Judge Scudder Discusses “Resorting to Courts” in an Exemplary Hallows Lecture

Honorable Michael Y. ScudderThe Hon. Michael Y. Scudder, judge of the U.S. Court of Appeals for the Seventh Circuit, delivered this year’s Hallows Lecture, yesterday evening, to more than 200 individuals in Eckstein Hall’s Lubar Center. The lecture was exemplary.

The E. Harold Hallows Lecture is an annual highlight at Marquette University Law School. Most often delivered by a judge, the lecture is an opportunity to welcome into our community an accomplished individual from whom all of us interested in the law—students, faculty, other judges, lawyers, and all manner of interested individuals—might learn.

This was not Judge Scudder’s first trip to Marquette Law School, as he presided at the Jenkins Honors Moot Court Finals in 2023 (his similar service in 2021, during the COVID era, having been undertaken remotely by Teams). The judge keeps close to law schools, it would seem—for example, teaching national security law at the University of Chicago Law School and advanced federal jurisdiction at the Northwestern University Pritzker School of Law. Judge Scudder’s interest in legal education, especially in the Seventh Circuit’s region of Wisconsin, Illinois, and Indiana, is impressive and inspiring more generally.

Judge Scudder’s Hallows Lecture was titled “Resorting to Courts: Article III Standing as the Guardian of Free Speech & Democratic Self-Governance.” It proceeds in two main parts.

The first half explains and defends the standing requirement in federal courts. The judge describes the precept’s basis in the “Cases” or “Controversies” requirement of Article III of the Constitution, defends it as a structural limitation on the exercise of judicial power, yet acknowledges the ideological lens through which many individuals seem to view standing issues. The lecture offers a defense of the cases and a strong, institutions-based justification of the concept.

The lecture’s second half explores the relationship between the Case or Controversy requirement and free speech. It emphasizes that the standing requirement—particularly by disfavoring pre-enforcement facial challenges to government policies on very broad grounds—appropriately encourages people to hash out their differences in forums envisioned and intended as policy-setting. This half laments the echo chambers into which many individuals have placed themselves in our society and hopes that more open, respectful, and constructive dialogue, outside of courts, can occur to sort out the “cultural” issues and policies needing resolution at all levels of government.

Here’s a flavor:

. . . . This is how Article III’s limitation on the exercise of judicial power leaves policymaking, and the difficult line drawing it often entails, to the exercise of free speech. Speaking up, objecting, and sharing perspectives with those who differ from us is how we understand, persuade, and, often, find common ground where agreement seems beyond reach.

If that framing is too idealistic in today’s times, I would hope skeptics would at least recognize that the alternative—permitting very difficult legal questions to come to federal court based only on a showing of a genuine worry—casts a vote of little confidence in the role speech can play in finding solutions, or perhaps tolerable compromises, to some of the most divisive questions of our day. And even if these culture war lawsuits should not be viewed as a vote of confidence in federal courts as the ultimate decision makers, they put great pressure on principles of restraint designed to allow democratic processes—whether at the national or local level—to offer answers and outlets for persuasion and compromise in the first instance.

Our constitutional design envisions constitutional answers coming in slower-paced increments than contemplated by pre-enforcement facial challenges like the one Parents Protecting Our Children lodged against the Eau Claire policy. It is not happenstance that the architect who designed the Supreme Court, Cass Gilbert, thought the tortoise an appropriate decorative and symbolic feature for the building’s design. In the same way tortoises move slowly, sometimes the law develops best when principles, doctrines, and answers come with time and, I might add, with more speech and dialogue helping to bridge social divides. Pre-enforcement facial challenges, however, often result in expansive injunctions that apply in one fell swoop—the sort of forward-looking policymaking that is best left to the more democratic branches.

Judge Scudder’s lecture was outstanding, even beyond its timeliness. While versions of it will appear in the fall Marquette Law Review and Marquette Lawyer, one can watch the lecture here or read a working copy of it here.

Continue ReadingJudge Scudder Discusses “Resorting to Courts” in an Exemplary Hallows Lecture

Grapes of Roth, Part II: A Sheep in Wolf’s Clothing

[This is the fourth in series of posts summarizing my new article, “The Grapes of Roth.”]
Introduction
Part I-A: Duck-Rabbits in Equity
Part I-B: Counting to 21 Similarities

By the mid-1970s judges in both the Second and Ninth Circuits realized that the “recognizability” standard for copyright infringement determinations was unworkable. As Roth Greeting Cards and International Luggage Registry had demonstrated, mere recognizability swept uncopyrightable as well as copyrightable material into the comparison, and hinged the infringement determination on the faintest suggestion of either. Some test was needed that would allow courts to do all three parts of the difficult balancing act described in Part I-A, in particular the assessment of how much protectable material was taken and whether that amount surpassed some threshold that made it unreasonable. Pre-Legal-Process courts had tackled these questions, but without saying much more than that the defendant had “wrongfully appropriated” the plaintiff’s protected expression, or taken its “aesthetic appeal,” or “justified” an infringement claim. Such openly normative assessments, relying on the judge’s subjective evaluation of the material taken, plainly would not do in a more formalist age. An alternative framework was needed.

Two decisions in rapid succession, one from the Second Circuit and one from the Ninth, latched onto the “total concept and feel” phrase as a way to express an overall level of similarity or dissimilarity in protected expression without openly making a normative or aesthetic judgement. In Reyher v. Children’s Television Workshop (2d Cir. 1976), the Second Circuit considered a claim by the authors of a children’s book based on a simple story: a lost child describes her mother only as “the most beautiful woman in the world,” which delays finding her because the mother does not meet conventional expectations of beauty.  Sesame Street Magazine published a 2-page story that followed the same basic plot, but had different dialog, different illustrations, and was set in a different location. Was it infringing? Certainly the story was recognizable, but in almost every other detail the works were completely different. Reaching for a way to assess the protected expression in the stories holistically, the panel fell upon the empty verbiage from Roth: Given the simplicity of the stories, the court suggested, “we might [also] properly consider the ‘total concept and feel’ of the works in question.” Aside from a similar sequence of events, which the court found to be unprotectable scènes à faire, the remainder of the stories had an entirely different “total feel,” and thus there was no infringement.

The following year, the Ninth Circuit found its way back to the Roth formulation as well. In Sid & Marty Krofft Television Productions, Inc. v. McDonald’s Corp., the plaintiffs claimed that their children’s television show, “H.R. Pufnstuff,” had been ripped off to make the McDonaldland characters — Grimace, the Hamburgler, Mayor McCheese, etc. The issues were whether the jury verdict of infringement was correct and whether damages had been properly determined. But the opinion started with a long discussion of the proper test for infringement, casting shade — without mentioning any names — on how it had been done up to that point. Merely asking about the similarity between two works — in other words, whether anything from the plaintiff’s work is recognizable in the defendant’s — produces “some untenable results,” the court noted. “Clearly the scope of copyright protection does not go this far. A limiting principle is needed,” namely one that separates out idea from expression and determines only the extent to which there has been copying of the latter.

The court then grandiosely declared, “The test for infringement therefore has been given a new dimension.” Unfortunately, as is well known, that new dimension was a thorough garbling of the Arnstein v. Porter decision from the Second Circuit, a misstep that has thrown Ninth Circuit caselaw for a loop it is still trying to recover from. But after mangling the concept of substantial similarity, the Ninth Circuit had to apply its new framework to the jury verdict below, which had held the McDonald’s characters to infringe the somewhat similar-looking H.R. Pufnstuf characters. Were they? The Ninth Circuit panel agreed with the jury. “It is clear to us that defendants’ works are substantially similar to plaintiffs’.” Why? “They have captured the ‘total concept and feel’ of the Pufnstuf show.”

In both Reyher and Sid & Marty Krofft, the reference to “total concept and feel” allowed the court to express a conclusion as to whether the defendants had taken too much copyrightable expression without specifically identifying what in the plaintiff’s work was expression, what in the defendant’s work was similar or dissimilar, and where the threshold level of similarity lay. “Total concept and feel” was thus a way of summing up all three of the difficult judgments an infringement determination required, and it did so in a way that met modern judicial norms while avoiding the ham-handedness of “recognizability.”

Continue ReadingGrapes of Roth, Part II: A Sheep in Wolf’s Clothing

Grapes of Roth, Part I-B: Counting to 21 Similarities

[This is the third in series of posts summarizing my new article, “The Grapes of Roth.”]
Introduction
Part I-A: Duck-Rabbits in Equity

In yesterday’s post, I summarized how infringement determinations were made in the age of equity, in the early to mid-twentieth century: judges compared the plaintiff’s and defendant’s works as an ordinary observer would, then mentally pared down the similarities by considering only protected expression. Based on that filtered comparison, the judge would arrive at a conclusion about whether the protected similarities were substantial enough to warrant an infringement determination.

That method put a lot of faith in the ability of federal judges to exercise aesthetic, legal, and policy discretion to reliably arrive at just outcomes involving infringement. But by the early 1960s, that faith was waning. Several factors were behind this shift. The first was simply generational: the active bench of the Second Circuit, the leading copyright appellate court in the mid-twentieth century, experienced a nearly complete turnover between 1951 and 1957, and by 1964, all nine active judges had been appointed within the last ten years. Learned Hand and the cadre of judges who served with him–judges who were used to equitable decision-making–were gone, replaced by judges such as Edward Lumbard, Henry Friendly, Irving Kaufman, and Thurgood Marshall. This new generation of judges had a very different conception of the judicial role, one considerably more wary of open exercises of judicial discretion.

There were several reasons for this, many of which are briefly elaborated in my article, and a full account of which could occupy its own article or even a book. I’ll just briefly list them here. Legal realism and Lochnerera judicial review had desanctified the judicial decisionmaking process in the eyes of many. The rise of the administrative state and an explosion of statutes moved the conceptual center of the law away from courts, and away from the common law, and placed it instead with legislatures and statutory text. The Erie decision reinforced that view by locating law in the command of a government, not a transcendent body of principles. Equity was fading as a familiar decision-making procedure. The federal courts and federal caseload exploded, putting pressure on lower courts to better explain their decisions for more efficient review.

The result was a revolution in legal ideology, the foundational axioms of which were encapsulated by a theory that briefly flourished at Harvard Law School in the 1950s and ’60s, and was laid out in a set of teaching materials titled “The Legal Process.” Legal Process theory had two significant components to it. First was the principle of “institutional settlement,” meaning the way in which different sorts of decisions were parceled out to different institutional players. With the rise of statutes and regulations, the content of the law was no longer mostly in the hands of judges, but rather to a large degree was the responsibility of legislatures and administrative agencies. Once it was settled who had primary authority over the content of some provision of law, that institutions decision should govern the other players–including courts. (For more on how “institutional settlement” may have influenced copyright law, see Shyam Balganesh’s article Copyright as Legal Process.)

The second component was the principle of “reasoned elaboration.” Judicial decisions are legitimate, according to this principle, only because they are explained in a series of steps that “build the bridge between the authorities they cite and the results they decree.” The 1960s witnessed a surge of multi-step tests and multi-factor balancing frameworks. Judge Hand’s statement in Sinram v. Pennsylvania R.R. that ultimately every judicial decision rests on fiat was cast aside.

Continue ReadingGrapes of Roth, Part I-B: Counting to 21 Similarities