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The institutionalist turn refers to the reality that over the last decade and a half, the Court’s copyright jurisprudence has come to focus less and less on directly resolving substantive issues within the landscape of copyright doctrine. It has instead become a principal site of debate and disagreement over issues that have a direct bearing on the role, competence, and legitimacy of the Court within the copyright system. The institutionalist turn does not imply that the Court’s decisions have altogether avoided engaging substantive copyright issues; merely that its engagement of copyright doctrine has come to be intertwined with — and often overshadowed by — strong institutional considerations. These considerations can be seen to cluster around three analytically interrelated themes: (i) the Court’s role as faithful agent interpreting Congress’s directives as contained in the complex Copyright Act of 1976, (ii) the nature of legislative-judicial interaction and deference in the domain of copyright lawmaking, and (iii) the continuity — or lack thereof — between copyright’s adjudicative mechanisms and other legal areas.

The institutionalist turn described herein began to take shape toward the end of Chief Justice Rehnquist’s time on the Court and fully crystallized several years into Chief Justice Roberts’s tenure. While Roberts was formally seated as Chief Justice in 2005, it was not until several years later that the Roberts Court began its foray into copyright jurisprudence, triggering the new institutional dynamic. Since that time, roughly a decade ago now, the Court has decided twelve copyright cases. By contrast, the Rehnquist Court decided a sum total of ten copyright cases in twice that amount of time. What is additionally intriguing about the Roberts Court’s copyright jurisprudence is its very selection of copyright cases and issues to address. Of the copyright decisions handed down by the Roberts Court half (six out of twelve) have been procedural and remedial, i.e., adjectival. In twice as much time, the Rehnquist Court handed down only two such decisions.

In what follows, I describe the origins and entrenchment of the Court’s institutionalist turn in its copyright jurisprudence and show how its copyright decisions reflect a heightened concern with the Court’s institutional role and legitimacy. While the turn may have resulted in substantive copyright law doctrine coming to be sidelined in the Court’s jurisprudence, it nevertheless entrenched a strong prudentialist impulse in the judicial engagement of the copyright system, one that directs attention away from the polarizing justificatory debates that have long surrounded substantive copyright law — often described as the “copyright wars.” Yet in so doing, it also indirectly complicated copyright’s own legitimacy crisis by injecting into it a new set of methodological disagreements involving statutory interpretation and the role of the judiciary in the copyright system.


Intellectual Property Law | Law

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