Wednesday, September 2, 2009
I was just perusing the ACS Blog and saw a post on Prof. James Gimmelman's take on the Google Book Settlement - which you may recall is the class action settlement that is giving Google a license to scan all the books in the world into a giant searchable database. Here is what Gimmelman says:
The settlement tackles the orphan works problem, but through the judicial process. Laundering orphan works legislation through a class action lawsuit is both a brilliant response to legislative inaction and a dangerous use of the judicial power. Many of the public interest safeguards that would have been present in the political arena are attenuated in a seemingly private lawsuit; the lack of such safeguards is evident in the terms of the resulting settlement. The solution is to reinsert these missing public interest protections into the settlement.
(Empahsis mine). Sounds familiar, doesn't it? Think about aggregate litigation -- all the safeguards of the class action device are absent because, well, its not a class action. (Gimmelman doesn't think those protections are enough and he's right). But when ostensibly individual lawsuits are resolved en mass, they are being treated as a class rather than individuals. There's no other way to resolve thousands of cases. People cry out for legislative solutions (asbestos anyone?) and nothing happens. Meanwhile, things happen in the world. People get sick. Defendants get sued.
How good is the legislature at dealing with these issues, if they were to turn their attention to it? Who would like the result? Is the problem the judicial process or the outcome? (That is, can judges do a good job here or are we really worried about legitimacy?) What is the public interest and who, if anyone, serves it? I'm worried that these structural issues - courts vs. legislatures - avoid the real areas of substantive disagreement.