McGowan, David --- "Copyright and Convergence: A Pragmatic Perspective" [2009] ELECD 517; in Brauneis, F. Robert (ed), "Intellectual Property Protection of Fact-based Works" (Edward Elgar Publishing, 2009)

Book Title: Intellectual Property Protection of Fact-based Works

Editor(s): Brauneis, F. Robert

Publisher: Edward Elgar Publishing

ISBN (hard cover): 9781848441835

Section: Chapter 7

Section Title: Copyright and Convergence: A Pragmatic Perspective

Author(s): McGowan, David

Number of pages: 34

Extract:

7. Copyright and convergence:
a pragmatic perspective
David McGowan*
To describe Justice Sandra Day O'Connor, scholars typically reach for such
words as centrist, moderate, pragmatic,1 Burkean, or minimalist.2 She is
supposed to have developed a `split-the-difference' jurisprudence,3 which
allowed her to occupy the `middle ground' on issues before the Court.4 Critics
said she employed `balancing tests only she could apply'.5 A critic grasping
for something nice to say actually restates the account: At least `she decided
the particular, and often sensitive, case before her'.6 An admirer counters with
a defense of her `down-to-earth realism'.7
Such a consensus makes Justice O'Connor's opinions an appealing if
imperfect ground for considering the relationship between pragmatism and the
law.8 Though few in number, Justice O'Connor's copyright opinions are at


* My thanks to Wendy Gordon, Mark Lemley, Glynn Lunney, Miranda
McGowan, and Lisa Ramsey for excellent comments. Remaining mistakes are my
fault.
1 Biskupic, Joan (2008), `The Alito/O'Connor Switch', 35 Pepp. L. Rev. 495,
496.
2 Sunstein, Cass (2006), `Burkean Minimalism', [2006] MichLawRw 55; 105 Mich. L. Rev. 353, 361.
Sunstein uses `Burkean minimalism' as one phrase to describe the style of judges
among whom he counts Justice O'Connor, but each part of the phrase has some signif-
icance, so I break them apart in the text.
3 Basiak, Jr., John F. (2007), `The Roberts Court and the Future of Substantive
Due Process: The Demise of "Split the ...