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In Georgia v. Public.Resource.Org, Inc., the Supreme Court resurrected a nineteenth-century copyright doctrine – the government edicts doctrine – and applied it to statutory annotations prepared by a legislative agency. While the substance of the decision has serious impli­cations for due process and the rule of law, the Court's treatment of the doctrine recognized an invigorated role for courts in the development of copyright law through the use of principled reasoning. In expounding the doctrine, the Court announced a vision for the judicial role in copy­right adjudication that is at odds with the dominant approach under the Copyright Act of 1976, which sees courts as limited to interpreting and deferring to the text of the statute. This Piece unpacks the longstanding debate about judicial role in copyright that manifested itself rather vividly in the majority and dissenting opinions in the case. In the process, it shows how Chief Justice Roberts's opinion for the Court consciously unraveled a delicate – but undesirable – institutional balance that has come to be accepted within the world of copyright law, and imagines the consequences that it might have for the future of copyright adjudication and lawmaking.

American copyright law has undergone an unappreciated conceptual transformation over the course of the last century. Originally conceived of as a form of private law – focusing on horizontal rights, privileges and private liability – copyright law is today understood principally through its public-regarding goals and institutional apparatus, in effect as a form of public law. This transformation is the result of changes in the ideas of law and law-making that occurred in American legal thinking following World War II, manifested in the deeply influential philosophy of the Legal Process School of jurisprudence which shaped the modern American copyright landscape. In the Legal Process conception, determining the substantive content of the law is fundamentally a matter of identifying the institution with formal competence (and legitimacy) to decide the matter, and then deciphering its policies and directives for an area of law in a purposive manner. The heyday of the Legal Process School, the 1950s and 1960s, coincided with the period during which the current U.S. copyright regime was being constructed. Several of its core lessons find direct veneration therein, including: the centrality of legislation as the harbinger of copyright's policy and purposes, the primacy of collectivist copyright policy over individual copyright principles, a recognition of the limitations of courts and judge-made law, and the treatment of copyright as a specialized but autonomous body of law requiring expert administering. As this Article argues, the U.S. copyright regime is today better conceived of as a "legal process," wherein the law is dynamic, purposive, and multi-institutional in origin. Modern copyright thinking would do well to embrace this reality and develop mechanisms to deal with this fundamental – yet unacknowledged – transformation, which explains a variety of perceived anomalies and puzzles within the working of the system.

While scholars routinely question the normative significance of the distinction between public law and private law, few – if any – question its conceptual basis. Put in simple terms, private law refers to bodies of legal doctrine that govern the horizontal interaction between actors, be they individuals, corporate entities, or on occasion the state acting in its private capacity. Public law on the other hand refers to doctrinal areas that deal with vertical interaction between the state and non-state actors, wherein the state exerts a direct and overbearing influence on the shape and course of the law. The latter is epitomized by the areas of constitutional law, administrative law, and criminal law, while the areas of contract law, tort law, property law, and the law of unjust enrichment exemplify the former. Underlying this basic distinction is an important institutional dimension. Most areas that are treated as exemplifying private law are areas of the common law, meaning that they are judge made in origin. Common law rules continue to be policed and developed by courts incrementally, from within the context of individual disputes. Consequently, private law and the common law are routinely treated as synonymous and analytically coterminous with each other. While this characterization may have had few problems in simpler times, the emergence of the modern administrative state has served to render it grossly misleading in important respects. Treating private law as subsumed entirely within the common law has produced a critical blindspot for private law thinking. It causes discussions of private law to overlook the role of the legislature in governing horizontal legal interactions. In numerous areas, statutory intervention has come to supplement and modify common law rules. Indeed, several domains of horizontal interaction between private actors are today governed entirely by statutory law. While this neglect is for the most part seen in all common law countries, in the context of the United States it has come to be further entrenched by an influential development in post-World War II legal thinking that has given it a superficial structural legitimacy. And this is the reality that under the influence of the Legal Process school of thought, the subjects of "legislation" and "statutory interpretation" have come to be understood and theorized as public law subjects. By prioritizing form over substance and thus focusing on the institutional origin of the law rather than on its substantive content, this public law approach to legislation dominates American legal thinking today. As such, it has served to turn private law's legislative blindspot into a serious threat to the very analytical significance of private law thinking. This Article is an attempt to describe the basis and consequences of the disconnect between private law and legislation, both for private law theorizing and legal thinking more generally. It does so by focusing on "private law statutes," legislation (and legislative provisions) that creates or modifies rights and obligations between parties in their private capacities. Private law statutes do more than merely create private causes of action. While they create private causes, they do so on the basis of principles that are specific to the horizontal interaction between parties, rather than entirely for public-regarding policy reasons. While statutes in the areas traditionally identified as private law remain obvious examples, the category extends to altogether new domains as well.

Mahatma Gandhi is revered the world over for his views on freedom and nonviolence – ideas that he deployed with great success during India's freedom struggle. As a thinker, he is commonly considered to have been a moral idealist: anti-utilitarian in mindset and deeply skeptical of market mechanisms. Yet, when he engaged with copyright law – as a writer, editor, and publisher – he routinely abjured the idealism of his abstract thinking in favor of a lawyerly pragmatism. Characterized by a nuanced understanding of copyright law and its conflicting normative goals, Gandhi's thinking on copyright law reveals a reasoned, contextual, and incremental transformation over time, as the economic and political circumstances surrounding his engagement with copyright changed. In it we see a dimension of Gandhi's thinking, emanating from his training in the common law, which has thus far been ignored. This Essay traces the development of Gandhi's views on copyright to show how he anticipated several of the central debates that are the staple of today's copyright wars, and developed an approach to dealing with copyright's various problems – best described as "copyright pragmatism." Revealing distinct similarities to both legal and philosophical pragmatism, copyright pragmatism critically engages with copyright as a legal institution on its own terms, examining its working contextually with an eye toward its various costs, benefits, and normative goals. The Essay then unpacks the analytical moves that copyright pragmatism entails to show how it holds important lessons for the future of copyright thinking and reform.