RE: More Re: ELDRED

At 10:40 AM -0500 1/30/03, Chris Mohr wrote:
>I agree with you--federalism is a structural constraint built into the
>commerce clause. It limits the State police power--the states have an
>interest in pushing back lest they become completely subservient to the
>federal government. (FWIW, I agree that the sovereign immunity
>decisions--particularly the recent 11th Amendment penumbra that the
>Court created--are, er, slightly loony. Even some pretty prominent
>conservative jurists think so--Judge Noonan in the Ninth Cir. just wrote
>a pretty good book taking those decisions apart. The court's belief in
>this structural limitation, right or wrong, is genuine).
>
>The states have no sovereign interest in the term of copyright
>protection--the constitution _structurally_ (and textually) takes it
>away from them. Federalism is irrelevant. Put another way, what
>cognizable, structural interest is the court defending by striking down
>the CTEA? The political considerations are recognized in numerous
>doctrines, such as Younger abstention, or political question, or the
>case or controversy requirement of Article III--and they were around
>long before the current CJ and his gang of four.

If I understand your question, the "structural interest" at issue here is separation of powers. Congress, not the Court is charged with establishing the "limited Times" mentioned in Art I, sec. 8. You could also characterize it as a justiciability problem -- there are no "legal" principles to rely on if the Court were to try to arbitrarily fix an outer limit on "limited."

John Noble Received on Fri Jan 31 2003 - 15:22:22 GMT