As you all know by now, the Library has a new name – the Thomas J. Meskill Law Library. You may not be aware of Judge Meskill’s significant legacy of legal scholarship. While on the bench at the Second Circuit Court of Appeals Judge Meskill participated in several decisions that have had a lasting effect on the law.
One such decision was made in the case of Harper & Row v. Nation Enterprises, 723 F.2d 195 (2d Cir. 1983). That case involved the interpretation of the “fair use” statutes. Former President Gerald Ford had licensed his memoirs to Harper & Row which in turn had sold exclusive rights to Time magazine to publish excerpts. The Nation, without permission and in a clear attempt to scoop Time magazine, published the significant passages from the Ford memoir, A Time to Heal: The Autobiography of Gerald R. Ford. In the memoir Ford detailed why he pardoned disgraced President Nixon. The three judge panel ruled that publication of the material was protected from a claim of copyright infringement by the application of the fair use standards. Judge Meskill dissented. In possibly the most telling line from the dissent he said that “[c]ourts should be chary of deciding what is and what is not news.” 723 F.2d at 215. He went on to discuss the application of the fair use rules to the case at hand reaching a completely different result.
Ultimately, Judge Meskill’s analysis became part of Justice Sandra Day O’Connor’s ruling in the United States Supreme Court’s reversal of the Circuit Court. In Harper & Row v. Nation Enterprises, 471 US 539 (1985), Justice O’Connor cited Judge Meskill’s opinion while formulating the Court’s position.
A well written dissenting opinion can act as a signpost for future courts. Such an opinion can provide an alternate rationale that can be adopted by a court in explaining, limiting, or overturning a decision. This is exactly what happened in this case. The reasoning in Judge Meskill’s dissent was in large part adopted by the USSC and new law was made clarifying the limits of fair use.