Same-Sex Marriage as Divorce

supreme courtBack in 2010, I wrote an article (published in January 2011) asking the question of, essentially, what if the states became stuck on the question of whether same-sex couples could get married? What if they divided, half of them banning same-sex marriages as an affront to the dignity of marriage, and half of them insisting upon the right of their citizens to marry someone of the same sex? Would the states be locked into a patchwork quilt of marriage and non-marriage, with married couple’s rights fading in and out of existence as they crossed the country, or was there some way out of the dilemma?

Our system was born federalist in 1789 but has been getting progressively more nationalist ever since. Most issues that divide the country can be resolved in some way at the national level, either by Congress passing a law under its increasingly expansive Commerce or Spending Clause powers, or by the Supreme Court wielding the Bill of Rights and the Due Process or Equal Protection clauses of the Fourteenth Amendment. But that does not cover the universe of potentially divisive issues. Particularly destabilizing are social statuses designated by state law but not one of the “suspect classifications” of the Equal Protection Clause. For example, same-sex marriage.

In my article, I considered a way to resolve the inevitable disputes that would arise if the system became stuck: half the states recognizing same-sex marriage, half not, and the Supreme Court unwilling to extend Equal Protection doctrine to cover sexual orientation. But towards the end, I noted another possible outcome: the dispute over same-sex marriage could follow the path divorce did in the early twentieth century.

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Dreyfus Secret File Released

Alfred-DreyfusSome number of years ago I wrote a lengthy blog post on France’s Dreyfus Affair — a post I was proud of at the time, but seems to have fallen like a tree in a depopulated forest — arguing that the Dreyfus Affair could stand to get more mileage as a metaphor for a judicial system run amok. As I explained in the post, “[t]he Dreyfus Affair is a story about an egregious abuse of the legal system, driven primarily by a powerful current of French antisemitism and by a desire to shield the French military from its own mistakes. It involves procedurally flawed court-martials, secret evidence, conspiracies, theft of government secrets, deportation to a brutal island prison, leaks to the press, leak prosecutions, riots by antisemitic mobs, and a cover-up and whitewash perpetrated at the highest levels of the French military.”

Without recapping the entire story — you can read my post for a synopsis — briefly what happened is that the French military, on discovering evidence of a spy in its midst passing information to the Germans, railroaded a Jewish artillery captain, Alfred Dreyfus, into a conviction, using secret evidence the existence of which was not revealed to Dreyfus or his counsel. The military then steadfastly refused to overturn the conviction even as it became increasingly clear that someone else was the spy, going so far as to warn the spy to be more careful in the future! It’s hard to make stuff like that up, which is why I think the Dreyfus story makes for a useful allegory.

In any event, there is a new development. The historical department of the French Ministry of Defense has placed the secret file used to convict Dreyfus on the web, on a site located at, interestingly enough, www.affairedreyfus.com. (See NY Times story.) If you read French, you can now see for yourself the sketchy evidence used to convict Dreyfus, and the forgeries used later to maintain that conviction. What’s on the affairedreyfus.com site is transcriptions of the original files, which is good, because the originals (available at the links on the bottom of this page) are difficult to read.

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First Sale, “Lawfully Made,” and Copyright Stalking-Horses

The Supreme Court heard oral argument this morning in Kirtsaeng v. John Wiley & Sons, Inc., despite Hurricane Sandy’s imminent arrival and the fact the entire federal government in Washington DC is shut down today. Kirtsaeng is a copyright case raising the issue, argued two years ago in Costco Wholesale Corp. v. Omega, S.A., of whether the first sale doctrine applies to third-party imports of goods manufactured under the authority of the copyright owner abroad. (Costco resulted in a 4-4 affirmance due to Justice Kagan’s recusal.) In more plain English, if someone in the United States purchases legitimate copies of some item abroad that has a copyrighted work somewhere in it, can they import those items into the United States and resell them here without violating the Copyright Act? The specific issue in Kirtsaeng involves used textbooks, but it could just as easily apply to watches with a copyrighted logo on the back (the good at issue in Omega), shampoo with a copyrighted label on the bottle (Quality King v. L’Anza), or any product with copyrighted software in it.

Costco indicates the mischief that could come about from a holding saying that the first sale doctrine does not apply to imported goods. There is zero chance that Omega was actually concerned about the redistribution of its copyrighted logo, located inconspicuously on the backs of its watches, as opposed to the grey market arbitrage of the watches themselves, which of course are not copyrightable. But mischief that does not rise to a constitutional level doesn’t tell us what the law is. The arguments in Kirtsaeng focus on the meaning of the phrase “lawfully made under this title.” Section 109(a) provides that:

Notwithstanding the provisions of section 106(3), the owner of a particular copy or phonorecord lawfully made under this title, or any person authorized by such owner, is entitled, without the authority of the copyright owner, to sell or otherwise dispose of the possession of that copy or phonorecord.

Kirtsaeng, the petitioner, argues that “lawfully made under this title” means “made with the authority of the copyright owners as required by Title 17, or otherwise authorized by specific provisions of Title 17,” a theory Kirtsaeng borrows from the Solicitor General’s brief back in Quality King. Wiley argues that because Title 17 does not have extraterritorial application, “lawfully made under this title” must mean “lawfully made in the United States pursuant to Title 17.”

That’s the question that cert. was granted on, but the whole debate strikes me as off-target. As a result I don’t think either side’s briefs really grapple with the problem here.

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