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Counter-Majoritarianism and the Protection of Individual Moral Decisions

[This essay responds to a question about the proper role of judicial moral reasoning in a case where a terminally ill patient, Mr. Cohen, is challenging the constitutionality of a State prohibition on medical marijuana use. For the purposes of this question, I ignore federal drug law and any issues of federalism or conflict-of-laws.]
Also available as a printable PDF file.

To determine the constitutionality of the State’s marijuana prohibition as applied to a terminally ill patient such as Mr. Cohen, we must ask, first, whether it is appropriate for the Court to use moral reasoning in deciding this sort of claim, and second, what moral arguments support or undermine his claim. I will argue that judicial moral reasoning, while subject to legitimate criticism, is the most practical and effective way to read the Constitution in cases where the document and its history bear a number of potentially valid interpretations. Furthermore, the “right to be let alone” is a fundamental component of substantive due process under the Fourteenth Amendment and should be protected by the Court, even when the majority wishes otherwise. Moral arguments favoring this interpretation need not be premised on the existence of a “moral elite” whose judgment is superior to that of the majority, but rather on the necessity for counter-majoritarian checks within the democratic structure set out in the text of the Constitution itself. When a judge reasons on a moral basis, she does not substitute her moral judgment for the legislature’s, but protects the fundamental rights of individuals to make critical moral decisions themselves.

Critics of judicial moral reasoning object to the notion that judges should be anything other than “neutral” agents who apply the law created by duly-elected representatives of the people.^{1, 2} According to these “originalists”, a judge should not rule based on what they think is a preferable outcome, rather they must rule as the law demands.³ The law, in their understanding, is a fait accompli when it emerges from the legislature, and any confusion regarding its meaning is best resolved by examining the original intent of its drafters. When circumstances arise that were clearly outside the contemplation of the drafters, or societal values change such that the original intent no longer represents the will of the people, then it is beyond the judiciary’s power to make new law or strike down old; rather, they should wait for the legislature to perform its function. This balance forbids the Court from making major moral decisions, and claims to be the most accurate realization of the democratic ideals expressed in the Constitution and in the history of the United States.

This “originalist” conception, however, does not do justice to the intent of the framers, as evidenced by the very text which it claims to preserve.⁴ Ronald Dworkin’s call for a moral reading of the Constitution comes from the observation that the Constitution itself articulates broad moral principles that require judges to use moral reasoning.⁵ The framers knew the difference between specific language intended to effect a particular result and broad language intended to embody overarching moral principles. For example, the Third Amendment prohibition on the quartering of soldiers in houses during peacetime articulates, in clear language, exactly the government action that the framers intended to prohibit.⁶ On the other hand, the Fourteenth Amendment, rather than mandating a particular treatment of race consonant with the beliefs and values of the framers at the time, instead provides a set of principles for the Court and Congress to follow and develop. In order to make sense of these principles at all, Dworkin argues, a judge must exercise moral judgment. The text practically demands moral interpretation in order to be given meaning.

To be sure, this doesn’t give the judge free reign to rule based entirely on her personal conscience. Stare decisis, history, precedent, and the text of the Constitution itself are usually determinative in a case. In cases where multiple plausible interpretations exist within these constraints, however, Dworkin suggests that the Constitution is best interpreted through moral judgment. Dworkin’s critics claim that the judiciary must defer to the legislature when the Constitution does not, on its face, speak to the case at hand, but this would constitute an abdication of the special role which the Constitution provides, that is, the protection of certain liberties against the tyranny of the majority. In order to exert this protection, the Court must interpret the principles laid out in the Constitution; since these are moral principles, they are best interpreted with moral judgment.

Moral reasoning, when applied to claims like Mr. Cohen’s involving the right of an individual to certain medical treatment, inevitably results in claims that the Court has become politicized and lost any honest, principled basis for making decisions. Bork connects the moral mode of constitutional interpretation with the politicization of the Court that ultimately led to his ousting as Supreme Court nominee. His autobiographical narrative of the nomination process suggests that it was “[…] one battleground in a long-running war for control of our legal culture, which, in turn, was part of a larger war for the control of our general culture.”⁷ The issue at stake for Bork was the most legitimate method by which to read the Constitution. He views the street protests, the media flurry, and the political grandstanding directed against him as misguided attacks, since what he stands for as a judge is not a particular set of political views or judicial results but rather integrity in constitutional interpretation.

Bork never stops to consider, however, that perhaps he was not nominated for his advocacy of a particular mode of judicial reasoning, but instead specifically because of the results his jurisprudence would reach. Although he would prefer that the confirmation process be de-politicized, this is essentially impossible because its origin is rooted in the political decisions of the President of the United States. It is obvious that the President acts under enormous political pressure from various constituencies to achieve certain results; is it reasonable to believe that his decisions concerning the Court are uniquely shielded from political imperative? Although for Bork the battle concerned competing judicial methods, for the rest of the country, the battle concerned the potential results.

Eventually, Bork’s opponents organized enough grassroots pressure to defeat his nomination. For Bork, this evidenced a failure of democracy, as the Court slipped further into moral reasoning and accompanying politicization. Is a successful campaign founded on widespread popular dissent against a particular nominee necessarily a failure of democracy? Perhaps this is exactly how democracy is supposed to function. The strongest check the Constitution provides to the legislature against the judiciary is the power to reject judicial nominees. Since the legislature is ordinarily presumed, by originalists like Bork himself, to represent the will of the people, it would seems that the rejection of a particular Supreme Court nominee, whether on the basis of his mode of reasoning or the results he would likely reach, is actually an example of the Constitution’s democratic checks and balances functioning at their best.

If we are willing to accept a possible role for moral arguments in Constitutional claims, it still remains to be seen how these arguments might be applied to Mr. Cohen’s claim concerning access to palliative care prohibited by the state. In particular, we must decide whether medical care of this sort is a fundamental component of the liberty protected by the Fourteenth Amendment. In recent cases, the Court has relied heavily on history to determine whether or not a right is “fundamental.”⁸ Although it is reasonable to say that there is little basis, historical or otherwise, for a “fundamental right to smoke marijuana”, there is a deep-rooted tradition which Justice Brandeis describes as “the most comprehensive of rights and the right most valued by civilized men…the right to be let alone.”⁹ The right to decide what is best for oneself, when that decision will not adversely effect the interests of others, comprises perhaps one of the most fundamental liberties the Constitution guarantees and the Supreme Court is charged to uphold.

Although laws such as the one prohibiting the use of marijuana for medical purposes are often justified on the basis of their benefits to society at large, rather than on a paternalistic basis, it is hard to see these benefits as being anything other than pretextual in the case at hand. Mr. Cohen already has legal access to marijuana in pill form; any harm to society resulting from his access to the same substance through a different delivery system can only be understood as metaphysical at best. Although I might claim psychic pain simply because I have knowledge that my neighbor might be using marijuana for medical care, this is hardly the kind of harmful effects that social legislation ought to be preventing. Furthermore, the fact that some patients (who have the ability to swallow pills) can legally obtain the drug while others who need an alternative delivery system are denied access may simply fail the Court’s long-held rational basis test, thus violating the equal protection clause of the Fourteenth Amendment, even if cancer patients are not considered a “suspect classification.”

John Stuart Mill argued against the need for paternalistic or abstractly moralistic legislation in a democratic society, suggesting that the entity least likely to err when deciding what is best for a person is the person himself.¹⁰ If an individual’s acts are misguided but do not cause harm to others, Mill argues, then social disapproval alone will be sufficient punishment for the misguided acts. In the case of Mr. Cohen, we are not merely arguing about an individual’s rights to make potentially misguided or immoral choices, however, we are arguing about his very right to enjoy life at all, given the discomfort he experiences from the cancer medication. Furthermore, as his condition has been diagnosed as terminal, the choices he makes now determine how he will pass the remaining days of his life and how he will be remembered. These are extraordinary personal decisions that only Mr. Cohen himself is in a position to make.

If the Court accepts these moral arguments and refuses to apply this statute to Mr. Cohen, we should carefully take stock of what has actually happened. Critics will claim the Court has substituted its own moral judgment for that of “the people” and thereby undermined our democratic foundations. This characterization is deceptive, however, since the Court is not actually putting its moral imprimatur on marijuana use by the terminally ill. It is simply declaring the matter within the “rightful limit to the sovereignty of the individual over himself”.¹¹ So long as our actions do not cause harm to others, fundamental decisions about how we live and die, and what meaning we chose to ascribe to our lives, should be outside of the realm of both the judiciary and the legislature. Although these principles, embodied in the spirit of our Constitution, do require the Court to exercise moral reasoning, they ultimate exist to protect the people’s own individual rights to make these moral decisions for themselves.

Footnotes

…¹

Robert H. Bork, The Tempting of America (The Free Press 1990).

… ²

Michael W. McConnell, Symposium: Fidelity in Constitutional Theory: The Importance of Humility in Judicial Review: A Comment on Ronald Dworkin’s “Moral Reading” of the Constitution, 65 Fordham L. Rev. 1269 (1997).

…³

Robert Bork describes an encounter between Justice Holmes and Judge Learned Hand in which Hand urges Holmes, “Do justice, sir, do justice,” to which Holmes replies, “That is not my job. It is my job to apply the law.” Bork, supra n. 1, at 6 citing E. Sergeant, “Justice Touched With Fire,” in Mr. Justice Holmes 206-07 (F. Frankfurter ed. 1931); H. Shriver, What Gusto: Stories and Anecdotes About Justice Oliver Wendell Holmes 10 (privately printed 1970).

…⁴

“[W]e must never forget, that it is a constitution we are expounding.” McCulloch v. Maryland, 17 U.S. 316 (1819). The mode of analysis advocated by these originalists, while appropriate to statutory intrepretation, fails to capture the greatness evinced in one of Justice Marshall’s most famous opinions. The Constitution is not merely to be applied by the court, it must be expounded.

…⁵

Ronald Dworkin, Freedom’s Law: The Moral Reading of the American Constitution (Harvard University Press 1996).

…⁶

Id. at 6.

…⁷

Bork, supra n. 1, at 271.

…⁸

See Washington v. Glucksberg, 521 U.S. 702 (1997). Michael H. v. Gerald D., 491 U.S. 110 (1989). Bowers v. Hardwick, 478 U.S. 186 (1986).

…⁹

Bowers v. Hardwick, 478 U.S. 186, 199 (1986) (Blackmun, Brennan, Marshall & Stevens, JJ., dissenting). Olmstead v. United States, 277 U.S. 438, 478 (1928) (Brandeis, J., dissenting).

…¹⁰

John Stuart Mill, On Liberty (originally published 1859), .

…¹¹

Id. at Ch. 4.

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• Essays
  Mostly unpublished documents tending towards the “opinion” side of the spectrum.
• Reports
  Factual accounts from actual events, if you believe me.
• Poems
  Some poetry I’ve written, mostly from several years ago.

(after Rilke)

Written Spring, 1998 |

Commercial and Public Interest Issues

Introduction

Intellectual property (IP), a broad category encompassing several forms of legally protected creative works, has come to occupy an increasingly pivotal role in the domestic economy and international trade over the past several decades. Although the various areas of intellectual property law—patent, copyright, trademark, and trade secret protection—are based in different doctrinal frameworks and constitutional foundations, they share important commonalities within the legal system. The dynamic growth of technology and innovation has largely outpaced the development of relevant law, and intellectual property’s global reach only exacerbates shortcomings in traditional nationally-based dispute resolution methods.

In the absence of reform from the court system or legislatures, international intellectual property interests are increasingly embracing alternative dispute resolution (ADR) methods rather than litigation for commercial disputes. Mediation and arbitration offer significant benefits in this domain; the usual advantages of ADR are amplified in the complex, fast-moving world of commercial intellectual property rights. Since the public interest is nearly always implicated in IP disputes, however, this trend must be examined critically. This paper will discuss some of the commercial benefits and public interest concerns of ADR in international intellectual property disputes, and describe some of the specific institutional resources currently available in this realm.

Commercial Advantages

ADR comprises a spectrum of dispute resolution techniques, ranging from direct negotiation between the disputing parties to a legally binding arbitration proceeding. In the former case, the parties control the process entirely and are free to negotiate any settlement they want, or can choose to not settle at all. In the latter, parties hand over decision-making power to a neutral third-party, and are often prohibited from unilaterally withdrawing from the process. In some cases, parties are barred from judicial appeal from an arbitrator’s decision except under very limited circumstances (e.g., misconduct or incompetence on the part of the arbitrator). Mediation lies somewhere in the middle: a third-party is employed to help the parties resolve their dispute and potentially make non-binding recommendations, but the parties themselves ultimately determine whether or not a settlement is reached. Frequently cited benefits of ADR techniques over litigation include savings of time and money, increased confidentiality, more flexible and effective solutions, continued positive relations between the parties when they need to work together in the future, the ability to pick a process and a decision-maker specifically suited to the parties’ needs, and conservation of judicial resources.

International intellectual property litigation is extremely expensive and time-consuming, even relative to other large-scale commercial litigation. Due to the highly technical and fact-based nature of many IP disputes, discovery costs are elevated, and the need for highly-paid expert witnesses and detailed reports exceeds many other types of disputes. Furthermore, since the judge and jury are generally lay people, parties go to significant lengths simply to educate the fact-finder as to the basic nature of the relevant technology. Studies have found that the median cost of patent litigation through discovery is nearly $500,000, and the median cost of a full trial is $750,000. Costs for patent cases routinely reach over $1,000,000 per party, and legal fees have occasionally risen into the hundreds of millions of dollars.¹ Travel costs in international disputes further increase the costs, particularly because the process can drag on for several years and proceed simultaneously in several different jurisdictions.

While mediator and arbitrator fees for intellectual property disputes are not cheap, they almost always represent a significantly more economical option. Even though the parties will still need to pay experts, they can select a mediator or arbitrator who is already knowledgeable in the field, thus obviating the need to educate a judge or jury from “square one”. They may also be able to rely on scientists and engineers from within their respective companies to explain the technical details particular to the dispute, rather than having to retain outsiders who will appear unbiased in laying out the foundational technical background for a case.

The advantages of an expedited process are particularly salient in IP disputes. Since patents constitute a time-limited entitlement (20 years from the time of filing in most cases), their value is significantly diminished when tied up in litigation. Complex IP cases routinely take years to litigate, and overworked federal courts with a statutory mandate to grant speedy trials to criminal defendants are unlikely to prioritize this sort of litigation on their dockets. Furthermore, the nature of technological innovation often renders the dispute moot with the passage of time. If the parties chose to engage in ADR, they can set their own time-table and not be at the mercy of a court system to resolve the dispute. Furthermore, potentially infringing activity becomes increasingly risky when the duration of the dispute is unknown, since damages and attorney’s fees are often awarded to victorious plaintiffs. If a defendant knows the matter will be settled one way or another within six months, she can decide whether to continue production and risk an injunction and damages for profits during that period, or to suspend production until the legality of her activity has been established. When the time line and potential costs are made more certain for all parties, they can make rational decisions that would be unavailable if they were subject to the vicissitudes of litigation. Matters are made even more certain when the parties have a pre-agreement not to appeal the resolution in court.

Another advantage of ADR that is crucial to intellectual property disputes is the confidential nature of the process. In a mediation, the parties and the mediator usually agree to strict confidentiality, with the understanding that only the settlement agreement itself will become public. Mediation confidentiality agreements are usually enforced by courts. Furthermore, in the international context, an ADR process allows the parties to avoid dealing with different rules surrounding confidentiality in multiple legal systems.

Since intellectual property and particularly trade secrets tend to lose their value when they become public information, the privileged nature of ADR proceedings often represents an invaluable benefit to the parties to the dispute. The common concern about bad publicity arising from any lawsuit is also addressed by the privacy available under ADR. In some situations, parties are prevented entirely from litigating because the business risks of exposing their trade secrets are too high. ADR provides an effective way to resolve these disputes when other options are unavailable.

Parties frequently will choose ADR when they want or need to have a continuing relationship past the dispute. Since IP disputes frequently involve joint research ventures, long-term licensing agreements, and other arrangements that may only bear fruit over extended periods of time, the ability to preserve a working relationship may be more important in these disputes. Technology can rarely be developed today without the involvement of numerous distinct entities; thus, the availability of ADR may be increasingly indispensable to scientific progress and collaboration.

The Public Interest

Alternative dispute resolution techniques for international intellectual property matters are not without shortcomings, however. In fact, many of the strengths described above raise significant public policy concerns. While one could argue that the public has some interest in every legal dispute, this interest is intensified when intellectual property matters are involved. Intellectual property protection is premised on a delicate balance between an inventor’s need to be compensated for her work and the public’s interest in accessing that work. As intellectual property rules are harmonized worldwide under organizations like the World Intellectual Property Organization (discussed below), the World Trade Organization, and the like, the framework for resolving these disputes is increasingly a global issue.

The Commerce Clause of the United States Constitution grants Congress the power to establish limited monopolies to establish incentives to promote creative work. The essence of this balance is struck in the judiciary, where a court is called upon to weigh various statutory and judicially-defined factors to determine whether or not the state will enforce this monopoly. While this legal framework underlies ADR as well as traditional litigation, the need for public access is likely to be weighed less heavily when ADR is used. In a mediation, all that is required is that the parties come to a mutually satisfactory solution within the bounds of the law. They are not required to consider the public interest in the same way a court of law would.

Patent disputes provide a salient example of the different role of the public interest in litigation and ADR. The Supreme Court has spoken about the importance of the public interest in patent cases:

A patent by its very nature is affected with a public interest …. [It] is an exception to the general rule against monopolies and to the right to access to a free and open market. The far-reaching social and economic consequences of a patent, therefore, give the public a paramount interest in seeing that patent monopolies spring from backgrounds free from fraud or other inequitable conduct and that such monopolies are kept within their legitimate scope.²

Ordinarily, the first requirement in the prima facie case for patent infringement is to establish ownership of the patent on the part of the plaintiff, and secondly to establish that the patent is valid. Patents are found invalid for a variety of reasons, including lack of novelty, an overly vague patent description, abandonment of the invention, obviousness, etc..³ When a patent is found invalid in a court of law, this finding is frequently the result of an extensive discovery process. Once the patent is found invalid, the plaintiff no longer has exclusive rights to the invention, and the public can benefit from competition amongst various producers. This benefit is particularly acute when the invention involves medical technology, where society as a whole bears a large burden in paying monopoly prices for patented medicines, and many suffer from lack of access.

If parties decide to mediate a patent dispute, however, the discovery process can be cut off and a patent’s invalidity may never be revealed. Furthermore, the parties may find a mutually beneficial arrangement that preserves the patent even if it would have been invalidated by a court. They may find that they can earn more profits by entering into a licensing agreement so that both can produce the invention, thereby preserving a duopoly, rather than losing exclusive rights altogether, which might be the result of litigation.

Congress has taken some steps to mitigate this problem, for example by requiring public disclosure of settlements involving patent disputes. Furthermore, as in most other types of litigation, the great majority of patent dispute cases never even reach a full trial. Even in the Patent and Trademark Office, 80% of interference (contested patent) proceedings settle before a final judgment is reached.⁴ These disputes most commonly result in a license agreement between the parties. Since we can’t force the parties to go through with litigation once they’ve reached a satisfactory conclusion (although usually the court will have to approve a consent decree), it may be preferable to have a mediator or an arbitrator who can at least nominally insure that the public interest be considered by the parties to the dispute, rather than leaving the issue entirely in the hands of the parties’ negotiators.

ADR proponents often identify the ability to retain an expert mediator or arbitrator as a key advantage over litigation, where the finder of fact is either a judge or a jury, neither of whom is likely to have the specialized knowledge required to comprehend the technical details of the matter in question. An expert fact-finder, however, may introduce certain biases in the process that work against the public interest. Contract law, for example, has evolved over hundreds of years, and is grounded in equitable common law principles that ostensibly serve important public policy ends. In intellectual property litigation, a non-specialized judge may reframe the dispute within these well-established principles. The parties may argue that their dispute ought to be treated differently because it involves a new technology, but a court is unlikely to create new exceptions in the law simply because a new invention is involved. An expert mediator or arbitrator, on the other hand, is more likely to see the dispute from the parties’ perspectives, possibly resulting in a process skewed away from legal principles that serve the public interest. Furthermore, while a jury may not possess expert knowledge, it does represent the conscience of the community, which is an important voice to be heard in resolving disputes.

Another public interest question is whether the shift towards ADR in intellectual property disputes actually encourages disinvestment in our legal system. For example, Canada has only recently embraced ADR, lagging behind the US and Western Europe. This is because, in the words of one commentator, “until recently, the Canadian system was sufficiently funded to ensure speedy access.”⁵ Although the federal court system backlog is frequently cited as a reason to engage in alternative dispute resolution, it is possible that the increasingly widespread availability of ADR could encourage Congress further to reduce funding for the judiciary, leaving the court system as a “worst case” option for those who do not have access to ADR for various reasons. As the backlog lengthens, parties can strategically refuse to mediate, and rely on the slowness of the courts to outlast their adversary. Perhaps the solution to an overworked judiciary isn’t necessarily to push parties towards ADR, but rather to provide sufficient resources for the courts to resolve disputes in a timely manner.

If the growing importance of ADR reflects a trend towards “privatizing” the judiciary, we should take stock of the long-term ramifications of this trend before public law loses its relevance entirely. It may be possible in institute safeguards to prevent ADR decisions from moving too far away from what a court would decide. For example, if contracts waiving the right to judicial appeal were found to be unenforceable as a matter of public policy, an arbitrated or mediated resolution would be more likely to hold closely to established law, since a significant departure would be overruled by a court.

International Intellectual Property Mediation in the Real World

An institutional basis for international intellectual property protection has been evolving since the late 19^th century. Arising out of the Paris Convention of 1883 and the Berne Convention of 1886, the United International Bureaux for the Protection of Intellectual Property (BIRPI) was established to help nationals of treaty member States obtain international protection of their right to control, and receive payment for, the use of their creative works. In 1970, BIRPI became the World Intellectual Property Organization (WIPO), which today comprises 179 member states, has a staff of over 850 and a yearly budget of nearly half a billion dollars. Among other activities, WIPO facilitates the coordination and enforcement of treaties for the protection of intellectual property amongst all its members.

WIPO provides alternative dispute resolution services specifically tailored towards international intellectual property matters. Numerous other organizations exist which can also handle these sorts of disputes, including the International Chamber of Commerce Court of Arbitration, American Arbitration Association, and the London Court of International Arbitration; however, only the WIPO Arbitration and Meditation Center specializes in international IP disputes. The WIPO Center was only established in 1994, however, so potential clients have to decide between more well established but general ADR entities like the AAA and the intellectual property-specific Center.

Since confidentiality frequently weighs heavily in the decision to use ADR for IP disputes, the WIPO Arbitration Rules contain provisions for strong confidentiality. Furthermore, parties to the dispute have the option of having a confidentiality advisor appointed to their case. This advisor is an expert to whom trade secrets can be disclosed without fear that the information will be exposed to the other party. In some cases, the confidentiality advisor will even receive information that is kept secret from the arbitrator himself.

For mediation, the WIPO Center provides the parties with an option between a “facilitative” mediator who will focus on the process of helping the parties understand each other’s interests and bringing them to consensus, and an “evaluative” mediator who will take a more active role in resolving the dispute and make specific recommendations based on an expert background. In the latter case, the mediator’s recommendations are not binding but can help frame the mediation process.

Several other factors distinguish the WIPO Center from other ADR options. The Center provides specific rules for the introduction of technical and experimental evidence to serve the needs of their clients. It is located in Geneva, which may be seen as more “neutral” territory for international disputants than other locales. The Center’s staff, arbitrators, and mediators, come from dozens of nations, and the Center actively promotes its experience in working with situations that include cultural, linguistic, and institutional diversity. Some international companies view organizations like the American Arbitration Association as being more closely linked with the American legal system and the International Chamber of Commerce in Paris as being closely linked with European law, while the WIPO Center is not necessarily perceived as favoring one legal system over another.

The WIPO program provides meeting space free of charge to parties who want to engage in ADR at the Center in Geneva; alternatively, WIPO mediators and arbitrators are available throughout the world. Parties can choose to mediate in any country, in any language, and under any law. This flexibility is a great advantage to the WIPO ADR process, where technical disputes may involve many interdependent parties located in many different countries.

Finally, the WIPO Center can be somewhat less expensive than other ADR options for large commercial clients at the low end of its fee scale. The Center charges a registration fee equal to 0.10% of the amount in dispute, up to $10,000, and either an hourly or daily fee for the mediator’s services, based on a number of factors including the complexity and economic importance of the dispute, as well as the experience of the mediator. Hourly fees range from $300 to $600, and daily fees range from $1,500 to $3,500. By default, the parties share the cost of the mediation equally, although they are free to negotiate alternative arrangements.

The Center has had a fairly slow start in gaining acceptance in the commercial world. Although it was founded in 1994, by mid-1997 it had not yet handled any disputes. The Center attributed this slow start to the fact that ADR is most commonly entered as a result of a contract clause requiring it in the event of a dispute. Since the Center was only founded in 1994, one would expect several years to pass before contracts would be formed specifying the Center as the dispute resolution forum, and for those disputes to arise.

Today, the Center has found a niche in resolving international Internet Domain Name disputes, which frequently implicate trademark law. In 2001, the Center received 1,506 domain name dispute cases involving 94 countries. The entire procedure is conducted on-line, and usually results in an enforceable decision within two months. The Center’s process is based on the Uniform Domain Name Dispute Resolution Policy promulgated by the Internet Corporation for Assigned Names and Numbers (ICANN), which handles the technical aspects of the Internet “root server” system and ultimately has the power to enforce domain name assignments.

It is clear from the Center’s promotional materials, however, that its process is intended to favor trademark holders over the general public. They claim to be “the leading dispute resolution service provider for challenges related to abusive registration and use of Internet domain names, commonly known as ‘cybersquatting’.”⁶ Trademark holders come to the WIPO Center in order to claim domain names in a cheap and expedited fashion. In many cases, it might not be worth the trouble for a trademark holder to bring an alleged infringer to court, particularly given the expense and jurisdictional issues when the parties are in disparate countries and the infringement claim itself may be dubious. Providing a quick and inexpensive alternative, while theoretically in a “neutral” forum, may constitute an inherent bias for large corporate trademark holders over lone individuals. ICANN’s Uniform Domain Name Dispute Resolution Policy has been criticized on similar grounds.⁷

Conclusion

ADR’s rapid growth in the world of dispute resolution over the past decades has paralleled that of intellectual property in the global economy. Given the increasingly complex and international nature of intellectual property creation, ADR solves a number of important problems with traditional nationally-based litigation. Some of ADR’s greatest strengths in intellectual property disputes, however, also raise serious public policy concerns. Institutions like the World Intellectual Property Organization Arbitration and Mediation Center provide valuable resources in the field of ADR, but too little attention is paid to the fundamental right of the public to access creative works in return for the benefits accrued to creators when they are granted limited monopolies. Increasing dependence on ADR in these disputes is probably inevitable, so national and international governments should take care to insure that the public interest is not foreclosed from this process.

Bibliography

Blackmand, Scott H. Alternative Dispute Resolution in Commercial Intellectual Property Disputes. 47 Am. U. L. Rev. 1709. 1998.

Elleman, Steven J. Problems in Patent Litigation: Mandatory Mediation May Provide Settlement and Solutions. 12 Ohio St. J. on Disp. Resol. 759. 1997.

Electronic Frontier Foundation website. http://www.eff.org (8/1/02).

Electronic Privacy Information Center website. http://www.epic.org (8/1/02).

Martin, Julia A. Arbitrating in the Alps Rather Than Litigating in Los Angeles: The Advantages of International Intellectual Property-Specific Alternative Dispute Resolution. 49 Stan. L. Rev. 917. 1997.

World Intellectual Property Organization Arbitration and Mediation Center Guide to Mediation. http://arbiter.wipo.int/mediation/mediation-guide/index.html. 8/1/2002. See also World Intellectual Property Organization website. http://www.wipo.org.

Zisk, Matthew B. Mediation and Settlement of Patent Disputes in the Shadow of the Public Interest. 14 Ohio St. J. on Disp. Resol. 481. 1999.

Footnotes

Kar-Wai Wong (people say “Wong Kar-Wai”) made Chung King Express (Chong Qing Sen Lin) in 1994 as a break from an epic film that he was having trouble finishing (I believe Ashes of Time). The film was shot in about two months, without a script.

The film is visually astonishing; the stylized cinematography is a transformative experience regardless of whether you understand the story. I’m not sure there really is a story, actually. At first, you’re following a woman involved in a complex international crime operation; but then it’s about a love-struck police officer; and then finally, about another love-struck police officer.

Although quite different in style and substance, Chung King Express conjures a visceral experience akin to Chris Marker’s Sans Soleil. If the imaginary and the visionary provide you with spiritual sustenance, this film will satisfy.

John Gorka is a master of the songwriting craft, perhaps enough to make me reconsider my statement that Paul Simon may be the only truly great songwriter.

Travel becomes meaningful when we move on to the next place. We live to create memories, both for ourselves and for others. So long as we are in a place, the possibilities of who we are are limited to the perceptible. We are gone, and those we leave behind can imagine us however they like; as we them.

My favorite line is “People love you when they know you’re leaving soon.”

 There is nothing in my head today Nothing awful there to ponder or confuse me Go ahead in what you have to say And I will listen as I listen to the news I know the whole truth there is horrible It's better if you take a little at a time Too much and you are not portable Not enough and you'll be making happy rhymes You might like the gypsy life You judge your progress by the phases of the moon Get your compass and your sharpest knife People love you when they know you're leaving soon If you choose to settle in one place You may be harder over on the ones you love Like a tree without the growing space You will be taking from below and from above There is nothing in my head today I'll cross the river people as I cross my heart The pigeon bridges are a place to stay I will go under as I try to do my part 

This song is really an original psalm, from Bob Dylan’s 1970 album New Morning (a gift from my Uncle Glenn many years ago). I just recently “rediscovered it”, perhaps because I’ve conquered my prejudice against Dylan’s Christian inclinations. [His so-called “Christian phase” was actually not until ten years later.]

The descending female backup vocals haunt me (presumably Hilda Harris, Albertine Robinsin, and Maeretha Stewart); Dylan’s strikingly clean piano playing sustains his gravel voice. The song is over in less than a couple of minutes, but it leaves you silent, maybe fearful.

 Father of night, Father of day, Father, who taketh the darkness away, Father, who teacheth the bird to fly, Builder of rainbows up in the sky, Father of loneliness and pain, Father of love and Father of rain. Father of day, Father of night, Father of black, Father of white, Father, who build the mountain so high, Who shapeth the cloud up in the sky, Father of time, Father of dreams, Father, who turneth the rivers and streams. Father of grain, Father of wheat, Father of cold and Father of heat, Father of air and Father of trees, Who dwells in our hearts and our memories, Father of minutes, Father of days, Father of whom we most solemnly praise. 

I’ve recently been on a quest to find underappreciated songs by great musicians. Of course, it’s hard to truly believe anything by Paul Simon hasn’t received fairly widespread attention, but this one at least hasn’t made it onto any “Greatest Hits” albums.

I’ve come to believe that Paul Simon may be the only truly great songwriter.

This song, written in 1969, appeared on the Simon & Garfunkel album, Bridge Over Trouble Water, which (among other things) documented the demise of the duo.

My understanding of the song (based partially on this interview from SongTalk Magazine) is that it describes Simon’s feeling when Garfunkel left for Mexico to act in Catch 22. Early in their career, Simon and Garfunkel were known as Tom and Jerry, and “Tom” in the first and last verse refer to Garfunkel. “…your part’ll go fine”—since Garfunkel was just starting out an act career (which apparently didn’t go too far), Simon is reassuring him that he’ll do fine.

This bittersweet loneliness shows up in a lot of Simon’s work. Cities hold lots of people and little company. When your old friend or lover goes away, you wander city streets on a Sunday morning feeling unbearably light [Milan Kundera]; you are so close as to be vicariously lifted by your friend’s exhilaration, but at once you know longer know them, where they are, or where they’ve left you.

It’s interesting how many superficially opaque Simon songs become lucid with just a couple of “hints”; in this case, Tom & Jerry and the filming of Catch 22 in Mexico.

 Tom, get your plane right on time I know your part'll go fine Fly down to Mexico Da-n-da-da-n-da-n-da-da and here I am, The only living boy in New York I get the news I need on the weather report I can gather all the news I need on the weather report Hey, I've got nothing to do today but smile Da-n-do-da-n-do-da-n-do here I am The only living boy in New York Half of the time we're gone but we don't know where And we don't know where Tom, get your plane right on time I know that you've been eager to fly now Hey let your honesty shine, shine, shine Da-n-da-da-n-da-n-da-da Like it shines on me The only living boy in New York The only living boy in New York 

I just don’t get Wilco. So many of the people I love and respect see them as the next Beatles. It’s not that I find their music unpalatable, it just doesn’t “do it” for me. Perhaps some kind soul will take pity on me and help me see the light.