The Volokh Conspiracy

Mostly law professors | Sometimes contrarian | Often libertarian | Always independent


James Stern on ABC v. Aereo


The Supreme Court issue of the NYU Journal of Law and Liberty (home of my "shadow docket" foreword) is now online, and it's full of interesting-looking pieces (including two by co-conspirators!).

I particularly liked ABC v. Aereo and the Humble Judge, by my friend James Stern, about the Court's decision last term holding that a novel television retransmission system violated the Copyright Act.

Two passages from the second half of the article:

The message, in other words, was "We know 'em when we see 'em—and so do you. So don't worry. We'll get this right." [This approach] rests on an exaggerated self-confidence. It assumes judicial judgments as to what are and are not cable equivalents will be so obviously correct that reasonable minds will have no real difficulty figuring out what activities fall within the danger zone. Having reached a conclusion, it is natural to think its logic is self-evident. But there will always be close cases and [the Court's standard] seems likely to produce more than its fair share of them.


The Court should not be faulted for self-conscious prudence, restraint, and humility. But the question is what to do when one knows that one knows so little. It may generally be better in the fast-changing world of technological innovation to have clear rules and adhere to the standard tools of legal reasoning than to pull back and retreat into vagueness when the consequences seem uncertain. The nervous driver may be inclined to slow down in trying to pull onto a crowded and fast-moving highway, but the safer course is often to speed up.