JUSTICE O’CONNOR’S OPINION IN FEIST PUBLICATIONS, INC. v.

RURAL TELEPHONE SERVICE CO.: An Uncommon Though Characteristic Approach*

By MARCI A. HAMILTON**

Justice O’Connor’s developed jurisprudence is most forcefully stated in her Establishment Clause and affirmative action cases.1 Probably few realize that in the last several years she also has become a force in the intellectual property area, especially the copyright arena. In the last three Terms, she has authored the Court’s major intellectual property opinion for that Term. Since 1985, she has authored four of the Court’s intellectual property opin ions. Given that the Court only grants one to two such cases each year, her contribution accounts for a substantial percentage of the Court’s intellectual property jurisprudence. Thus, we may learn a great deal about the direction of the Court in this area if we examine her writings in detail.

Her opinions in Harper & Row Publishers v. Nation Enterprises,2 Bonito Boats, Inc. v. Thunder Craft Boats, Inc.,3 Stewart v. Abend,4 and this year’s Feist Publications, Inc. v. Rural Telephone Service Co.5 cover a wide range of subjects: fair use of unpublished works, preemption of state law affecting pat ents, rights of derivative work assignees following the death of the author before the commencement of the renewal term, and the copyrightability of telephone book white pages. Of course, the full range of this rich assortment of topics cannot fairly be addressed in a 15-minute talk.

Supreme Court Report

O’Connor, J., Concurring

BY ALEXANDER WOHL
Alexander Wohl is a freelance writer in Washington, D.C.

If Justice Oliver Wendell Holmes Jr. was “the great dissenter,” does that make Justice Sandra Day O’Connor “the great concurrer”?

In delicate areas of the law it has become almost commonplace for 5-4 rulings by the Court’s conservative bloc to be embroidered-and often limited-by an O’Connor concurrence. Even though none of the other justices agree completely with her views, they in effect become the law because of her position near the center of the Court’s ideological spectrum. In this sense she has assumed or at least draped over one shoulder the moderate mantle of retired Justice Lewis F. Powell Jr.

Steven Katlett, who clerked for O’Connor two years ago and is now an associate with Jones, Day, Reavis & Pogue in Columbus, Ohio, thinks that “she appreciates [Powell’s] views and for this reason, as well as her general philosophy, she won’t sign on to wholesale revamping of Warren and Burger Court decisions.”

Another former O’Connor clerk states that O’Connor “is concerned about judicial activism, not in a political sense, but in the real sense that the Court should not jump into an issue just because it is controversial, but should try to be somewhat stable and consistent until it is really confronted with a situation where it has to make a change.”

In Pembauer v. City of Cincinnati (475 U.S. 469 [1986]), for

Rethinking Feminist Judging

MICHAEL E. SOLIMINE* SUSAN E. WHEATLEY**

INTRODUCTION

For nearly two centuries no woman served on the United States Supreme Court and very few served on either the lower federal courts or state courts. Today, Sandra Day O’Connor and Ruth Bader Ginsburg are members of the

U.S. Supreme Court, and burgeoning numbers of female judges have joined them on other federal and state courts.1 Contributing to this change, the Clinton administration is appointing unprecedented numbers of women to the lower federal courts.2

The increasing number of female judges, not coincidentally, has been accompanied by questions about whether female judges and female judging are distinctive in some way, and by calls for further increasing the number of female judges. Some writers assert that female judges approach cases and make decisions in ways that their male colleagues are unable or unwilling to do. According to these writers, most if not all female judges engage in contextual analysis, consider a broad range of factors, and tie their decisions less to arbitrary rules than to flexible standards.3 Drawing on these empirical

Copyright © 1995 by Michael E. Solimine & Susan E. Wheatley. All Rights Reserved.

* Donald P. Klekamp Professor of Law, University of Cincinnati College of Law. J.D., 1981, Northwestern University; B.A., 1978, Wright State University.

** Partner, Taft, Stettinius & Hollister, Cincinnati, Ohio. J.D., 1986, Northwestern University; B.A., 1982, Yale University.

SANDRA DAY O’CONNOR: JUSTICE, AMBASSADOR, AND ROLE MODEL

Over the last several years, the Supreme Court’s role has subtly changed, making Justice Sandra Day O’Connor more important to the Court than ever. Whereas the Court previously had mandated jurisdiction over certain cases, it now hears only those cases which the members of the Court deem worthy of consideration. As the press has noted, the number of Supreme Court cases has declined rather dramatically. The reasons for this decline are complex and, to some degree, impenetrable or at least unprovable. Part of the decline in the caseload, though, must be attributed to the fact that some of the previously “necessary” cases did not really require Supreme Court intervention. There has also been an apparent change in the philosophy of certiorari jurisdiction. The Court seems to wait longer now than it did before. But for exceptional cases, circuit splits need to be significant before the Court will grant certiorari on a particular issue. The Court seems to have adopted the attitude of a referee who waits until the players definitely require intervention before taking action. When a court behaves in this manner, it is tempting for its members to believe that they must issue rules that will provide guidance in every potentially related case. For some, bright-line rules and predictability become of paramount importance. The Court’s mission shifts on the margins from the common law model of resolving individual disputes to the civil

FIRST IMPRESSIONS: A TRIBUTE TO JUSTICE SANDRA DAY O’CONNOR

Viet D. Dinh*

Justice O’Connor cares about federalism, and here is how I know. I first met her after two nights without sleep. In typical law student fashion, I had prepared for the clerkship interview by read ing everything possible about the Justice – law review articles, ma jor opinions, transcripts of confirmation hearings, even a biography written for sixth graders. I prepared a list of questions and answers, talked to professors, and practiced with friends.

All for naught. After pleasantries about writing and the Court, my discussion with the Justice took a curious turn. Referring to my first summer in college, Justice O’Connor said, “I see you were an intern for the City of Yorba Linda.” I muttered a flustered re sponse, and we spent a good deal of time talking about my experi ence working for city governments and my college thesis on local politics.

During our conversation (and in her various public com ments), Justice O’Connor drew upon her own career in state gov ernment. Before her appointment to the Court,Justice O’Connor was a veteran of Arizona government, both in the judiciary and the legislature, where she served as majority leader. This experience gave life to her respect for the federal system, a system which Si mon Bolivar once criticized as “over perfect” and which “demands political virtues and talents far superior to our own.”1 Recent deci sions from the Court concerning feder alism2 and proposals