Monday Smackdown: Scott Lemieux vs. Lawrence Lessig

Monday Smackdown: I score this for Lemieux, 6-0, 6-0, 6-0:

Scott Lemieux: The Mandatiest President Who Was Ever Mandated: A Mandate for Change: "Preferring ideas that sound cool to more rational ones that could work has been a persistent problem for Lessig...

...foreshadowed by his involvement in Edlred v. Ashcroft.... the 2003 case that upheld the extension of the 20-year extension of copyrights passed by Congress in 1998. I agree with Lessig that the law was terrible public policy and that it plausibly violated the Copyright clause in Article I. And his losing the case is not, in itself, a basis for criticism--I doubt Zombie Daniel Webster could have transformed the 7-2 loss into a victory. What was strange was his strategic approach. While his allies urged him to emphasize the terrible public policy consequences of upholding the Sonny Bono Act, Lessig decided to go with a formalist approach... that in light of the restrictions on Congress the Court placed based on the commerce clause in Lopez and Morrison, the purportedly originalist majority on the Court was therefore compelled to enforce restrictions on Congress based on the Copyright clause.

It’s rather astounding that a major legal scholar would take this approach, which the the kind of quarter-baked gotcha you’re more likely to encounter in blog comments than from people arguing cases at Supreme Court. (Someone once bet me that there was no way, in light of Lopez, that the Supreme Court would uphold the federal ban on ‘partial-birth’ abortion. He didn’t pay up when he was proven wrong.) And leaving aside Lessig’s decision to ignore even the most basic insights of legal realism, the strategy made little sense on its own formalist terms. Lopez was not a sweeping originalist opinion... [but] a very narrow opinion that was careful to leave the basic Wickard framework undisturbed, written by a justice... [who] rarely showed any particular interest in grand theory. The idea that Lopez logically required the narrow reading of another clause in Article I is deeply strange. But don’t take my word for it, take Lessig’s:

If, that is, the principle announced in Lopez was a genuine principle. Many believed the decision in Lopez represented politics—a political preference for states’ rights, gun ownership rights, and so on. But I rejected that view of the Supreme Court’s decision. Shortly after the decision, I wrote an article demonstrating the ‘fidelity’ of such an interpretation to the Constitution. The idea that the Supreme Court decides cases based upon justices’ political preferences struck me as extraordinarily boring. I was not going to devote my life to teaching constitutional law if these nine justices were going to be petty politicians.


THE MISTAKE WAS MADE EARLY, though it became obvious only at the very end. Our case had been supported from the very beginning by an extraordinary lawyer, Geoffrey Stewart, and by the law firm he had moved to, Jones, Day, Reavis & Pogue. There were three key lawyers on the case from Jones Day. Stewart was the first; then, Dan Bromberg and Don Ayer became quite involved. Bromberg and Ayer had a common view about how this case would be won: We would only win, they repeatedly told me, if we could make the issue seem ‘important’ to the Supreme Court. It had to seem as if dramatic harm were being done to free speech and free culture; otherwise, the justices would never vote against ‘the most powerful media companies in the world.’

I hate this view of the law. Of course I thought the Sonny Bono Act was a dramatic harm to free speech and free culture. But I was not persuaded that we had to sell our case like soap. In any event, I thought, the court must already see the danger and the harm caused by this sort of law. Why else would the justices have granted review?

In fairness, this was not just a postmortem but a mea culpa; Lessig, to his credit, admits that he was willfully naive and that this was a serious mistake.

But his subsequent adventures in activism suggest that he didn’t really learn anything. He’s not interested in correct answers (i.e. ‘generating mass mobilization around procedural issues is enormously difficult; in the current political context, there’s no strategy that can get national Republicans to vote for electoral reform; getting something like the Citizens Equality Act passed will require the kind of favorable legislative context necessary to pass comprehensive health care reform, and what activists need to focus on is making sure electoral reform is at the top of the agenda the next time the opportunity arises’) if they seem bor-ring.

He’d rather come up with a magic bullet that will allegedly change things RIGHT NOW, especially if it involves casting himself in a heroic role, even if it requires all known realities about American politics. And when the approach inevitably fails, it’s time for the next attempt to pretend that politics is the rapid boring of soft boards with a power drill. And while making bad arguments in law reviews or seminar rooms is no big deal, when lousy ideas are the basis for quixotic campaigns that squander resources that would be better spent elsewhere, they’re far from harmless.