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tldr; Just Lessigs long account of the story. Lessig made practical law mistakes because he acted like an academic. He corrected Supreme court justices rather

tldr; Just Lessigs long account of the story. Lessig made practical law mistakes because he acted like an academic. He corrected Supreme court justices rather than answering their questions. He thinks a more practical lawyer could have won the case, maybe but he never says how, and there is no clear single mistake.

_delirium 17y ago
I agree there's no clear single mistake, but his main conclusion is that he erred by not trying to convince the justices that as a policy matter, extending copyright in this way was a bad idea. Instead, he thought he had a legal argument for why it was unconstitutional that the justices, given their previous views, would have to accept. What he didn't count on was that they didn't want to accept it, and so dodged the issue. So he concludes he should've spent more effort convincing them that not only did they have to accept his argument legally, but that they should also want the outcome it produced. He correctly guessed that Ginsburg would vote to uphold, and Stevens would vote to overturn, and those were both consistent with their previous opinions. He incorrectly thought Breyer would vote with Ginsburg, against him, and didn't know what Souter would do. But he thought he had an argument that the 5 conservative justices would have to accept, given their previous opinions. What he didn't count on was that, since they as a political issue didn't want to strike down the law, they would just sign on to Ginsburg's opinion without comment. That is, the conservative justices didn't explain anywhere why this decision was consistent with their previously expressed views on tests for limiting enumerated powers. They just ignored that argument entirely, and silently voted for Ginsburg's opinion, which analyzed things from Ginsburg's perspective, with a heavy focus on legislative precedent and no discussion of originalist arguments. The 5 conservatives didn't write separately to explain how they could possibly agree with Ginsburg's reasoning, given their previous views (especially the originalist ones, who were usually skeptical of legislative precedent).

_delirium 17y ago

I agree there's no clear single mistake, but his main conclusion is that he erred by not trying to convince the justices that as a policy matter, extending copyright in this way was a bad idea. Instead, he thought he had a legal argument for why it was unconstitutional that the justices, given their previous views, would have to accept. What he didn't count on was that they didn't want to accept it, and so dodged the issue. So he concludes he should've spent more effort convincing them that not only did they have to accept his argument legally, but that they should also want the outcome it produced. He correctly guessed that Ginsburg would vote to uphold, and Stevens would vote to overturn, and those were both consistent with their previous opinions. He incorrectly thought Breyer would vote with Ginsburg, against him, and didn't know what Souter would do. But he thought he had an argument that the 5 conservative justices would have to accept, given their previous opinions. What he didn't count on was that, since they as a political issue didn't want to strike down the law, they would just sign on to Ginsburg's opinion without comment. That is, the conservative justices didn't explain anywhere why this decision was consistent with their previously expressed views on tests for limiting enumerated powers. They just ignored that argument entirely, and silently voted for Ginsburg's opinion, which analyzed things from Ginsburg's perspective, with a heavy focus on legislative precedent and no discussion of originalist arguments. The 5 conservatives didn't write separately to explain how they could possibly agree with Ginsburg's reasoning, given their previous views (especially the originalist ones, who were usually skeptical of legislative precedent).