A Frolic of Her Own

Good legal writing

Green Bag is engaged in a commendable project of finding the best legal writing in a variety of categories - judicial opinions, law review articles, books, and so on.  What is surprising to me is how many of the nominated works I've read and whose inclusion I agree with.  At any rate, I think all the included Kozinski opinions are worth reading for sheer entertainment value (I sometimes find Kozinski's writing style to be a little precious, but the guy was really on a roll last year), as is Lingle v. Chevron U.S.A., a surprisingly lucid and forcefully argued opinion by Sandra Day O'Connor.

Alito, Day One: Baseball

John Roberts's comparison of the roles of judge and umpire may have been, as Jim Lindgren pointed out, rather unilluminating as a description of Roberts's actual philosophy of judging.  The analogy did, however, apparently capture the imagination of the Judiciary Committee, as it was mentioned by nearly every senator I heard speak on the interminable drive into work this morning.

Too many hours?

A recent, rather alarming Posner opinion - finding, in essence, that 13.7 hours were simply too many for a firm to spend on a 4-page brief - has generated a wealth of commentary.  This prompted me to calculate how many hours per page it's taken me to produce briefs so far in my short law-firm career.  The answer: according to Posner, apparently far too many.  I've always considered myself a relatively fast writer, and the briefs I've written so far have not been terribly complex.  However, writing in a highly structured format in a way that will be acceptable to a relatively large group of people simply takes a lot of time.  If anything, the number of hours I bill doesn't fully reflect the time I spend; my billable hours don't, for example, account for the time I spend thinking about the brief when not in front of a computer, even though that's often considerable.

Some commentators have pointed out the irony of Posner, of all people, determining that a price the market will clearly bear is nonetheless, as Posner puts it, "too high."  I have to wonder if Posner's pride in his own legendarily prolific output trumped ideology here.  I'm sure Posner can't imagine needing 13 hours to write a four-page document himself; he could probably churn it out before breakfast.  On the other hand, it has probably been many years since Posner had to write work that had to meet specific page and format constraints, or that was subject to anyone else's approval.  Further, as another Prawfsblawg entry coincidentally points out, there are times when Posner's own work could use a little editing.

Roe talkers

Apropos of Dahlia Lithwick's amusing-as-always piece about her Roe-talker versus nontalker survey, I must say that I don't personally find the claim of any given lawyer that "No one knows my views on Roe" to be inherently ludicrous or implausible.  It really depends what one means by "views on Roe."  I could probably guess with reasonable accuracy whether most of my lawyer acquaintances would like to see Roe reaffirmed or overruled, but that doesn't mean I've heard any of them expound at length about what they think of Roe in a jurisprudential sense - that is, not just its result, but its reasoning.  Has anyone, really, outside of gunner-heavy con law classes or a particularly earnest faculty lounge?  Further, the whole issue of Roe has become swathed in such elaborate code language that it's possible to signal that one is generally sympatico with Roe-overturners without dwelling too much on the gory details; just go on a lot about strict constructionism, or activist judges, or how Dred Scott was a really bad decision.

The truly absurd dodge for the potential Supreme Court justice is the Clarence Thomas-style "I have no opinion on Roe" - one of those lies so shameless that there's really no way to challenge it.  We seem to have evolved from that to the Roberts/Miers/Alito strain of evasion, which amounts pretty much to, "You bet I have an opinion on Roe, but I'm not saying what it is!"  (Of course, the ill-timed resurfacing of one's early efforts to curry favor with Ed Meese may complicate this strategy.)  I question whether any principle of judicial ethics really mandates this response.  (By way of comparison, it seems to be OK to talk about Griswold, but is it really possible to say definitively that the issues Griswold raised will never again come before the court?)  At the very least, however, it seems a modest advance in honesty.

Another law-firm novelist

Legal fiction news of the day: Opinionista has apparently imminent plans to reveal her identity, quit her job, and write a novel.

More on Tradesports

Apropos of my earlier post, a reader points me to a previous debate on the Volokh Conspiracy about TradeSports's record on the Roberts nomination.  More on this later.

Updated:  The Volokh posts, especially Orin Kerr's, are worth reading. A couple of commenters make good arguments, too.  Finally, there are other interesting posts about prediction markets on Crooked Timber, and on Professor Bainbridge's blog here and here.

I'll add one final comment, which is that I think that the widespread faith in TradeSports is part of a more generalized wish to believe that the Internet knows something that you don't.  But while blogs and other unconventional information sources are pretty good at reporting tasks that require sustained research and analysis (such as debunking the notorious Killian memos), they are pretty terrible at getting the kind of scoops that require institutional prestige and a reliable network of sources.  Take the Fitzgerald investigation; like many other people, I spent far too many hours tracking baseless Internet rumors about the number and timing of possible indictments.  As it turned out, the only reliable inside information came from the New York Times.

And that is the last thing I will say on this subject.
 

Fictional machines and false realities

Suppose an author puts up a detailed website that purports to tell the story of a historical machine, including digitally altered photographs and a great deal of fake background.  The website doesn't clearly present itself as fictional, so that readers are arguably invited to believe that the machine is real.  Another author sees the website, doesn't get the joke, and writes a historical novel in which the machine plays a role.  Is this copyright infringement?

That's the interesting discussion going on at madisonian.net, sparked by a real-life incident involving a made-up robot called Boilerplate.

I am inclined toward the position that ordinary principles of copyright law are sufficient to handle this situation.  But this case does present an intriguing twist on the idea of authorship.  Obviously, all artists are, to some extent, in the business of creating mock realities.  What makes the case of Boilerplate different is the degree to which the author wishes his fictional creation to be taken for real.  It's a sort of shortcut to the willing suspension of disbelief - simply ensure your audience never disbelieves in the first place!

In the comments to the original post, Joe Wilson brings up the example of "mockumentaries," but I'm not sure that's quite the same thing.  You'd have to be pretty humorless and literal-minded not to realize that films like A Mighty Wind are designed to be spoofs.  But although the story of Boilerplate may have some satiric elements, it doesn't strike me as a spoof, exactly.  The site isn't about making fun of historical reality so much as lovingly and painstakingly imitating it.  And I don't get the feeling that Paul Guinan, the site's creator, is entirely displeased that some people think Boilerplate is real; strict verisimilitude is part of the artistic effect he's trying to create.

Despite all this, I think it's sufficiently apparent that the Boilerplate site is fanciful that I have little problem treating it as an ordinary fictional work for copyright purposes.  But it's not difficult to imagine tougher cases.  What about a fictional reality that's passed off as real for purposes that are clearly deceptive rather than artistic?  If I unwittingly read a Stephen Glass article, believe it to be true, and write a novel based on the events described in it, am I liable?  The commenters at Madisonian suggest a few grounds on which I might not be - for example, the idea that an author who passes off a fictional world as real grants the public an implied license to use it.  But to make that sort of distinction, of course, requires potentially tricky judgments about the motives of the author creating the fake world.

The fulfilled ambitions of the conservative nominee

Like John Roberts, who sought "the best job" from the time he was a fresh-scrubbed teenager (and who would argue that he doesn't now have it?), Sam Alito shows disturbing signs of having wanted to be a Supreme Court justice from an alarmingly early age.

Opposing Alito

While the right-wing's ideological criticism of Harriet Miers may have been crude, it was at least straightforward.  The same goes for at least one conservative blog's take on Michael McConnell as "not partisan enough" for his criticism of Bush v. Gore.  Turning Supreme Court nominations into just another battle about political and cultural values probably isn't the greatest development in the world, but at least the right wing has been honest about what's really going on.  Though the liberal groups opposing Alito have my ideological sympathies, I cringe when I see the heavy-handed and misleading talking points that some are already putting out about the Alito nomination.  It's, of course, possible to get a sense of a judge's ideology from his overall pattern of rulings, but it's completely outrageous to attribute any given opinion to a judge as stating his personal beliefs.  Alito has a long record, so there's no need to engage in aggressive overreadings of relatively innocuous judicial opinions or 20-year-old briefs written on behalf of a conservative administration. 

In fact, why make it personal at all?  The Miers debate made it obvious that the right is looking for nothing more than, essentially, a cog in the machine - a justice who will vote to overturn Roe v. Wade (and side with them on a few other hot-button "cultural issues"), and whose prose and reasoning won't be embarrassing.  So why can't the left oppose him on the same grounds - especially since their side happens to be far more popular?   (The fact that Alito would add virtually nothing in the way of diversity, in the ideological sense as well as the Grutter one, also seems fair game.)  I understand that it's necessary to communicate sometimes complex and technical legal issues to the general public, but it shouldn't be necessary to distort the whole process of judging in order to do so.

More Miers money-making

There actually was a Miers betting opportunity for astute observers last night.  As Charles Schumer complained, Miers failed to meet the deadline for returning her revised questionnaire, due yesterday.   It wouldn't have taken much of a leap to figure out that something was amiss.  After all, Miers has something of a history of turning in important things late.  If she was serious about pursuing confirmation,  would she really want to remind the Judiciary Committee of this tendency?  But the press (like the author of this blog) was distracted by FitzVigil, and didn't pick up on the implications of this.  Hence no Tradesports movement on Miers last night - confirming my belief that Tradesports doesn't take notice of news developments until someone else has first.

As a site note, there's something perversely fascinating about Miers's persistently godawful prose style.  Is it really that difficult to write a platitude-filled withdrawal letter that's free of grammatical errors?