Can legal formalism help save democracy? That is a question posed by a very interesting draft paper posted by Will Baude of the University of Chicago last week, “The Real Enemies of Democracy.” Baude’s paper is a response to Pam Karlan’s 2020 Jorde Symposium lecture, “The New Countermajoritarian Difficulty,” in which Karlan laments the recent Supreme Court’s failure to take action against anti-majoritarian forces that dilute the votes of, or outright disenfranchise, millions: the Electoral College, the filibuster, campaign finance, gerrymandering, and anti-suffrage laws.
But Baude has his eyes set on a different horizon: “I worry that democracy faces far worse enemies than the Senate, the Electoral College, or the Supreme Court. Those enemies are the ones who resist the peaceful transfer of power, or subvert the hard-wired law of succession in office.” And he suggests a different bulwark to hold them back: “The shield against them may be more formalism, not less.”
I agree with Baude’s sense of the threats, but I think the hope that formalism—or even the rule of law generally—will save us is misplaced. It was often said of the Soviet Union that it had an extremely rights-protective constitution; better than that of the United States, even. But of course the problem was that the Communist Party was not really bound by it. Formal guarantees mean nothing with the will to back them up. Law without faith is dead. Continue reading “Democracy’s Self-Perpetuating Illusion”
Our Student Guest Blogger for October is 2L Liz Simonis. Originally from Milwaukee, Liz spent five years working in agriculture around the Midwest before moving back to the Cream City. Her legal interests are primarily in intellectual property and corporate law, but after spending six months in China, she has developed an interest in water law as well, including its ability to influence international relations. Liz has recently been awarded the AWL Foundation Scholarship by the Association for Women Lawyers. Congratulations Liz!
Former student guest blogger and current 2L Monica Reida recently appeared on Ipse Dixit, a podcast on legal scholarship that has a wide audience among law professors, to discuss their fascinating new paper, You Must Roll 18 or Higher for Your Claims to Succeed: Common Law Trademarks, Unauthorized Merchandise, and the Podcast “The Adventure Zone”. You can listen to the podcast episode here. Monica is returning to the Faculty Blog for a couple of posts about the paper, which is available now on SSRN. Congratulations Monica!
Our student guest blogger for August is 3L Robert Maniak. Robert was born and raised in Saint Paul, Minnesota, and after high school enlisted in the Marine Corps. He and his wife Gina were recently married in June, with relatives “Zoom-ing” into the ceremony. After graduation, he is interested in pursuing a career in civil litigation in Wisconsin. Welcome Robert!
Our student guest blogger for January is 1L Robert Ernest. Before attending law school, Robert worked in youth ministry and ran his own business renting out bounce houses. He has a B.A. in philosophy from the University of St. Thomas, and in his free time enjoys traveling, cooking, hiking, and rock climbing. Welcome Robert!
Our Student Guest Blogger for December is 1L Monica Reida. Prior to going to law school, Monica worked as a journalist, contributing to Barista Magazine, OnMilwaukee, NewCity, and Gapers Block, where she was the politics editor from 2013-2015. She has a B.A. in journalism from Michigan State University, with a concentration in public affairs reporting. Monica is also the author of a chapter in the recently-released book Midwest Architecture Journeys, edited by Zach Mortice and published by Belt Publishing. According to the publisher, Midwest Architecture Journeys contains “dozens of essays written by architects, critics, and journalists” that “take[ ] readers on a trip to visit some of the region’s most inventive buildings,” but also “includes stops at less obvious but equally daring and defining sites, such as indigenous mounds, grain silos, parking lots, flea markets, and abandoned warehouses.” Monica’s chapter, “Please Return Again,” is about the public library in Waterloo, Iowa. We’re looking forward to hearing more about the chapter and Monica’s experience in getting it published. Welcome, Monica!
Our alumni guest blogger for the month of November is Joe Riepenhoff, L’14, who is appearing for a return engagement, having been a student guest blogger back in October 2012. While at Marquette, Joe was a student advisory board member for the Marquette Volunteer Legal Clinic, an intern for the Waukesha County Circuit Court criminal division judges, and research assistant for Prof. Daniel Blinka. Since graduating he has worked as a staff attorney for the Wisconsin State Public Defender Office, a conflicts analysts at Foley and Lardner, and is now a staff attorney at the Legal Aid Society of Milwaukee.
Welcome back to the Faculty Blog, Joe!
In the 1950s the active bench of the Second Circuit experienced nearly a complete turnover, one that changed how the judges approach copyright law.
There’s an old joke about scientific progress: that science advances one funeral at a time. The same might be said about judicial philosophies. Some judges might be persuaded to change their views over time, but it is just as likely, if not more, that change occurs through a changing of the guard. So it was with the Second Circuit in the 1960s. The Second Circuit had had a remarkably stable bench during the 1940s, when Learned Hand was the chief judge. Four of them, Hand, Hand’s cousin Augustus, Harrie Chase, and Thomas Swan served together in active or senior status for twenty-five years, from 1929 to 1954. The remaining two, Charles Clark and Jerome Frank, were with them from 1940 on.
But within six years in the 1950s, the active bench of the Second Circuit experienced nearly a complete turnover, except for Clark. The new judges, who included Henry Friendly, J. Edward Lumbard, Irving Kaufman, and Thurgood Marshall, obviously had different educational and professional experiences from those of the judges they replaced. What truly distinguished the new group, however, is that they had a very different approach to judicial decisionmaking, and in particular the proper role of discretion. No longer were the Second Circuit judges comfortable with leaving important substantive decisions on the merits of a claim to case-by-case equitable balancing. In the 1960s, the Second Circuit began crafting multi-part tests to replace the vague standards that had come before, to force lower courts and later panels to elaborate the reasons for their decisions. Whether they consciously subscribed to it or not, the new judges were heavily influenced by Legal Process ideology. Continue reading “The Legal Process Sea-Change”
Learned Hand wasn’t as skeptical of a court’s ability to decide issues of fair use and substantial similarity as he is often portrayed.
Possibly no judge had a greater influence on copyright law in the twentieth century than Learned Hand. Nichols v. Universal Pictures and Peter Pan Fabrics are foundational cases in most textbooks; Sheldon v. MGM and Fred Fisher v. Dillingham used to be. And although he did not write the opinion, Hand was on the panel that decided Arnstein v. Porter.
Part of the reason for Hand’s enduring popularity is that he was a brilliant writer, and his aphorisms about copyright law continue to appeal to a skeptical age. In Nichols, he famously declared with respect to the distinction between uncopyrightable idea and copyrightable expression, “Nobody has ever been able to fix that boundary, and nobody ever can.” In Shipman v. RKO Pictures: “The test is necessarily vague and nothing more definite can be said about it.” In Dellar v. Samuel Goldwyn, Inc., decided per curiam but attributed to Hand: “[T]he issue of fair use … is the most troublesome in the whole law of copyright.” In Peter Pan Fabrics v. Martin Weiner Corp.: “The test for infringement of a copyright is of necessity vague…. In the case of designs, which are addressed to the aesthetic sensibilities of an observer, the test is, if possible, even more intangible.”
To modern ears, these sound like (and are often quoted as) criticisms of copyright law. A vague, ineffable test is an unworkable test, one that offers no guidance to lower courts or juries and is therefore hardly better than no test at all. But to read Hand in this way to read him anachronistically. Continue reading “Learned Hand: You’re Reading Him Wrong”
The concept of substantial similarity, never clear to begin with, got even more confusing once juries started playing a larger role in copyright infringement suits.
A few weeks ago the 9th Circuit issued its decision in the long-awaited “Blurred Lines” case, Williams v. Gaye, and the reaction has generally ranged between dismay and anger. Here is a quick summary of the decision. The consensus among copyright lawyers, with some exceptions, appears to be that the original jury verdict against Pharrell Williams and Robin Thicke threatens to make musical styles copyrightable, that the majority on appeal got the law wrong, and that the dissent is correct that the jury verdict should have been reversed.
I disagree with some of that, but I want to take this post in a different direction. I’ve been doing a lot of thinking and reading lately about the development of the test for copyright infringement over the course of the 20th century. Williams v. Gaye is, I believe, merely the predictable outcome of the 9th Circuit’s approach to proving copyright infringement, an approach that copyright scholars have been complaining about for a long time. But it’s worse than that. As Rick Sanders spelled out in a recent post, all of the modern tests for proving infringement by copying are deeply problematic. What is particularly intriguing with the Williams case is that the approach the dissent seems to be recommending actually pre-dates the modern caselaw. It’s the one that the modern test — first spelled out in detail by the Second Circuit in Arnstein v. Porter — was designed to replace. Look at the cases the dissenter, Judge Nguyen, cites—many of them were decided before Arnstein. And although I agree with the Williams majority’s assessment of the lack of support for the dissent’s argument, I think it’s no accident it has resurfaced.
A warning for non-IP-interested readers: this is going to be a long, hard slog through the weeds of copyright law, maybe several long hard slogs. I also have some things to say along the way about the development of the law generally over the last hundred years. But consider yourself warned. Continue reading “Copyright’s Substantial Confusion”
The Fall semester is underway here at the Law School, and I would like to welcome as our student guest blogger for September 3L Ashley Heard. Ashley is originally from New Berlin, Wisconsin, and is interested in employment law and appellate litigation. Her undergraduate education focused on marketing, graphic design and photography, and religious studies.
I am pleased to announce that our guest Alumni Blogger for March is Ryan Murphy ’04. Ryan is the General Counsel at Edgerton Contractors, Inc., and is also an adjunct professor in the College of Engineering, where he teaches Engineering Law to senior- and graduate-level students.
Many thanks to our previous guests, Jason Roberts ’10 and 3L Steven Wah.