When Supreme Court Justice David Souter announced on May 1st, 2009 that he would retire, the Court lost one its most agile thinkers on the intersection of science, technology and law.
That mastery, on full display in Justice Souter’s opinion on the landmark file-sharing case MGM Studios, Inc. v. Grokster, Ltd., looks even more miraculous when compared with the Justice’s own personal relationship with technology.
Souter did not own a cell phone, an answering machine or a television. Not only did he not use email or a computer, he didn’t even use a typewriter, and wrote all of his opinions by hand.
In light of Souter’s retirement, PopSci.com spoke with Jeffrey Neuburger, Co-Chair of the Technology, Media and Communications Practice Group at the law firm Proskauer Rose, and Timothy Wu, a professor at Columbia Law School who specializes in telecommunications and net neutrality law, about the science and technology bona fides of the candidates most likely to replace Souter on the bench.
Elena Kagan is the current, and first female, Solicitor General of the United States. A Magna Cum Laude graduate of Harvard Law School, she clerked for Justice Thurgood Marshall. While Ms. Kagan has not herself written extensively on science and technology issues, according to Jeffrey Neuburger (Co-Chair of the Technology, Media and Communications Practice Group at the law firm Proskauer Rose), she is closely associated with Cass Sunstein. Sunstein wrote an early article about freedom of speech and the Internet, in which he thanked Kagan for her input. That association led Neuburger to say, “it may be suggested that she would be open to the views of someone like [Lawrence] Lessig, who frequently is on the side of less aggressive application of intellectual property law, particular as it affects technology.”
As a former Assistant Secretary of State for Democracy, Human Rights, and Labor, and as a current Legal Adviser of the Department of State, Koh’s writings have focused primarily on human rights law. According to Neuburger, Koh seems to have no particular interest in science or technology law.
Canadian-born Jennifer Granholm served as Michigan’s first female governor, and before that she was Michigan’s attorney general. Her technology and science interests skew towards the environmental, and Granholm spent much of her time as governor helping Michigan’s “green” businesses.
The first African-American governor of Massachusetts, Deval Patrick’s legal career focused more on civil rights than science. As governor, however, he repealed former Massachusetts governor Mitt Romney’s ban on stem cell research, saying “I believe that life sciences should be guided by science, not politics.”
Sullivan is a heavy hitter in the world of technology law, writing about the First Amendment and the Internet, and arguing cases like Universal City Studios v. Corley, an early and important case involving application of the Digital Millennium Copyright Act. According to Timothy Wu, a professor at Columbia Law school who specializes in telecommunications and net neutrality law, Sullivan “has a very deep understanding about what technology means for the speech environment. She made Stanford the academic voice for Silicon Valley. She gets it.”
Pamela Karlan is a professor at Stanford, along with Sullivan. Karlan co-authored an important paper for the Loyola Los Angeles Law Review, titled “The Soul of a New Political Machine: The Online, The Color Line and Electronic Democracy.” Her coauthor on that paper, Eben Moglen, was identified by Neuburger as one of the foremost thinkers about the legal issues related to open source software.
A current U.S. Court of Appeals for the 7th Circuit justice, and a former professor of International Studies at the University of Chicago, Wood dealt with technology transfer issues for the US State Department and sat on the 7th Circuit judges’ panel for cases involving the Communications Decency Act. In 2003, Wood wrote the opinion in a case that upheld the convictions of an Internet piracy ring.
Currently a judge on the US Court of Appeals for the 2nd Circuit, Sotomayor made a number of rulings on Internet-related issues. She ruled against Netscape in Specht v. Netscape, which Neuburger called, “a leading case” on how much notice software must give users about consenting to ‘terms and conditions.’ Sotomayor also wrote opinions about domain name squatting in (Mattel, Inc. v. Barbie-Club.com), and about workplaces searching computers (in Leventhal v. Knapek).