Objection to "reasonable" may perhaps be taken on some aesthetic level, but hardly on the ground that it offends constitutional norms. The point, of course, is not that, in the formulation of statutory standards for the guidance of agencies doing the legislature's bidding vagueness is to be prized. The point is that in many instances-and the proportion of these instances increases with the complexity and multiplicity of the jobs government undertakes-categorical delineation is an illusory objective. The point is succinctly illustrated by a comment made by Professor Kenneth Culp Davis on a sequence of two New Jersey cases: In the first case, decided in 1949, the New Jersey Supreme Court invalidated, for lack of adequate standards, a statute providing for compulsory arbitration of labor disputes between a public utility seized by the governor and the employees of the seized utility.' The New Jersey Legislature then passed a new compulsory arbitration statute, directing the arbitrators to "make a just and reasonable determination of the dispute," and outlining a number of amorphously contoured sub-ingredients of "just and reasonable" which were to be taken into consideration by the arbitrators. The New Jersey Supreme Court upheld the new statute, finding the new standards "adequately definitive." " 8 Professor Davis, plainly skeptical of the first decision, welcomed the second, but wholly disagreed with its rationale: The protection against arbitrariness did not lie in the statutory standards; it lay in the procedural safeguards, especially in the requirement of written findings of fact "upon the issue or issues." 19 In similar fashion, Section 804 of H.R. 2223 requires the Copyright Royalty Tribunal to proceed with procedural regularity and to render a decision which "shall be in writing and shall state the reasons therefor." (2) Professor Gellhorn's Memorandum also takes exception to the composition of the Copyright Royalty Tribunal. The asserted defects are two-fold: The first of these is that the Tribunal has no continuity of membership. Because of this, so it is argued, the Tribunal members will not acquire the case-by-case expertise which could over time give content to the statutory standard. The argument has a superficial appeal, but it is an appeal which loses much of its weight when it is recalled that the Tribunal will only be convened to consider adjustment of the cable television royalty schedule at five-year intervals." Of course, a plausible case can be made for constituting the Tribunal as a continuing body on a stand-by basis; but it would be extravagant to contend that such an elaborate structure is constitutionally compelled.1 The second objection to the Tribunal's composition is that the Tribunal is to be selected from members of the American Arbitration Association. "Arbitration," says Professor Gellhorn, "involves no tradition of adherence to precedent or to some consistent principle of decision. It treats each case on its own bottom and therefore evolves no reliable way to handle future cases." (Gellhorn Memorandum, p. 9). With all respect, Professor Gellhorn's strictures about arbitration seem somewhat beside the point. The fact that the Tribunal is to consist of persons with broad arbitral experience does not, of course, show that their role as Tribunal members is to be arbitral in nature. With equal justice, it could be argued that Article 4 of the Statute of the International Court of Justice is defective insofar as it vests the critical responsibility of nominating Judges of the International Court of Justice in "the national groups in the Permanent Court of Arbitration." It is H.R. 2223, not membership in the American Arbitration Association, which defines the function of the members of the Copyright Royalty Tribunal. Their function is not to arbitrate disputes; it is "to make determinations concerning the adjustment of the copyright royalty rates specified by Sections 111 and 115 so as to assure that such rates are reasonable," 13 and, when adjustment appears 7 State v. Traffic Telephone Workers' Federation, 66 A. 2d 616. 2 N.J. 335 (1949). New Jersey Bell Tel. Co. v. Communications Workers, 75 A. 2d 721, 729, 5 N.J. 354 (1950). • Ibid. 10 Davis. Administrative Law Text (1972) n. 38. 11 H.R. 2223 also vests in the Tribunal the authority to adjudicate controversies as to the distribution of cable television royalties among numerous claimants (see §§ 111(3)B, 801(b)(2). 808); but this aspect of the Tribunal's work appears to lie outside the main thrust of Professor Gellhorn's objections to H.R. 2223. See Text at notes 17 and 18, infra. 12 See note 15. infra. 13 Section 801 (b). (Section 111 royalty rates are those relating to cable television; Section 115 royalty rates are those relating to "phonorecords"-1.e., recordings of copyrighted non-dramatic musical works. Although Professor Gellhorn's Memorandum seems to be confined to the field of cable television, his arguments would appear equally applicable to phonorecords"). 14 warranted, to transmit to Congress "the recommended royalty adjustment." To convert the professional status of the Tribunal members into a challenge to the validity of the Tribunal seems an exercise in semantics rather than in constitutional law.15 (3) Professor Gellhorn also expresses concern at the lack of any provision in H.R. 2223 for judicial review of Tribunal decisions in royalty adjustment proceedings. Given the architecture of Chapter 8 of H.R. 2223, it seems a fair inference that the bill does not contemplate direct judicial review of such decisions. For it is plain that direct review of such decisions is vested in, and is indeed obligatory upon, Congress, inasmuch as a veto by either the House or the Senate prevents the going into force of the Tribunal's "recommended royalty adjustment." "By contrast, when the Tribunal performs its separate and very different function of adjudicating controversies with respect to the distribution of cable television royalties (a function apparently not within the ambit of Professor Gellhorn's chief objections to H.R. 2223)," the federal district court-not Congress is the specified forum for review.18 However, there is not a syllable in H.R. 2223 which precludes judicial review of royalty adjustments recommended to Congress after recommended adjustments have been acquiesced in by Congress (through the failure of either chamber to act in the negative) and have gone into effect. A challenge to a new royalty rate-asserting, for example, that it is confiscatory or that the determination that it is "reasonable" is not supported by substantial evidence-would seem a fit issue for judicial determination. Moreover, the propriety of such judicial review-subsequent to Congressional acquiescence in the new royalty ratewould seem to be supported by relevant precedent: It will be recalled that in a series of statutes Congress has vested in the Supreme Court authority to promulgate, and amend, the various sets of rules governing procedure and evidence in the federal district courts, subject to review by Congress before such rules or amendments take effect." But it will also be recalled that the Supreme Court has consistently held that the validity of the rules which it and Congress have approved is open to subsequent judicial inquiry when challenged in an appropriate case or controversy.20 In short, one may be permitted to hope that H.R. 2223 would be judicially construed as authorizing judicial inquiry, in an appropriate case, into the reasonableness of the royalty rate schedules attendant on H.R. 2223's system of compulsory licensing, whether those schedules be the ones initially written into H.R. 2223 or thereafter adjusted through the action of the Copyright Royalty Tribunal and the acquiescence of Congress. But for immediate purposes it suffices to say that the absence of specific provision in H.R. 2223 for judicial review of compulsory license royalty rates cannot be thought a greater constitutional infirmity than the absence of such a provision in the existing Copyright Law which has, as to musical recordings, linked compulsory licenses and fixed, legislatively declared, royalties ever since 1909. (4) Finally, Professor Gellhorn (in what may appear a volte face from his concerns about undue Congressional delegation to the Tribunal) expresses misgivings about the propriety of the statutory reservation to each legislative chamber of authority to vote down a royalty rate adjustment recommended by the Tribunal. This device, Professor Gellhorn says, "could be objectionable as an unconsitutional effort to legislate without Presidential approval." Gellhorn Memorandum, p. 10. 14 Section 807 (a). 15 Cf. Professor Gellhorn's quotation (in a footnote on p. 8 of his Memorandum) from State v. Traffic Telephone Workers Federation, 2 N.J. 335, 66 A. 2d 616 (1949), a case in which arbitrators plainly were intended to act as a "board of arbitration." As indicated in the text at note 7, supra, the court's holding was that the compulsory arbitration statute was invalid for lack of adequate standards. Moreover, to the extent that dicta expressed misgivings about the impermanence of the "board of arbitration". the dicta must be regarded as qualified by the same court's upholding of a redrafted compulsory arbitration statute a year later, in New Jersey Bell Tel. Co. v. Communications Workers, 5 N.J. 354, 75 A. 2d 721 (1950). See notes 7, 8 and 9, supra. 16 Section 807(a). 17 See note 11. supra. 18 Section 809. The limited scope of review contemplated by Section 809 suggests that in resolving such controversies (as opposed to adjusting royalty rates) the Tribunal is expected to act in an arbitral capacity. See Copyright Law Revision, S. Rep. No. 93-983, 93rd Cong. 2nd Sess., pp. 205-6. 19 28 U.S.C. §§ 2072. 2075 and 2076: 18 U.S.C. § 3771. 20 See, e.g.. Sibbach v. Wilson, 312 U.S. 1 (1940); Mississippi Publishing Corp. v. Murphree, 326 U.S. 438. 444 (1946); Schlagenhauf v. Holder, 379 U.S. 104 (1964). These misgivings are unwarranted. Even if the Tribunal were perceived as an executive agency, Congressional review of its recommended royalty rate adjustment would appear permissible. As Professor Bernard Schwartz puts the matter, "Legislative approval (by failure to pass a resolution of disapproval) is merely one of the contingencies specified in the governing statute upon which the exercise of the delegated power is to take effect." " And so, too, if the Tribunal were perceived as a part of the judicial branch. As noted above, the Supreme Court exercises its rule-making and rule-amending powers subject to Congressional review. Moreover, the Court has been at pains to acknowledge the wisdom and the propriety of these arrangements. In the leading case of Sibbach v. Wilson, Mr. Justice Roberts said, for the Court: The value of the reservation of the power to examine proposed rules, laws and regulations before they become effective is well understood by Congress. It is frequently, as here, employed to make sure that the action under the delegation squares with the Congressional purpose.22 Present adherence to the practice of Congressional review of judicially proposed rules and amendments is reflected in Public Law 93-595, which was approved by President Ford on January 2, 1975. Section 2(a)(1) of that law adds to Title 28 a new provision-Section 2076-which provides in pertinent part as follows: The Supreme Court of the United States shall have the power to prescribe amendments to the Federal Rules of Evidence. Such amendments shall not take effect until they have been reported to Congress by the Chief Justice at or after the beginning of a regular session of Congress, but not later than the first day of May, and until the expiration of one hundred and eighty days after they have been so reported; but if either House of Congress within that time shall by resolution disapprove any amendment so reported it shall not take effect. Actually, of course, the Copyright Royalty Tribunal envisaged by H.R. 2223 is not to be a part of the executive branch nor a part of the judicial branch. Pursuant to Section 801 (a) of H.R. 2223, the Tribunal is to be "created in the Library of Congress..." The Library of Congress is, of course, an instrumentality of Congress. 2 U.S.C. Chapter Five, passim. And thus the Tribunal, in turn, is to be a subordinate instrument of Congress, assisting Congress in the exercise of its legislative functions. So viewed, H.R. 2223's provisions for Congressional review of Tribunal royalty rate adjustment proceedings are exactly congruent with the statutory provisions under which Congress has reserved power to review and annul enactments of subordinate legislative instrumentalities-the legislatures of the territories-since the beginning of the republic. It is notableand indeed wholly dispositive of the immediate question-that a number of such provisions were expressly cited by the Supreme Court, in a footnote in Sibbach v. Wilson, as "an analogy" supportive of the Congressional review of judicial rule-making there sustained.23 CONCLUSION It is submitted that the provisions of H.R. 2223 discussed above constitute a fair, orderly and constitutional mechanism for periodic adjustment of royalty rates attendant on a system of compulsory licensing of copyrighted matter. The provisions, both as applied to the new field of cable television and as applied to the old field of musical recordings, would be a distinct—and distinctly constitutional-improvement upon the rigid compulsory-license-with-fixed-royalty statutory model which has been an important feature of the present Copyright Law ever since 1909. November 11, 1975. LOUIS H. POLLAK, 21 Schwartz, Constitutional Law (1972) p. 140. Cf. Watson, Congress Steps Out: A Look at Congressional Control of the Executive, 63 Calif. L. Rev. 983 (1975). 22 312 U.S. 1. 15 (1941). And see the dissent of Mr. Justice Harlan in Fitzgerald v. United States Lines Co., 374 U.S. 16 (1963), wherein he chastised his brethern for using a case before the Court as a vehicle for mandating a change in the mode of trial of Jones Act and admiralty claims joined in a single proceeding a change the Justice himself though sensible rather than embodying the change in a proposed amendment to the Admiralty Rules and submitting the proposed amendment to Congress. 23 312 U.S. at 15 n. 17. |