This (courtesy Brad DeLong) is really interesting. The conclusion:
American radicals cannot afford to become their own worst enemies. In unity lies their only hope.
Tea Partiers take note!
Of course people write all kinds of things when they’re undergraduates that are not reliable guides to what they think when they, you know, grow up. I wrote 100-something pages on Russian religious apocalypticism. As I recall I found it all very vulgar. My thesis advisor could never understand what I meant by that word. Come to think of it, I still find it pretty vulgar, so maybe some undergraduate theses are reliable guides to what you think later on.
Filed under: Law
So apparently John Roberts, in his majority opinion declining to rule the Voting Rights Act unconstitutional (for now!), said the following:
“We are now a very different nation” than more than 40 years ago when the Voting Rights Act was first upheld. “Whether conditions continue to justify” the act, the majority said, is “a difficult constitutional question.”
So it was constitutional in 1965, but now maybe it’s unconstitutional? Maybe the Founders intended for it to be constitutional for Congress to require that legislatures pre-approve changes in district boundaries to ensure they don’t infringe on minority voting rights in 1965, but now their spirits up in Heaven have changed their original-intending minds and decided that they didn’t originally intend that? Maybe there’s been some kind of Back-to-the-Future-style original-intent time-traveling going on?
Or maybe what Roberts is saying is that the Constitution is a living document that needs to be constantly reinterpreted in light of changes in society? Because that’s what it looks to me like he’s saying here.
Matthew Yglesias and Megan McArdle find a rare point of agreement in opposing the extension of copyright law to time periods long after the death of the author, where the only goal is rent-seeking behavior by big corporations that want to make more money off of their government-created monopoly.
As it happens this issue is live this morning in Hanoi, with representatives of the US Trade Representative’s office meeting with Vietnamese officials to discuss enforcement of IP law. One issue is recent opposition in the Vietnamese National Assembly to a 75-year copyright term. The deal is, the Berne Convention only requires a 50-year term of copyright for certain works (notably movies and sound recordings). But the terms of the US-Vietnam Bilateral Trade Agreement (BTA), signed in 2000, demand a 75-year term. Vietnam is in the process of amending its IP legislation, and several representatives in the Assembly pointed out Monday that having a longer term of copyright doesn’t seem to serve Vietnam’s interests.
The arguments made by the representatives were a bit confused, but they’re essentially right: the main beneficiaries of the longer term would be foreign media corporations like Disney and Warner, who could continue to demand royalties on properties like “Bambi” and “Twist and Shout”* that would otherwise be in the public domain now, or within a few years. There are no Vietnamese likely to benefit from 75-year copyright terms at the moment with the possible exception of the heirs of ’60s folk-pop musician Trinh Cong Son.
But in actual fact, all of this debate is rather pointless, because IP law simply isn’t enforced in Vietnam. I talked to a US Embassy official today who was in the talks, and he said whatever was said in the National Assembly seems to be irrelevant. First of all, the terms of Vietnamese legislation probably can’t invalidate the terms of the BTA and Vietnam’s WTO commitments. But more important, the discussions this morning focused entirely on beefing up enforcement of existing IP law. The piracy rate for software in Vietnam is falling — from over 90% down to a current rate of 85%. The piracy rate for DVDs and CDs is still well over 90%. (I’d make a rough guess at something like 98% for DVDs.) Discussions of the consequences of different IP regimes in the developing world still seem largely theoretical and irrelevant, because where enforcement doesn’t exist, copyright doesn’t exist.
* Under EU and Berne rules, the performance rights on the Beatles’ version of “Twist and Shout” will expire 50 years after its recording, i.e. in 2013. That means you could use the song as the soundtrack to a TV commercial without paying anything to Paul McCartney. The rights to the underlying composition will last longer. Bertrand Berns, who co-wrote “Twist and Shout”, died in 1967. Under Berne rules his half of the royalties would lapse in 2017, but the EU now sets copyright term at 70 years from the death of the author, which would be 2037. The other composer, Phil Medley, died in 1997, so even under Berne rules his heirs will still be living it up “About A Boy”-style in 2047. I don’t want to deal with what the US terms of copyright will be — I’ve wasted enough time looking this up already.
It seems to me that at this stage, saying anything but the above only gets you further into the pointless maelstrom. You could dissect all the insane ways this debate has become insane, but that only adds to the insanity. The upshot remains that Sonia Sotomayor is a very smart and qualified judge with mainstream liberal views.
I agree with Megan McArdle that conservatives are making a huge mistake by focusing their attack on Sotomayor around the idea that she’s not really smart and must have benefited from preferences for minorities. As Megan says, everyone gets networking advantages based on race, ethnicity, religion, and so on: white people benefit from white networks, Jews benefit from Jewish networks, blacks benefit from black networks. Fundamentalist Christians were massively over-represented in new hires by the Justice Department during the Bush Administration. And the reverse: everyone gets discriminated against, in other contexts.
But beyond issues of cronyism, there is a natural good governance interest in seeking out diverse leadership. Everywhere in the world, effective governments recruit diversity in order to extend their reach throughout the population, to represent the popular voice in a broad and inclusive fashion and to be able to project government authority into diverse minority communities. This is something that governments do. They do it because it works. And it’s not just government; any organization that wants to gain access to diverse social communities and resources needs to recruit diverse members. And for that reason, elite leaders of under-represented communities will always be recruited by effective organizations because of their community background, regardless of whether or not there are official government affirmative-action programs administered by law.
Think about Sotomayor: no one is even trying to claim she benefited from official government-mandated affirmative action programs. Instead they seem to be claiming that private institutions like Princeton and Yale gave her preference because they saw their private interest in recruiting diverse student bodies, and that President George H.W. Bush appointed her to a Federal district court because he felt the courts needed a diverse bench.
This is not an ideological or single-party issue. When I was in college, an illustrious graduate who had just been elected to the alumni board asked me to get together a group of students to have dinner with him, so he could find out what undergrads were concerned about at the university. He was an old blue-blood and a former ambassador to the USSR. “Don’t make it a bunch of white men,” he told me. In the end, because of my inferior recruiting skills, I screwed it up — both black people I invited declined; I had one white female, one gay Hispanic male, and a bunch of white men. I think the black folks felt they were being recruited…because of their race. So these things are complicated. But looking at it from the board member’s point of view, one can understand perfectly why he wanted to have dinner with a diverse cross-section of the undergrad population. That kind of dynamic will always be present, and top people from under-represented or outside-network groups will always “benefit” from it.
If you avoid recruiting people who are different from you, you’ll have nothing to counterbalance your natural tendency to recruit people from the group you belong to. And then you wind up where the Republican Party is right now: unable to govern, in part because it has no ties to large segments of the country it seeks to rule. But in any case, conservatives right now aren’t presenting any evidence Sotomayor is unqualified or isn’t smart. There is no such evidence. The woman graduated summa cum laude from Princeton for chrissakes. Instead conservatives are arguing simply that Sotomayor should be presumed to be unqualified or not smart, because she is Hispanic. There’s no way for that line of thinking to stop itself before it careens into all-out racism.
It’s like watching the Movement’s eyeballs pop out. Sproing!
In today’s Wall Street Journal, former State Department legal adviser John Bellinger pens an op-ed arguing that US courts are being improperly used as a venue for disputes that have nothing to do with the US, under the Alien Tort Statute of 1789. Bellinger supplies a few examples; see you if you can spot the one that seems strikingly out of place.
In recent years, for example, Caterpillar Inc. was sued for selling bulldozers to Israel that were eventually used to demolish Palestinian homes. Dow Chemical Co. was sued for manufacturing the Agent Orange defoliant used during the Vietnam War. And Yahoo Inc. has been sued for sharing user information with the Chinese government, which resulted in the arrest of Chinese dissidents.
In the Caterpillar and Yahoo cases, US companies were sued for providing equipment or information to foreign governments that allegedly used them in ways that violate international law. But in the Agent Orange case, Dow Chemical and other manufacturers were sued for providing chemicals to the US government, which allegedly used them in ways that violate international law. Bellinger is trying to argue that US courts are not the proper venue for a suit involving actions by US corporations and the US government. That seems like a pretty weird argument to make.
As a matter of record, the suit by Vietnamese plaintiffs against US manufacturers of Agent Orange has failed at every level of appeal and in the Supreme Court. But it’s failed for a combination of concrete and technical legal reasons. At the sharpest end of the stick, US courts have ruled that while Agent Orange’s toxicity was due to manufacturer negligence — it shouldn’t have contained as much dioxin as it did — the manufacturers had made the US government aware of the high dioxin levels, and the government ordered them to keep producing it anyway. That means the government, not the manufacturers, is responsible for the defects. And the government has “sovereign immunity” from suits of this nature. So the Vietnamese plaintiffs are left with nobody to sue in US court. But the various appeals court judges who have looked at this suit have never argued that US courts are the wrong venue in which to bring a suit against US companies that carried out actions at the behest of the US government. That would be a bizarre thing to say.
It seems that in the aftermath of the ruling by California’s State Supreme Court that the state constitution requires that people of the same sex be allowed to marry, the majority of California voters now support gay marriage. The margin is something like 51-42 or -43, for a position that was apparently opposed about 56-44 just last year.
The problem with the conservative argument that judges shouldn’t legislate morality, or should leave normative decisions up to the political sphere, or public opinion, or whatever, is that when judges make decisions about fundamental matters of constitutional rights, it affects public opinion, and hence the political sphere, and hence morality. There were surely a large number of people in 1972 who, while amenable to the idea that abortion is a matter best left up to women themselves, wouldn’t have been sure that there is a right to an abortion as part of the right to reproductive freedom which is part of your right to privacy or to control over your own body. But in the aftermath of Roe v. Wade, a lot of those people decided they, like the majority of the Supreme Court, did embrace the view that the abortion issue falls under the right to reproductive freedom. Similarly, there are clearly a lot of people who are basically gay-friendly but might not have been sure they felt gays had a right to marry, but who in the aftermath of a 9-2 4-3 decision by an overwhelmingly Republican supreme court [thanks to Paul for pointing out mistake - Matt] have decided that actually they think, yeah, maybe gay people have a right to marry the person they love too.
The right-wing hack and author of “Winter’s Tale” (which all my friends who grew up in New York seem to love) makes a plea to extend the duration of copyright privileges to…forever. This completely moronic idea, which would have every high school in the English-speaking world paying the far-flung relatives and heirs of Shakespeare every time they put on a production of “Romeo & Juliet”, is so extraordinarily bad that it seems impossible even to begin to describe its badness. Try this one on: if copyrights last forever, why shouldn’t patents? What makes the writer of a great novel more worthy than the discoverer of a miracle cure? Okay, then: imagine a society in which Bayer still had monopoly rights to aspirin, and it cost $5 a pill. Here’s another one: say I’m a young indie director and I want to make a nostalgic movie about my childhood in the early ’90s. What music should be playing in the background? “Smells Like Teen Spirit”, right? But guess what — I can’t put that in my movie. Not unless I have tens of thousands of dollars. Now, what the hell gives Geffen (or whoever owns the Nirvana rights these days) the right to prohibit me from making art about my childhood unless I pony up fifty grand? Copyright does. We tolerate the inhibiting effect of this limited-monopoly system on art about the recent past, because it’s necessary as an incentive to creators to make their art. But what Helprin is proposing is to extend this system to FOREVER. So no one will be able to make art about ANY period, ever, unless they strip it of all references to the media products which were circulating at the time, or pay every author and performer of every bit of art that’s included.
Let’s put this even more simply.
Dear Mr. Mark Helprin,
It has come to our attention that you are the author of a novel entitled “Winter’s Tale” (1983). As the legal representatives of the heirs of William Shakespeare, we hereby demand that you alter the title of your work, which bears an unacceptable similarity to the title of a work by Mr. Shakespeare, “A Winter’s Tale” (1610). Your work violates our clients’ long-established trademark in that title, creating a risk of confusion on the part of customers between the two works — a risk which, we contend, you are deliberately exploiting in order to increase sales of your own work. We further demand that you immediately recall all copies of your work currently distributed for sale. Finally, we claim monetary compensation for your past exploitation of our trademarked title, in the sum of 20 percent of all revenues from the work, as well as 20 percent of any revenues you have derived from the sale of rights to a motion picture adaptation of said work.
Perp, Etual, & Monopoly, Attorneys-at-Law
Dear Mr. Eric Rohmer,
It has come to our attention that you are the director of a film entitled “Conte d’Hiver” (1992)…
Filed under: Law
Ilya Somin notes that some scholars opposed to an originalist intent stance on the Constitution claim that such a stance renders the Air Force unconstitutional. (The Constitution provides for an Army and a Navy, not an Air Force.) He thinks this is a straw-man argument.
Even under the “specific intent” originalism discussed by Chemerinksy, the Air Force would be constitutional so long as the Framers intended (as they almost surely did) to allow the power to raise and regulate the Army and Navy to encompass weapons technologies unknown in their own day.
I see your straw man, Ilya, and raise you a begged question. How do you know the Framers intended that power to encompass weapons technologies unknown in their day? If you can make inferential leaps about what you think the Framers must have intended to encompass in the altered world of the future, why can’t everybody else? What if I feel sure the Framers would have intended for Congress to have the power to regulate the standards of high-definition DVDs, for the public good?
Once we grant such extrapolations, we’re no longer in the realm of “original intent” at all. If this is a straw man, it’s one that tap-dances, moonwalks, and does a pretty good rendition of “He’s the Wizard”.