Defending Deference: A Reply to Professor Sylvain’s Disruption and Deference

Zahr K. Said

Professor Sylvain has written an engaging article full of contributions in a few related areas of law, and what he loses in doctrinal depth in a single area he more than makes up in the beneficial breadth of his comparative approach. Moreover, his syncretic approach across these three areas of law reflects the rare competence required fully to grasp contemporary media policy: More scholars ought to be attempting to cross these substantive boundaries to take in the entire picture. By drawing on insights from administrative law, and its telling absence as both a procedural and a substantive factor in the Aereo litigation, Sylvain offers a persuasive case for more attention to procedural authority in judicial review, and a case— though perhaps somewhat less persuasive—for greater judicial deference, too. Aereo provides a case study of judicial functionalism in service of achieving a particular outcome under copyright, an outcome in which substance seems to have trumped—we might say disrupted?—the proper scheme of judicial deference. Copyright’s outcome-myopia may serve a particular, consequentialist vision of law suited to areas of (or developed in response to) rapidly emerging technological development. But Sylvain’s article shows us that copyright’s focus on outcomes leaves a great deal to be desired when considered from the perspective of administrative law’s prescription of a carefully negotiated balance of powers.