The Legal Process Sea-Change

Illustration of Ariel's Song from The TempestThere’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. 

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Spring in Wisconsin: Slight Chance of Showers with a Great Chance of Heavy Advertising

This semester in Professor Lisa Mazzie’s Advanced Legal Writing: Writing for Law Practice seminar, students are required to write one blog post on a law- or law school-related topic of their choice. Writing blog posts as a lawyer is a great way to practice writing skills, and to do so in a way that allows the writer a little more freedom to showcase his or her own voice, and—eventually for these students—a great way to maintain visibility as a legal professional. Here is one of those blog posts, this one written by 2L Randy Jones.

In Wisconsin, the weather may serve as an indicator of spring. I say “may” because the weather often teases us. Most people would say indicators of spring are pollen or budding of trees, bushes, and flowers. For some, it’s the lake trout (Steelhead) swimming up the rivers to spawn. But a sure indicator is political advertising, even for positions that should not be political. I began to wonder why I am seeing so many advertisements. It seemed to me that everywhere I looked, even scrolling down Facebook, I was being shown an advertisement (subconsciously) telling me to vote for Judge Rebecca Dallet for Supreme Court.

Every spring, Wisconsin has an election. Sometimes the election is for judges, for school board representative, and sometimes for state superintendent. Wisconsin has a problem: voter turnout in Wisconsin primaries has been historically low, even sometimes for a presidential race.

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Learned Hand: You’re Reading Him Wrong

Photo of Judge Learned HandPossibly 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.

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