RE: More Re: ELDRED

From: Chris Mohr <chrismohr[_at_]sprintmail.com>
Date: Tue, 28 Jan 2003 09:49:59 -0500

If that was the point of the article, then, though I almost never agree with Tyler ;), but on this one he's right. The cases where the court strikes down statutes involve a triangulation between two countervailing interests, with the Court in the middle. First, there are the decisions where the Federal government imposes on the power of the states (Lopez, Morrison, and College Savings). Second, there are cases where the state (or feds) crib the rights of the individual. The third involves separation of powers--where, for example, Congress impermissibly delegates judicial power to a federal agency.

 None of those concerns were present in this case, despite petitioners' attempts to portray them as implicated. The court is definitely activist in the states' rights area, but those interests weren't implicated here. The C Clause is entirely federal; the states generally have no 'interest' at stake in the constitutionality of federal copyright legislation. The commerce clause cases are therefore irrelevant; this is more analogous to a challenge to a taxation statute as not being for the general welfare. (Petitioners effectively conceded their individual rights argument by failing to articulate a First Amendment rationale outside of their copyright clause challenge.). I'm sure Ginsburg gladly put in the language about the Boerne test into the opinion, but that's because it limited that test to the states' rights area--where it belongs (if it belongs anywhere).

The decision struck me as neither wrong, surprising, nor inconsistent with prior precedent. Lots of folks don't like it, but I think it's incorrect to characterize it as an aberration.

-----Original Message-----
From: owner-cni-copyright[_at_]cni.org [mailto:owner-cni-copyright[_at_]cni.org] On Behalf Of Chris Sprigman
Sent: Monday, January 27, 2003 6:03 PM
To: Multiple recipients of list
Subject: Re: More Re: ELDRED

Tyler: When the conservative majority veers back and forth between tight constraints on Congress's enumerated powers (Lopez and Morrison in the Commerce Clause context) and virtually no constraint (Eldred, in the Copyright Clause context) it matters little whether Eldred, standing alone, is an activist opinion. It is activist in context because its reasoning is inconsistent with the closely comparable Commerce Clause cases, thus leading to the impression that the conservative majority is result-driven.

That was the point of the article, and I think it stands. At the very least, if the conservative majority was concerned about appearances and had an argument for distinguishing between proper judicial analysis of Congress's exercise of its enumerated powers in the Commerce Clause and Copyright Clause contexts, it could have offered it. That the conservatives did not, and that they allowed Justice Ginsburg (who has never adhered to the Lopez/Morrison line) to write for them, speaks volumes.

Best regards.

• Chris Sprigman --- Tyler Ochoa <tochoa[_at_]law.whittier.edu> wrote:
  > >>> sprigman1[_at_]yahoo.com 01/22/03 08:00AM >>>
  > In any event, whether or not the CTEA is bad policy,
  > I believe that the
  > Supreme Court's opinion in Eldred is bad legal
  > reasoning and a worrying
  > example of conservative judicial activism. See
  >
  http://writ.news.findlaw.com/commentary/20030120_sprigman.html
  >
  > <<<<<
  >
  > I have already expressed my opinion about the
  > Court's legal reasoning,
  > and I agree with many of the criticisms of the
  > opinion in your piece. I
  > also agree that there are many worrying examples of
  > conservative
  > judicial activism from the current Court. However,
  > Eldred is not one of
  > them. Eldred may be conservative in its outcome [it
  > favors the
  > wealthy], but it is decidedly NOT activist in its
  > reasoning. Its
  > reasoning is the epitome of true conservative legal
  > reasoning: deference
  > to legislative authority.
  >
  > Instead, the worrying examples of conservative
  > judicial activism from
  > the current court have to do with the frequency with
  > which it overturns
  > legislation and precedent with which it disagrees.
  > But in Eldred, they
  > upheld legislation against a Constitutional
  > challenge, and they did not
  > overturn any established judicial precedent in doing
  > so. [They didn't
  > respect the policy of Graham v. Deere as much as I
  > would have liked, but
  > I can't say that was activism.] Indeed, Stevens'
  > dissent, which would
  > have overturned several 19th Century term extension
  > decisions [albeit
  > those of lower courts], could well be considered
  > more activist than the
  > majority's.
  >
  > I also agree that the justices sometimes act in a
  > result-oriented
  > manner, but I do not believe the justices acted in a
  > result-oriented
  > manner in Eldred. O'Connor made that clear at the
  > oral argument. She
  > said this was clearly NOT what the Framers had in
  > mind, but that didn't
  > necessarily make it unconstitutional. I think
  > Souter and Kennedy felt
  > the same way. I think that if the nine justices had
  > been voting as a
  > legislature (but without lobbying and campaign
  > contributions) they might
  > very well have rejected the CTEA. Instead, the
  > majority [or at least
  > some] truly believed that this was a decision for
  > Congress, not the
  > Court. I'm disappointed with the decision, but this
  > is not a case in
  > which I question their motivation.
  >
  > Tyler T. Ochoa
  > Professor and Co-Director
  > Center for Intellectual Property Law
  > Whittier Law School
  > 3333 Harbor Blvd.
  > Costa Mesa, CA 92626
  > (714) 444-4141, ext. 243
  > (714) 444-1854 (fax)
  > tochoa[_at_]law.whittier.edu
  >
  

  ---

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