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Frederick: Well, the one that you omitted, Kathleen, was the undue-burden test, which was also one of her creations, of sorts. Sullivan: Absolutely. That was a case where one did write for an audience of one. It was widely expected that O’Connor would vote to overrule Roe. I was in a minority of people who thought that wasn’t the case and that if you argued the undue-burden test to her she would at least reaffirm Roe, if not every other decision striking down abortion regulations. That’s exactly how it did turn out in that case. Look at the property rights case [of Kelo v. New London]. After all, Justice O’Connor wrote the decision in Hawaii Housing Authority v. Midkiff years ago that held nine to nothing that public use is coterminous with the police power and that challenges to an eminent domain taking of private property to transfer to another private owner should be scrutinized with the most deferential of review. Now in Kelo, she writes a very passionate dissent saying that the majority had written the public use clause out of the Constitution. Pay no attention to that decision that talked about the public use clause being coterminous with the police power that she had written years ago. It used to be the case that we never saw Justice O’Connor disagreeing with her own prior art. Take the Texas sodomy decision, the gay rights decision of two terms ago, Lawrence v. Texas: She concurs on the result that strikes down the Texas same-sex sodomy law, but she does so without distancing herself from her prior participation in the Bowers v. Hardwick privacy ruling. So she agrees with the outcome of Lawrence, but she doesn’t overrule her own prior opinion. But she dissents in a sense from her own self in Kelo, although she makes an effort to distinguish the Hawaiian housing case � or maybe she felt a little bit more freedom to go out saying what she really thinks. Frederick: But one of the things also about her jurisprudence, I think, is that she was reluctant to be overtly overruling precedents even if those precedents were not consistent with what the Court’s holding of the day was. I think that was part of her respect for the common law approach, the incremental decision-making that she engaged in unless it was completely irreconcilable. I think she would find a way to slip around or slide through prior cases even if, for most of us mortals, it would be hard to reconcile the holdings of cases. She did that in the first case that I argued this term, where, on a maritime bill of lading � and that’s all I’m going to say about it � she had to confront several precedents. Rather than overtly overrule them � which is the effect of the Court’s holding, you know � she just simply kind of side-stepped them and, according to the commentators who have written about the case so far, overruled 150 years of settled admiralty jurisprudence in one respect, but never came right out and said that. And so, I think, in that way kind of kept alive for those who want to argue in the future that there is still a mixed contract doctrine in admiralty jurisprudence. Mauro: I think I see a theme emerging here, sort of a valedictory term, even though she didn’t intend it. It’s almost like she was left holding the bag on some of her own tests and watching the rest of the Court sort of move away and drift away in different directions. Maybe that’s something for a long review. I wanted to get into the cases briefly, and I wanted to touch on two of the cases that were decided on the final day of the term and which get a lot of attention � MGM v. Grokster and the Ten Commandments case, both of which Paul argued in, and both of which, when you think of it, turned on intent and purpose. In the Grokster case, the Court seemed to be saying that if you build an entire file-sharing business with the purpose of enabling theft of copyrighted works, you’re in trouble. And in the Ten Commandments case, if you put up a display of the Ten Commandments with the purpose of enforcing religion, you’re also in trouble. Some cynics in both cases have said, well, if you just keep your mouth shut about your purpose and your intent and you dress it up with neutral language and various accessories, you can get away with doing what you were doing before. Clement: Well, I certainly don’t see it that way, but I have to say that in looking at the two Ten Commandments displays, if you would have told me before the cases came down that the 6-foot, 2-ton monolith in Texas would be the constitutional one and the 8-inch-by 11-inch version surrounded by other historical documents would be the unconstitutional one, I would have probably been a little bit surprised by that. Of course, the explanation is the Court focused in the Kentucky case on the intent prong. The government in that case tried to steer the Court away from a focus in the First Amendment context on intent. I think in that context � of the intent of government officials � there’s room for argument about how much we want to pry into the intentional decision-making of government officials, and to what extent we want to approach those cases with the presumption of good faith on government officials. I think that the one thing that emerges from those two cases, if nothing else, is that the establishment clause jurisprudence of the Court remains remarkably � and, I think put in perspective of some local governments, probably maddeningly � context-specific. Shifting gears to the Grokster case, on the other hand, I think there the focus on intent makes a lot of sense, as you suggested. The Court had held [in Sony v. Universal City Studios] that the governing standard was that if you make a product with substantial non-infringing uses, that the sale of the product alone will not give rise to secondary copyright liability. And there was a lot of discussion in the briefs about what does a substantial amount of non-infringing use mean. The Court, by focusing on the intent of Grokster and Streamcast, avoided having to definitively resolve the question of how much substantial non-infringing use you need. At the same time, they made an important statement about copyright liability. What the Court effectively said is that “Look, Sony is one basis for liability, but it’s not a defense.” The very fact that you sell a product that is capable of substantial non-infringing uses is not a complete defense if you’re out there actively marketing it as a copying device. And I think that is an important additional element to the law, because I think there was an active debate on the part of a lot of individuals who filed briefs in support of the respondents to the case trying to argue that Sony was more than a form of liability � it was a defense, as well. So I think that was a situation where even though the Court maybe did not go as far as some would have liked to see, I think what the Court did decide there � its focus on intent and other actions of the marketer of technology � is a very important development in the law of copyright. Sullivan: Tony, I actually think that both cases have a different similarity, the Grokster and the Ten Commandments cases. There is a lot of talk in the Ten Commandments case about Moses, but what the two cases really have in common is Solomon. They were each cases about splitting the baby. They were each cases about coming down between two contested polar positions and a kind of middle position. Grokster was really a war between Hollywood and Silicon Valley, with Hollywood understandably complaining about a business that had been created to engage in mass piracy. But claiming a kind of test that says that any time that anybody engages in 51 percent infringing use that could rise to contributory liability � that’s a little bit extreme for those of us that live in the separate state of Northern California, up in Silicon Valley, where innovation and technology are so important. Those folks argue for a kind of 99.9 percent test: Until infringement is so overwhelmingly the kind of use that is going on that you can’t even think about non-infringing use, we have a free pass. And that can’t be right because you can always think of some non-infringing use. It could always be that you were, as Justice Souter said in Grokster, sending Shakespeare or the Decameron over your peer-to-peer file sharing. But just thinking about possible non-infringing use is not good enough. Between those extreme positions � Hollywood wanted to go after a vast number of technologies that might even encompass i-Pod, CD burners, or broadband itself, and Silicon Valley perhaps arguing for too protective a standard for new technologies � the Court went right down the middle, aided tremendously by the brief filed by the solicitor general, which gave them a large part of the middle basis on which they could go. And I disagree a little bit, Tony. It’s not just an intent test. I think you can still use objective indicia to show contributory infringements � business plans, software design, objective factors other than simply the intent of the creators of the new technology � it could be encompassed within the effort. And similarly, the Ten Commandments cases are obviously Solomonic. Just to cart back to Moses for a minute, the one thing they agreed nine to nothing on was that the frieze of Moses delivering the tablet that’s up in the Supreme Court chamber etched in granite, nine to zero that’s still staying there. [Laughter] There’s no need to get out the blue drapes that had just been retired by the attorney general to cover up Moses for establishment clause purposes. [Laughter] He’s staying, but the reason was Moses and the tablets were objectively surrounded by sufficient other symbolism, the 17 other lawmakers. As you look at the [Texas Ten Commandments display] by itself, it looks free-standing, but everything in Texas is big. If you take into account the whole big 22-acre plot that it sits on, there are a lot of other granite monuments. Again, the objective test that the surrounding context, not just the intent of our legislators, is grounds to challenge other symbols � I don’t think there’s just a free pass for all existing symbols. Frederick: I thought there was a certain common-sense aspect to both of the cases that wasn’t necessarily reflected in the doctrine. In Grokster, the common sense was that if someone is going to act like a pirate, we’re going to treat you like a pirate, and in the Ten Commandments case, it was the fact that there are historically stone and other symbols of the Ten Commandments all over the country in places that haven’t been challenged and have been there for a long time. I think in Justice [Stephen] Breyer’s view, we ought to look very hard at what’s going on in those particular contexts before we announce a rule that willy-nilly forces the bulldozers to come out and uproot the stone tablets. I appreciate that that’s not necessarily comfortable constitutional doctrine, but I thought that was a lot of what was going on in the Ten Commandments case. It’s a lot easier to pull the things off the wall in the courthouse than to uproot the kinds of tablets that are reflected in the Texas Capitol grounds and that have been there happily for many, many years. Nager: I would comment that I think it’s a mistake to discuss Grokster and the Ten Commandments case at the same time. I think Grokster was a serious effort by the Court as a whole to deal with a serious legal and economic problem and an effort to use Occam’s razor to deal with a specific problem that needed to be dealt with and not throw the baby out with the bath water. I think the Ten Commandments case was, in contrast, not a serious effort to deal with a serious issue. There’s just arbitrary coalitions in these establishment clause cases. I don’t think there was even an effort made to try to reconcile this case with these decisions, with past decisions, other than Justice Breyer’s effort, which seems to me so abstract but does not get us very far. Mauro: I want to get next into the issue of federalism, which is not always a crowd pleaser, but it is one of the signature trends of the Rehnquist Court, mainly the Court readjusting the balance between federal and state power and more toward the states. You would hardly know that that was a signature trend this term, because Paul and Kathleen [each] argued in one case in this term in which the opposite result occurred � federal power prevailed. In the medical marijuana case [that Paul argued], it was the Controlled Substances Act prevailing over California’s medical marijuana initiative. At first blush, that might seem as just a drug exception to federalism, but maybe there’s also a wine exception to federalism. In Kathleen’s case [the wine shipment case of Granholm v. Heald], the commerce clause prevailed over economic protectionism of the states � though in this case it’s a little different because there was another constitutional provision involved [the 21st Amendment]. David, on the other hand, argued in a case involving the federal pesticide regulatory law, where the Court went sort of the other way � pre-emption being kind of a subspecies of federalism � saying that the federal law did not pre-empt the litigation at the state level over pesticide problems. So, David, what’s happening here? Is the federalism trend dead or just sidetracked?
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