Saturday, February 01, 2003


Speaking of Roe

I just finished participating in the conference that I organized along with Yale Law Women to commemorate the thirtieth anniversary of Roe v. Wade. The sessions were packed and lively. The second two sessions were devoted to the question of "What Roe v. Wade Should Have Said." The panelists, all prominent American constitutional law professors, were asked how they would have written the opinon in Roe v. Wade (and the companion case of Doe v. Bolton) if they knew then what they know now. They were only permitted to cite sources available as of January 22nd, 1973, when Roe and Doe were originally decided.

One of the highlights of the session was a spirited exchange between the University of Minnesota's Michael Stokes Paulsen and my colleage Jed Rubenfeld on the status of the fetus-- or, as they put it, over whether an acorn is an oak tree. Mike Paulsen's strongly pro-life views, delivered to an audience that I presume was probably more pro-choice than pro-life, had a powerful effect.

My colleague Akhil Amar took a very interesting position-- he would strike the Texas law in Roe down because it was passed at a time when women didn't have the right to vote. What would happen if the Texas legislature then repassed an identical statute? Well, it would depend on whether the Texas Legislature had a representative number of women in it. Well, Akhil was asked, what if Texas had an initiative or referendum on the same law, so that women could vote on it? At that point, he suggested, he didn't know what he would decide. He would have to see what happened. And what about the Georgia statute in the companion case of Doe v. Bolton, which was passed in 1968, when women had the right to vote? The state courts should be allowed to clarify the meaning of the statute, Akhil explained.

Some members of the audience, I suspect, thought that this was taking the easy way out. What it suggests to me is that Akhil really doesn't believe in a substantive right to abortion, but rather is interested only in procedural guarantees of due process. But that leaves open the very interesting question whether the same logic applies to other statutes that effect women's rights-- i.e., they aren't necessarily unconstitutional as long as women have the right to vote.

Another very interesting feature of the discussion among the members of the mock Supreme Court was whether courts should push legislatures to be proactive in creating a world that respects women's work and the social and financial hardships of motherhood. Both my colleague Reva Siegel and Robin West of Georgetown pointed out that Congress had responsibilties to pass legislation enforcing sex equality norms that courts could not enforce on their own. Both are strongly pro-choice. Nevertheless, the nature of abortion regulation, they insisted, looks very different if there is a significant set of commitments by state legislatures or by the federal governrment to the support of mothers and to the welfare of children *after* they are born.

Anita Allen-Castellitto of Penn Law School argued that there should be no statutorily prescribed time limit on when women could get abortions; rather, legislatures should rely on doctors to act as a gatekeeper. Doctors won't perform very late abortions unless the woman's life is really at stake.

Jeffrey Rosen of George Washington Law School (and the New Republic) supports abortion rights as a policy matter, but argued that the courts should have stayed out of it. Both he and I considered the idea that Roe has been a political disaster. We both argued that it has strongly shaped contemporary American politics. Jeff thinks it has badly skewed the judicial appointments process. I think that it has been a boon to the Republican party, but not necessarily bad for the country. Mark Tushnet of Georgetown doubted that its political effects have been as great as Jeff and I believe. He argued that Ronald Reagan would have been elected in 1980 whether or not Roe v. Wade had been decided.

Mark's opinion for the conference was, literally, Justice Douglas's concurring opinion in Roe. His point was that the thinking of the Justices in 1973 was much more constrained by their times than we generally imagine, and that what they produced made much more sense than we usually give them credit for given who they were and the world in which they lived.

Wednesday, January 29, 2003


Mickey and the Oracle

This week’s I Ching question comes from Joyce Park, who writes with pride “Having been born in the only country with I Ching symbols on the flag, I’m game!” (That’s South Korea, for those of you who were wondering.)

Her question is:

“Will the media companies seek a further extension of copyright law by 2019?”

Generally speaking one shouldn’t ask the I Ching questions that one already knows the answers to ;-). But what the heck, perhaps the Book of Changes has some additional wisdom to share with us.

I consulted the Book of Changes, and I received hexagram 13 (Fellowship with People), line 3 moving.

Here is the text:

Nine in the third place:

Hiding armed troops in the thicket,
He climbs the high hill.
Yet for three years he does not rise up.

The commentaries on the line read:

In the third line, the group’s unity has been compromised by mistrust. The participants have developed divergent interests and goals. Cooperation has given way to competition. Each person has his own secret ambitions and seeks to dominate the others. Hence the text says, “[h]iding armed troops in the thicket.” Moreover, knowing his or her own mental reservations, each person suspects the others of having similar designs, for when people are no longer trustworthy, they no longer trust anyone else. Each person begins to spy on the others, hoping to catch them in their duplicity. And all of the remarks and actions of others, however innocent, can be interpreted as signs of impending betrayal or ambush. Cycles of mutual distrust and alienation grow. As a result, the group can make no progress.

You must break the cycle of mistrust before it becomes too pronounced. Reexamine your goals and your hopes for the group. Secrecy must give way to open discussion. A new agreement on the goals and aims of the fellowship must be forged in light of changed circumstances so that trust can be reestablished and bonds of loyalty renewed. If the participants can recognize that they are indeed working on a joint enterprise, they will be able to live with disagreements about how to proceed.

The theme of this line is the mistrust generated when people try to grab everything for themselves. Then they spread distrust and antagonism in society, and destroy the common bonds that make successful cooperation possible. For someone like me, who thinks that our culture is a common product that we all share in and benefit from, the message is quite clear. Media companies are in the business of maximizing profits, so they will probably try to grab as much as they can, but this is not necessarily a good thing. Rather, we have to come to a new bargain about culture in the digital age that will allow media stakeholders to make a living but will also benefit society as a whole. The current path we are traveling– which simply encourages companies to push for greater and greater control over media products with less and less concern about the public domain-- does not accomplish this.

At the same time, people who want freer access to media products (and I count myself in this group) must behave responsibly and give media companies reasons to trust that they will not be taken unfair advantage of. They should work toward positive legal and technical solutions that help establish and enforce a new social bargain about culture. It's important to understand that the current policies of media companies seeking expansive intellectual property protections and control over consumers are not simply motivated by the desire to make money; they are also motivated by the fear and uncertainty produced by the disruptive effects of new digital technologies. Only a new bargain that respects the interests of all will prove stable and produce beneficial cooperation in the long run.

If you have a question you would like posed to the I Ching, please send it along by e-mail. I’ll pick a question every week or so and publish the results online. Please don’t ask questions you wouldn’t want generally discussed in public. And please don’t ask about stock tips; the Oracle has been warned more than once about the rules against insider trading.

Tuesday, January 28, 2003


Is the DMCA Unconstitutional After Eldred v. Reno, Part II

In an earlier post, I explained why the Supreme Court's decision in Eldred v. Reno placed the constitutionality of the Digital Millenium Copyright Act in doubt. Guy Pessach, one of the fellows at my center, the Information Society Project, has offered yet another reason why the DMCA is unconstitutional. Eldred assumes that Congress can extend the length of copyrights, as long as Congress does not try to create copyrights of indefinite or perpetual duration. In this sense, Eldred still holds that Congressional power is limited. However, the DMCA has no time limit. It makes it a crime to interfere with copyright management schemes even after the material protected passes into the public domain. If Congress has power to pass the DMCA, it is not under the Copyright Clause.

We can take Guy's argument one step further. The first amendment objection to the DMCA is that by restricting access to fair use, Congress has created a new property right that allows copyright owners to do an end run around fair use, effectively shrinking the public domain. In addition it extends that property right to prohibit the use and dissemination of technologies that would protect fair use and vindicate fair use rights. In like fashion, one can also argue that the DMCA creates new property rights that allows people the right to do an end run around the limited times requirement. Because this “alters the traditional contours of copyright protection,” it violates the First Amendment, even though Congress would be perfectly free under Eldred to extend the copyright term by a specific and determinate amount.