Judicial activism, the idea that judges can and should interpret the law flexibly to fit the exigencies of the time and even to nudge the times along, sounds to my layman’s ears like a term that those who utter it, treat it as a bad word. Those who favor judicial activism always sound to me like they’re on the defensive. “A living constitution is good,” they may say, “but really, it’s that originalism is really bad in theory and unworkable in practice anyway”. Those who are against judicial activism seem — again, to my layman’s, untrained ears — to be much more stridently confident. “We’re umpires calling the balls” appears to be an idea at its apex of influence.
Maybe this is for good reasons. There are two standard arguments against judicial activism. First, courts are not well equipped as an institution to enforce its decisions, so if it were to legislate from the bench and its legislation were not popularly endorsed, the courts’ pronouncements would be ignored. This, in turn, would invite all sorts of bad consequences, general disrespect for the law being one. Second, courts should not legislate from the bench because this would be to trample the separation of powers and contravene the public will of the people as reflected by the work of the legislative branch, or Congressmen directly elected by the people.
Let us now turn to a topic on which I’m somewhat more conversant, although by no means an expert. How should we think of judicial activism in the area of copyright? Does the current state of copyright law reflect the will of the people? Would judicial activism in this area constitute a violation of the people’s will?
Jessica Litman in Digital Copyright argues that copyright legislation is a product of special interests’ money. Special interest groups — mostly big entertainment lobbies — not only get favorable legislation passed but, by ding of their money and connections, get to write the legislative bills themselves; those in the government who are supposed to keep such an already-dubious process in check routinely come from the same lobbying firms as those who are now driving the legislation and so are no checks at all; these groups then get their bills enacted into law after some compromises are made with other big interests, notably technology companies, who get narrow, special exemptions written into the statutes for what they want to do. Left entirely outside of the process is the public interest.
This is Ms. Litman’s argument and it has been echoed by other voices. We needn’t for now decide if Ms. Litman is correct. For the sake of making this blog post interesting, let’s just say that she is and that the public will is not reflected in the current state of copyright legislation. That is, the vast majority of people do not think that copyright law strikes a proper balance between the need to reward authors and so incentivize creative expressions and the good that is done by having those expressions be widely disseminated and used. The vast majority would be horrified to learn that they need the artists’ permission for a 3-note sample, that they don’t own the e-books that they buy, that they can’t unlock their phones for interoperability considerations.
Let’s say that this is the case. Then does this undercut the usual arguments against judicial activism? If by taking on some legislative functions, the courts are not going against the public’s will but, by sidestepping the role that money plays in the legislative process, are manifesting such will, then how should we feel about such prospects? One can argue that the proper way for the public to express its opinions would be for them to vote out politicians who are passing copyright legislation that they don’t like. However, because copyright is hardly a concern that swings people’s votes between candidates, this point is moot. The question is, given (by our assumptions) that here’s a chance for the courts to align the law with its people’s wishes, do the courts want take that chance? Do we want the courts to seize that opportunity?
Another argument against not judicial activism specifically but against bending to the popular will on every issue is that it has bad long-term policy implications. For example, erasing all debts would be a very popular measure at any point in time since debtors outnumber creditors in most places. However popular, to pass such a law would be a bad idea because once it happens, people would be dissuaded from lending money in the future. Investments and growth would ground to a halt. People are short-sighted, the law shouldn’t be is the thrust of this argument.
In the case of copyright, however, there’s no study showing that the current copyright statute is actually optimal in promoting the progress of science and the useful arts. So changing the contours of copyright may bring about positive effects both in the short- and long-run, changes that are now stymied because of Congress short-sighted, self-promoting interest in money. This brings us to the last usual argument made against judicial activism — that no matter how much good such activism may bring about, the courts are in a poor position to ascertain or measure such good and so to make public policy trade offs. I think this argument fails as an absolute proposition. Judges are going to be thinking about the consequences of their rulings, and in this way, they’re already thinking about public policy. It’s simply a matter of how much they put on the practicable effects.