What Roe v. Wade Should Have Said

This is actually a post about copyright and attribution, no matter what the title might have made you think. Recently, NYU Press published What Roe v. Wade Should Have Said, edited by Jack Balkin. The idea, also expressed in Balkin's earlier volume What Brown v. Board of Education Should Have Said, is to have current scholars, using only materials available at the time of decision, write opinions that improve upon or at least add insight to the original opinions. My father, Mark Tushnet, chose as his contribution a slightly edited version of Justice Douglas's concurrence.

This is unproblematic as a matter of copyright law, though only because the U.S., somewhat unusually, denies copyright to federal government works. It's not plagiarism, because he says he's using Douglas's concurrence as his contribution, and even if he didn't say so, no one reading the book could be unaware of its origin. But in what sense is it, then, "his contribution"? I think it's a very important one: By selecting Douglas's words and arguments, he makes the claim that the Justices then did the best they could have done, being who they were when they were. In a sense, he argues against Balkin's project from within. David Garrow's review treats this as a serious and worthy part of the book. It's yet another illustration of how using someone else's words, copying their expression, can serve important communicative and persuasive functions.

(On the substantive point, I read a decent essay on the question of "What Would Buffy Do?" by Jason Kawal in Buffy the Vampire Slayer and Philosophy: Fear and Trembling in Sunnydale. Kawal's argument, illustrated by that question, is that counterfactuals of this sort always involve picking a level of generality which itself largely determines the answer. That is, if I'm locked in a room and ask "What would Buffy do?" the answer is "Kick the door down." But that's because Buffy has powers unavailable to me. If the question is "What would Buffy do if she had my powers, knowledge, habits and inclinations?" we are essentially asking "What would I do?" Balkin's project asks participants to act like Justices, but Justices with thirty years of post-Roe experience, and my father's contribution suggests that asking Justice Balkin to produce an opinion in 2005 will never produce results comparable to asking Justice Blackmun to produce one in 1973. So it may be a cool way to package a book of essays about Roe, but it's not really a historical project in the sense the title suggests.)