Larry Lessig

The Unconfirmable Supreme Court (Part 1): The Liberals

By Elie Mystal

Update: Check out Part 2: The Conservatives.

As we were planning Above the Law’s Elena Kagan confirmation coverage, we got to thinking (always a dangerous thing around these parts): What if Supreme Court nominees didn’t have to defend themselves to the American public? What if the U.S. Senate’s constitutional privilege of “advice and consent” was revoked? What would the Court look like if the nominees didn’t have to even pretend to be moderate?

It’s a thought experiment that we’re sure has been done countless times before. But we’ve never done it, so we’ll plunge ahead.

Here are the rules: (1) The nominee should be unconfirmable. (2) The nominees on the right should make Elie angry; the nominees on the left should make Lat uncomfortable. (3) Mealy-mouthed moderates need not apply.

We decided to keep the five-four ideological balance of the current Court. Sure, we know that some people think that without the Senate, Presidents would nominate apolitical justices who have no discernible political slant. Sadly, apolitical justices = yawn.

In this post, Elie picks four pinko commie scumbags. In a future post, Lat will select five right-wing fascist nutjobs. Should be fun…

So, who are the SCOTUS nominees in the administration of President Elie Mystal?

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Musical Chairs: Larry Lessig to Harvard Law School

By Kinney Recruiting

Dean Elena Kagan strikes again. From an HLS press release:

Lawrence Lessig law professor Larry Lessig.jpgRenowned legal scholar Lawrence Lessig has been appointed to the faculty of Harvard Law School, and as the faculty director of Harvard University’s Edmond J. Safra Foundation Center for Ethics. The announcement was made jointly today (Dec. 12) by Harvard University Provost Steven E. Hyman and Harvard Law School Dean Elena Kagan.

Lessig — a widely acclaimed expert in constitutional law, cyberlaw, and intellectual property — comes to Harvard from the faculty of Stanford Law School. Prior to joining the Stanford faculty in 2000, he was on the faculty of the University of Chicago Law School and Harvard Law School.

Dean Kagan and HLS have been on a tremendous hiring spree. One source sums it up: “Can we get a list of who’s left — not counting federal judges like Posner, Easterbrook and Calabresi — that Kagan hasn’t scooped up in the last few years? Dworkin? Ackerman? Epstein?”

Says a second: “Dean Kagan is a juggernaut. In spite of losing about 25 percent of its endowment, Harvard is apparently not in a hiring freeze.”

More discussion, including words from Professor Lessig, after the jump.

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Larry Lessig Defends Pirates

By Kashmir Hill

Copyright_night_ripper_illegal_art.jpgStanford law professor Larry Lessig had an editorial in the Wall Street Journal’s weekend edition, “In defense of piracy.” Lessig starts off hating on the lawyers who went after the mother in the dancing baby/YouTube/Prince’s “Let’s Go Crazy” case. (Background here.)

How is it that sensible people, people no doubt educated at some of the best universities and law schools in the country, would come to think it a sane use of corporate resources to threaten the mother of a dancing 13-month-old? What is it that allows these lawyers and executives to take a case like this seriously, to believe there’s some important social or corporate reason to deploy the federal scheme of regulation called copyright to stop the spread of these images and music?

The answer: Crazy copyright law.

Lessig goes on to defend others whose creativity is derived from others’ creativity, like Danger Mouse and mash-up artist Girl Talk, whose latest album samples from 300 different songs. No rights acquired.

Midway through, the editorial goes into “Braveheart” mode. There’s a war going on, says Lessig– the “copyright wars.” Kids these days are sharing copyrighted material through peer-to-peer networks, while the art world is embracing a rampant remix culture.

This war must end. It is time we recognize that we can’t kill this creativity. We can only criminalize it. We can’t stop our kids from using these tools to create, or make them passive. We can only drive it underground, or make them “pirates.” And the question we as a society must focus on is whether this is any good. Our kids live in an age of prohibition, where more and more of what seems to them to be ordinary behavior is against the law. They recognize it as against the law. They see themselves as “criminals.” They begin to get used to the idea.

That recognition is corrosive. It is corrupting of the very idea of the rule of law. And when we reckon the cost of this corruption, any losses of the content industry pale in comparison.

That’s heavy. Lessig’s suggestions for ending the war, saving our lawless kids, and encouraging creativity, after the jump.

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Larry Lessig: Not the Next Obama

By David Lat

Draft Lessig 2 Change Congress Professor Lawrence Lessig Larry Lessig Above the Law blog.jpgA brief update on an earlier story. Last week, we mentioned that celebrity cyberlaw prof Larry Lessig, of Stanford Law School, was contemplating a congressional bid. His prospective campaign would be centered on the theme du jour of Change (in this case, of Congress).
Many ATL commenters didn’t think highly of the idea:

“He has NO chance against Jackie Speier.”

“He can’t exactly self-fund, and the primary is just over three months away. I like the fellow well enough, but this seems foolhardy.”

“Jackie Speier has this thing locked up. She has name recognition, prior elected experience, the endorsements of everyone who matters, party money, and a compelling story that involves getting shot several times by crazy people. Beat that.”

Professor Lessig apparently decided he couldn’t. For his official statement on why he decided not to run, see his website.
P.S. Are we sure Professor Lessig couldn’t have pulled this off? After all, he is a former Supreme Court clerk (Posner / Scalia). Those folks can do anything they set their formidable minds to!
From Larry [Lessig08.org]
Lessig Decides Against Run for Congress at Internet Speed [The Lede / New York Times]
Larry Lessig: I’m not running for Congress [The Iconoclast / CNET]
Earlier: Following in Obama’s Footsteps? Professor Lessig Considers Running for Congress

Following in Obama’s Footsteps? Professor Lessig Considers Running for Congress

By David Lat

Draft Lessig Change Congress Professor Lawrence Lessig Larry Lessig Above the Law blog.jpgThe stereotypical law professor might be viewed as too disengaged from the “real world” to be a good politician. But as Barack Obama shows, it’s quite possible to move from legal academia into political life.
Now another prominent young law prof — who, by the way, is an outspoken Obama supporter — is contemplating Congress. From a Stanford Law School source:

Larry Lessig is considering a congressional run to replace Tom Lantos. Seems to have sparked a lot of energy and attention here on campus and in the Silicon Valley the last day or two.

No discussion yet about what happens to his Con Law class if he decides to run.

As Professor Lessig recently told the WSJ Law Blog, he wants to change the political process, primarily by reducing the influence of money and lobbyists on policy decisions. And what better way to reform the system than from within?
If you’re interested in expressing support for Professor Lessig, check out the links collected below. The Draft Lessig Facebook group already has over 3,000 members — but surely they’d welcome more.
Lessig ’08 [official website]
Draft Lessig – Change Congress
Draft Lessig for Congress [Facebook]
Law Blog Q&A With Lawrence Lessig [WSJ Law Blog]