GBS: A Brief Statement of Principle

A structured, comprehensive settlement of the Google Book Search case offers enormous potential benefits to society. To the best of my understanding, however, the initial proposed settlement could not be defended on the basis of current law. The class-action device being used to present the settlement has never been used in this dramatic a fashion before.

Laws can change, and in our common-law system, courts can extend the law in the course of deciding cases. But blessing the procedural mechanisms used by this settlement carries enormous danger of abuse, not only in this case but also in future cases that might cite it as precedent. Thus, if the legal system is to approve the revised settlement, it must do so on the basis of a principle that (a) justifies the proposed arrangement, (b) applies to others who are similarly situated, and (c) has recognizable, enforceable limits. That principle is what we should be evaluating, not just the settlement itself.

I hope that such a principle exists. I do not believe that the parties have yet provided one. But the rule of law demands no less.

“a principle that (a) justifies the proposed arrangement, (b) applies to others who are similarly situated, and (c) has recognizable, enforceable limits”

That’s called, “legislation”.

Perhaps my comment appeared snarkier than it was intended to be. I appreciate James’ point, but my point is that to think that we need to come up with a principle that would permit policy-making like this by the courts (assuming, arguendo, that one thought the GBS scheme not merely potentially capable of serving the public good, but also fair) would indicate a truly profound loss of confidence in the ability of the legislative branch to carry out its core functions, in which this sort of rulemaking is so clearly included.

I realize that there are many who are frustrated by legislative inaction (or capture by publishers with very different copyright interests from those of most writers or readers) in this area, but one should think long and hard before making fundamental structural changes in the division of legislative and judicial powers in order to achieve a specific substantive result on a specific issue.

Structures and procedures gerrymandered to produce a particular result on a single issue tend not to work at all, or to have serious unintended negative consequences, as they come to be applied to other issues.

I think we agree more than you suggest.

My main point is that the rule of law demands principled generality. Both legislative and judicial law-making must conform to it, albeit in different ways. Judges do make law, and when they announce a rule of decision it is supposed to provide prospective guidance. I would like for an improved version of the settlement to be possible. But the essential precondition of that is that it be justified in a principled fashion, not merely on the grounds that the particular results in this case would be good.