one of the plain meanings of the term "limited" (limited as in limited edition print) that would also produce an effective limit on Congress's power (that it could not extend existing terms) and would also achieve the ends that the framers sought to achieve (no continuing incentive of Congress to reward, as the Supreme Court said in Graham, "court favorites," but instead to create an incentive for "new" creativity only).

In my view, it is most unlikely that Professor Lessig's approach will work with Justice Scalia. The parallel with the Commerce Clause is completely misleading. The Commerce Clause was given its plain meaning by the Supreme Court until the 1930's. Since then, it has metastasized - almost beyond all limits - making a virtual mockery of the "limited powers" supposedly embodied in the original Constitution. Justice Scalia has been sympathetic to some recent and rather modest attempts to restrict that boundless expansion - the Lopez line of cases among them.

There is no corresponding problem with the Copyright Clause. That Clause has not expanded beyond its plain meaning - which allows Congress to create "limited" copyright monopolies. Whatever else it is, 70 years is "limited," indeed it is notably less than the average life expectancy of people being born in the United States today. The Clause does not impose any particular limit. The Framers could very easily have written "limited periods less than 50 years" or some other fixed limit, or the Framers could have written "limited periods chosen so that a dollar, discounted to the present from the end of such period using an interest rate that seems more or less normal to people reading the Sunday papers or to a bunch of professors of economics, is worth at least $.05." But the Framers didn't do that. And as long as the Congress has a rational basis for arguing that its chosen limit is not equivalent to an unlimited period - and that argument is not difficult to make in this case - what Congress stipulates is, in fact, the law.

Of all the current Justices, Justice Scalia is perhaps the least sympathetic to proposals to import trendy or extraneous materials - such as Professor Lessig's interest rate dependent arguments - into the Constitution. He has recently referred to the Constitution as "dead" or, as he expressly rephrased the point in his preferred fashion, "enduring." He has railed against the Court's references to professional associations and public opinion polls to determine whether a "consensus" against the morality of executing young or mentally retarded criminals has developed, and instead directed the Court to the actual actions of elected legislatures. I believe that Justice Scalia will hardly pause over Professor Lessig's interest-rate-driven arguments, but he will be interested in whether there is any evidence of whether 1790 Congress or the 1976 Congress or the Court ever thought Professor Lessig's interest rates mattered before. But these arguments seem entirely novel. That novelty and lack of precedent will weigh very heavily against Professor Lessig in Justice Scalia's mind. And I see absolutely nothing sufficient to counteract that effect.

Many people have formed the entirely incorrect impression of Justice Scalia as desiring to limit the federal government in whatever way possible. That is dead wrong, and the Lopez cases do not speak of any such desire or tendency. Rather, Justice Scalia values the Constitutional structure as set out in its own words as informed by its own precedent. The modern Commerce Clause cases go way beyond that, and he is prepared to do what he can in that troubled area. But as Justice Scalia has sometimes pointed out in public: "Some modern conservatives need to understand that the Framers thought the federal government was a good idea!"

In my view, Professor Lessig has a likely and formidable opponent in Justice Scalia. In short, I expect Nino is Pro Bono. I understand from media reports that Justice Scalia asked no questions of Professor Lessig during oral argument. Professor Lessig should not count that as a good sign.

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