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You seem to be interpreting jwise's comments as somehow premised upon legal realism. (I.e., that the correct legal rules are "out there" and that judges need on

You seem to be interpreting jwise's comments as somehow premised upon legal realism. (I.e., that the correct legal rules are "out there" and that judges need only to "discover" them.) This is slightly different from the claim I think jwise is making: that it has always been the best interpretation of our existing body of law. The difference between this and classical legal realism is subtle, deep, and interesting (and, I hasten to add, contested!). And it is the subject of a vast and growing literature in the field of jurisprudence -- we call this (or a version of it) the "Hart / Dworkin" debate. As a starting point, have a look at Ronald Dworkin's article "Hard Cases." The gist of Dworkin's position (with which I mostly agree) is this: in many cases where the existing written body of law does not literally cover the facts of a given case, a judge often (indeed, almost always) is nonetheless not free to simply decide the case however she wants. There is typically a best interpretation of that existing body of law (you might think of it as the law's "spirit," I guess) that, itself, has something like the force of law in that it binds judges. Thus, anyone with sufficient training can look at a case, and look at the laws on the books, and tell what the rule is (even if sometimes the required training considerable -- well beyond the ken of any normal lawyer). And while you are correct that most lawyers today are not "legal realists" I think it is also clear that most are "Dworkinians" in that, when a hard case like Aereo comes up, they don't think that there simply is no rule yet, and that judges are free to do whatever they want. They see it as their task to educate the court about what the best interpretation of existing written law is and, thus, what the actual law is.

thaumasiotes 12y ago
Yes, I interpreted that as a reference to legal realism. In large part, that's because the view that you label Dworkinian here doesn't make any sense given the facts; all the commentary (from somewhat varied sources) that I read on the case basically came to the conclusion "god only knows what SCOTUS will do". As I understood things, what happened was that 1. Cable companies offered a particular kind of service, and were subjected to a regulation which specifically calls out that it governs anyone using a particular technology. 2. Aereo (having read the law) decided to offer the same service using a different technology, so as to sidestep the technology-based regulation. 3. Aereo was sued on the theory that while the law says it governs those using a particular technology, it means that it governs anyone offering a particular service. The law as written is much closer to Aereo's view of things, but they weren't seen as a slam dunk regardless, largely on the court-watching theory that judges don't like weaselly loopholes. But all of this is to say that this particular case was not seen (in the circles I read) as having any obvious outcome in any direction. It could be a textbook case illustrating the absurdity of "discovered" law.
- pdabbadabba 12y ago
  Fair enough. Given the unpopulatiry of legal realism these days (especially among nonlawyers!) I think it's probably safe to assume that you just disagree about the clarity of the case. But maybe not -- I suppose jwise can speak for him/herself. I take slight issue with your characterization of Aereo's legal position, though (mostly having to do with your #2). The issue (as I understand it) was whether Aereo was infringing on the copyrights of the owners of broadcast TV content. Aereo was arguing neither that they were or were not like a cable company, because it could not possibly have helped them. If they were a cable company, they were SOL because they hadn't been paying the compulsory licensing fee by which cable companies get the license to broadcast content. If they weren't, this still would leave them in search of an explanation of why they weren't infringing on broadcasters' copyright. Their strategy, therefore, was to argue that they were simply, in essence, renting a broadcast antenna to allow home viewers to time/place shift broadcast TV. The analogy to cable operators came into it because the Supreme Court concluded, on the basis of the treatment of cable companies under the Telecommunications Act, that congress intended for any such service -- regardless of what technological contrivance they might use -- to require a license. Under this approach to the case, I think the outcome is a bit clearer against Aereo. This is not to say that I think the issue is at all an easy one.

thaumasiotes 12y ago

Yes, I interpreted that as a reference to legal realism. In large part, that's because the view that you label Dworkinian here doesn't make any sense given the facts; all the commentary (from somewhat varied sources) that I read on the case basically came to the conclusion "god only knows what SCOTUS will do". As I understood things, what happened was that 1. Cable companies offered a particular kind of service, and were subjected to a regulation which specifically calls out that it governs anyone using a particular technology. 2. Aereo (having read the law) decided to offer the same service using a different technology, so as to sidestep the technology-based regulation. 3. Aereo was sued on the theory that while the law says it governs those using a particular technology, it means that it governs anyone offering a particular service. The law as written is much closer to Aereo's view of things, but they weren't seen as a slam dunk regardless, largely on the court-watching theory that judges don't like weaselly loopholes. But all of this is to say that this particular case was not seen (in the circles I read) as having any obvious outcome in any direction. It could be a textbook case illustrating the absurdity of "discovered" law.

pdabbadabba 12y ago
Fair enough. Given the unpopulatiry of legal realism these days (especially among nonlawyers!) I think it's probably safe to assume that you just disagree about the clarity of the case. But maybe not -- I suppose jwise can speak for him/herself. I take slight issue with your characterization of Aereo's legal position, though (mostly having to do with your #2). The issue (as I understand it) was whether Aereo was infringing on the copyrights of the owners of broadcast TV content. Aereo was arguing neither that they were or were not like a cable company, because it could not possibly have helped them. If they were a cable company, they were SOL because they hadn't been paying the compulsory licensing fee by which cable companies get the license to broadcast content. If they weren't, this still would leave them in search of an explanation of why they weren't infringing on broadcasters' copyright. Their strategy, therefore, was to argue that they were simply, in essence, renting a broadcast antenna to allow home viewers to time/place shift broadcast TV. The analogy to cable operators came into it because the Supreme Court concluded, on the basis of the treatment of cable companies under the Telecommunications Act, that congress intended for any such service -- regardless of what technological contrivance they might use -- to require a license. Under this approach to the case, I think the outcome is a bit clearer against Aereo. This is not to say that I think the issue is at all an easy one.