Almost Arbitrary

On the Volokh Conspiracy blog, Eugene Volokh has a post about an interesting case just decided by a federal district court in California. The case, Hebrew University of Jerusalem v. General Motors LLC, concerns GM’s right to use the image of Albert Einstein if an advertisement for one of its gas-guzzlers.

Einstein died in 1955 in Princeton, NJ. Eventually, the Hebrew University inherited Einstein’s property under his will. In the meantime, New Jersey’s courts recognized a common law “right of publicity,”  a sort of intellectual property right in one’s image and “persona,” and in particular in the commercial exploitation of such things. In 2009, GM ran an ad using Einstein’s picture to try to persuade us that buying one of its SUVs is an oh-so-brilliant idea. The Hebrew University sued, claiming that it had inherited Einstein’s right of publicity, and that GM has appropriated the old man’s image without its consent.

(Full disclosure: there is a print of Einstein, from an engraving by a distant relative, hanging on the wall in front of me as I’m typing this.)

The decision just released deals with a motion by Hebrew University for a ruling that the right of publicity which it inherited lasted long enough for its suit to be effective. It proposed that the right ought to last at least 70 years, in line with the federal term of copyright and the duration of California’s statutory right of publicity. The court rejected the motion and held that the right of publicity lasted only 50 years as a matter of New Jersey law, which is applicable to the case because Einstein died in New Jersey, conveniently just short of what the Hebrew University needed for its lawsuit to go ahead.

This case is a nice illustration of what Lon Fuller described as the ineradicable “antinomy of reason and fiat” in the common law (“Reason and Fiat in Case Law”, 59 Harv. L. Rev. 376 (1946)). The court’s decision is at once at a development of the principles and logic of the law surrounding the “right of publicity”―reason―and an arbitrary decision to set the right’s term at 50 years, rather than at some other number that would have suited these principles and logic just as well―fiat.

Among the reasons that bear on the court’s decision are the origin of the “right of publicity” in privacy rights and its inherent connection with the personhood and dignity of its original holder, which weakens over time after that person’s death, suggesting that the right should not be of unlimited duration; the resemblance, which is yet not an identity, of the “right of publicity” with copyright, which makes the copyright term a useful guideline, but not a firm mark, for the duration of the right of publicity; the choices of other states, which split about half and half between allowing a right of publicity longer than 50 years after the person’s death (indefinite in one case, up to 100 years in  a couple of others) and 50 years or shorter (sometimes as short as 20 years); and freedom of expression and the need for a rich public domain. Considering these reasons together and individually, the court concludes that 50 years is a reasonable middle ground, a compromise between allowing a person to exploit his image and fame and transmitting the benefits of his life’s work to his heirs, and letting the public use images that become part and parcel of our culture.

Perhaps so. Yet surely, 49 years or 51 would have been just as reasonable as 50; the number, after all, has relatively little, except its neatness, to recommend itself. (It was the old term of copyright protection in the US, to be sure, but it is no longer, and in any case the court pointed out that the copyright term, which it qualified as “extremely lengthy” (p. 11) is not determinative.) More to the point, a term of 55 or even 60 years would have struck much the same balance between the reasons at stake―but it would have made all the difference to the parties, since it would have allowed Hebrew University’s lawsuit to proceed.

As the court noted, citing a scholarly work, “the determination of the right’s duration [is] ‘by nature almost arbitrary'”  (p. 4). It noted, too, that “[a]n ‘almost arbitrary’ ruling is unacceptable, however” (4). It did its best to give reasons for its conclusion, so as to make it non-arbitrary. But the reasons, I think, cannot close the deal. They can, at best, point to a ballpark of reasonableness, a murky area in which any outcome will be defensible―but none incontestable. As Fuller warned,

[w]hen we deal with law, not in terms of definitions and authoritative sources, but in terms of problems and functions, we inevitably see that it is compounded of reason and fiat, of order discovered and order imposed, and that to attempt to eliminate either of these aspects of the law is to denature and falsify it. (382)

The existence of cases such as this is, nonetheless, something of an embarrassment to courts, who tend to cling to pure reason as the source of their legitimacy. It is also an embarrassment to those whom I described here as “right-answer romantics” who think that common law adjudication can always yield a definite right answer to any legal question. But for the rest of us, it need only be a fact about the law that we ought to be clear-eyed about.

Right Answer Romantics

I was re-reading F.A. Hayek’s discussion of the common law in Chapters 4 and 5 of Rules and Order, the first volume of his Law, Legislation and Liberty, and was struck by something I had missed when I first read it four years ago while working on a thesis on common-law constitutionalism. When deciding a case in which the applicable rule of law is not readily supplied by prior judicial decisions  (or by a statute), says Hayek,

The judge may err, he may not succeed in discovering what is required by the rationale of the existing order, or he may be misled by his preference for a particular outcome of the case in hand; but all this does not alter the fact that he has a problem to solve for which in most instances there will be only one right solution and that this is a task in which his will or his emotional response has no place. (119-20)

This is strongly reminiscent, of course, of the (more familiar to most legal philosophers) “right answer thesis” defended by Ronald Dworkin, according to which there is a right answer to every legal question, no matter how difficult, which a proper interpretation of the law should yield.

There are minor differences in the qualifications Hayek and Dworkin make for their right-answer claims: the former concedes, it seems, that there are at least some cases in which it does not hold―though he does not say what these are. The latter is willing to allow that the right answer cannot “be proved right to the satisfaction of everyone” (Law’s Empire, ix, emphasis in the original). Still, the two clearly believe in the essential truth of the one right answer claim.

They also come to it in roughly similar ways, arguing that, while the sources of law recognized by legal positivists (statutes and judicial decisions) do not provide all the answers to all legal questions, more general principles do. They differ somewhat on where these general principles come from and how they are to be found. For Dworkin, one gets at them by interpreting and making sense of prior political decisions of the community, notably the constitution, statutes, and judicial decisions. For Hayek, they are rules of conduct observed unconsciously by members of the community, unbeknownst perhaps to its rulers. But the first place to look for them is in prior judicial decisions (and perhaps also in legislation, though Hayek does not say so, because he recognizes that some legislation corrects aberrant judicial decisions). So these positions are not actually all that different.

In addition to the right answer thesis, Hayek and Dworkin draw another common conclusion from their view that the law’s “seamless web” (to use Dworkin’s expression) or “going order” (to use Hayek’s) is complete and ready to supply a sufficiently skilled and conscientious judge with right answers to all his questions. Both claim that judges do not “make law” in the way legal positivists think they do. Dworkin says that while

judges unquestionably ‘make new law’ every time they decide an important case. They announce a rule or principle or qualification or elaboration … that has never been officially declared before,

this can really be said to be law-making “in a trivial sense.” (6) They do not really make new law―they actually say what the law, properly understood, already was. Hayek makes a greater allowance for the judge’s creative role, but he is adamant that

even when in the performance of [his] function [the judge] creates new rules, he is not a creator of a new order but a servant endeavouring to maintain and improve the functioning of an existing order. (119)

And there, I suspect, is the key to this at first sight unlikely unison between the classical liberal Hayek and the New Dealer Dworkin. They are both trying very hard to legitimize the judges’ work, because they mistrust legislatures. They do so for opposite reasons: Hayek thinks they are over-eager to ride roughshod over the economic liberty and property rights of people; Dworkin, that they are likely not to respect individual rights, the chief of which is equality (not liberty). Their legal utopias are very different: Hayek’s ideal law a morally neutral framework in which each person is free to pursue his own ends, and in which the state’s values have no place at all; Dworkin’s is a legal system thoroughly permeated by a single, coherent set of values. But the upshot is the same. Legislatures are likely to impede the attainment of utopia. Judges, on the contrary, hold the values that can bring it about. (Of course Dworkin and Hayek can’t be both right about this, and perhaps neither of them is, but each thinks that he is.) So both idealized the judges’ law, and join in an almost indistinguishable common law romanticism.