

Lessig: How I Lost the Big One [2004] - _delirium
http://www.legalaffairs.org/issues/March-April-2004/story_lessig_marapr04.msp

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heyrhett
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
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).

