[DMCA-Activists] Law School in Nutshell via Eldred vs. Ashcroft

[Seth Johnson]

(Got this citation from Cory Doctorow's Boing Boing Blog. 
-- Seth)


> http://research.yale.edu/lawmeme/modules.php?name=News&file=article&sid=364

Law School in a Nutshell, Part 1

Posted by James Grimmelmann on Monday, September 30 @
21:54:07 EDT 


Future lawyers spend three years in law school learning how
to read and write legalese, but what serious geek has that
kind of time to spare? This series will cover the basics of
Legal; by the end of it, you should be ready to pick up a
legal brief and know what's going on and how to find out
more. 

To keep things close to reality, we'll use as a case study a
particularly important piece of recent legal writing: the
good guys' brief in Eldred v. Ashcroft. We'll walk through
the brief, seeing how the conventions of legal writing
interact with the arguments Lessig and company are making. 

In this first installment, we'll look at the front matter of
the brief: all the boilerplate and technicalities needed to
set the scene for the argument itself. We'll go over some
Supreme Court procedure, learn a bit about the federal court
system, and find out what those strange strings of numbers
in the middle of otherwise normal sentences mean. (continues
inside . . .)

First, a Word From Our Sponsors

To understand why legalese is so incomprehensible, think
about it as the programming language Legal. It may have been
clean and simple once, but that was before it suffered from
a thousand years of feature creep and cut-and-paste coding.
Sure, Legal is filled with bizzare keywords, strange syntax,
and hideous redundancy, but what large piece of software
isn't? Underneath the layers of cruft, serious work is
taking place. 

As always, one of the secrets of being a good coder is to be
able to read someone else's code and recognize which parts
were copied out of the Camel Book and which parts have been
carefully tweaked for this particular project. It's okay to
skim legal documents the same way you'd skim a long source
file; you just have to know when to switch over to careful
reading. One of the major goals of this walkthrough is to
give you a better sense of when to skim and when to focus. 

Remember those Read-Along Story Books that came with a
record? As you read the book, the record told you what was
going on on the page you were looking at. That's exactly
what we'll do here. When you hear the sound of a gavel
banging, it's time to turn the page. Ready? 

(bang!) 

Cover Page: #!usr/bin/legal

Not unlike a fax cover sheet, the first page of a legal
document typically contains only metadata, and the Eldred
brief is no exception. There's a lot packed in here, so
let's take it line by line. 

No. 01-618: Those numbers at the top of the page are a
docket number. Think of a docket number as the unique ID
assigned by a court to each case it hears. Every document
filed in a given case has the same docket number at the top.
Since the enormous administrative apparatus of our legal
system evolved long before modern database software, keeping
track of thousands of cases required some clever filing
techniques. Docket numbers are part of the solution. 

If you want to know the status of a case, you can take a
Supreme Court docket number to the Supreme Court's docket
search page; punching in 01-618 will tell you that the case
is scheduled for argument on October 9 and give you a
complete history of all of the "events" in the Eldred case
since it was filed with the Supreme Court. 

Digression: Supreme Court docket numbers are of the form
YY-Num, where YY is the last two digits of the year, and Num
is a serial number, unique within each year. This means that
Supreme Court docket numbers aren't Y2K-compliant; for now,
they're solving the problem by letting 00 > 99. . .) 

Supreme Court of the United States: This is it. The big
cheese, the top of the charts, Mt. Everest, the 500-pound
gorilla. 

Eric Eldred et al., petitioners: "Et al" is the first of
many reserved keywords we'll meet in the course of our
journey through the brief. It's Latin for "and others," and
means that there are other people who are suing as part of
this case besides just Eric Eldred. A few pages ahead, we'll
meet some of them. "Petitioners" is another keyword; it
means "the people who are asking the court for something."
In this case, they're asking the Supreme Court to overrule
the lower court's decision and rule that retroactive
copyright extensions are unconstitutional. 

Digression: on cases "appealed" to the Supreme Court, the
petitioner is the person who'll appear first in the name of
the case. But, depending on who won in the lower court, the
petitioner might not be the same person who originally sued.
If Eldred had won in the Court of Appeals and the government
had appealed, this case would be Ashcroft v. Eldred instead. 

John D. Ashcroft, in his official capacity as Attorney
General, respondent: this part is pretty self-explanatory.
Since Eldred and co. want a law overturned as
unconstitutional, they're suing the guy who'd (ultimately)
enforce that law, the Attorney General. But this isn't a
suit against John Ashcroft personally, only against the guy
who happens to be Attorney General. Back when this case got
rolling, it was Eldred v. Reno, because Janet Reno was the
Attorney General at the time. "Respondent" is the opposite
of "petitioner;" it means "the guy who wants the court not
to do what the petitioner wants." 

On a Writ of Certiorari to the United States Court of
Appeals for the District of Columbia Circuit: this clause is
the procedural history of the case. After the Court of
Appeals for D.C. (one of the next layer of courts down in
the federal judiciary system) ruled against Eldred, the
Supreme Court agreed to his request to hear the case. The
"writ of certiorari" is a fancy term for the order the
Supreme Court sent to the Court of Appeals, saying, "we'd
like to hear this case; please forward everything you have
on it." ("Writ" is an old term for a written order;
"certiorari" is Latin for "to know more"). 

Digression: in many legal documents for lower courts, you'll
see the phrase "on Appeal from" instead of "on a Writ of
Certiorari." Yes, there is a difference. "Appeals" are
usually automatic; you appeal to a court that's guaranteed
to hear your case. But the Supreme Court is never required
to hear a case on appeal; it takes only the cases that it
thinks are important. The idea that the Court "grants cert"
rather than "hears an appeal" captures this distinction. 

Brief for Petitioners: this one line tells you what this
particular document you're holding in your hands is. No
jokes about the usual meaning of "brief," please. 

Geoffrey S. Stewart . . .: the list of lawyers who wrote up
the brief. Supreme Court briefs are often quite bloated with
long lists of lawyers, because the cases are so important. 

Whew! That was some heavy going, but Legal, like Perl, can
be shockingly dense. Ready to move on? Good. 

(bang!) 

Page i: Why are we here? What's life all about?

If you had to reduce the Eldred case to two sentences that
ended with question marks, these sentences would be the two.
The rest of the brief is going to argue that the answers to
these two questions should be "yes" and "no," respectively.
This section is the superbrief summary of the case: does
Congress have the power to extend copyright effectively
forever, and doesn't the First Amendment have something to
say on the topic? 

Legal writing can be highly redundant, and one place this
redundancy shows up is in the structure of legal documents.
They tell you up front what they're going to tell you, tell
you, and then tell you what they've just told you -- plus
they tell you how each section fits into that overall story,
and they like also to flag especially important passages.
"Hey! Remember how we said we were going to tell you
something? Yeah, well HERE IT IS! In the VERY NEXT
SENTENCE!" 

(bang!) 

Page ii: Full Disclosure

Just a quick statement to let the Court know that no one
appearing before it is a corporate stooge. The Court doesn't
necessarily dislike corporate stooges; they just want to
keep their stooges and stoogemasters straight. 

This page is required by the Court under rule 29 of its
rules of procedure. Not that this requirement matters very
much, but this seems as good a point as any to add a link to
the rules. You never know. The day may come when Larry
Lessig calls you up in the middle of the night and asks you
to assist on the brief; when that day comes, don't you want
to be ready? 

(bang!) 

Pages iii-v: tableofcontents

Not even lawyers can mess up a table of contents. Or can
they? Look closely at the names of the sections under the
"Argument." Yep, that's right: it's a full-fledged outline
of the brief. Could this get any easier? The next time
you're at a party and someone asks you whether the D.C
Circuit erred in holding that Congress has the power under
the Copyright Clause to extend retroactively the term of
existing copyrights, you can just pull out your copy of the
Eldred brief, flip to the table of contents, and say, "Well,
actually, the Copyright Term Extension Act's blanket
retroactive extension of existing copyright terms exceeds
Congress's power under the Copyright Clause." If they
challenge you on the details, you can run your thumb down a
few lines and tell them that "retroactively extended
copyright terms are not 'limited'" and that "retroactively
extended copyright terms do not 'promote the progress of
science.'" 

If you stil haven't scared them off and they want to know
more, though, you'll probably have to read the actual text
of the brief. Onward! 

Digression: note that the "conclusion" falls on page 50 (the
PDF is 65 pages, but the numbering only starts after the
front matter). Can you guess what the page limit for opening
briefs is? If you guessed 50, you're right. Are you
surprised? Why or why not? 

(bang!) 

Pages vi-xiv: A HREF EQUALS . . .

Okay. This part probably looks pretty dry. And, truth be
told, there's only so much that you can do to make a
bibliography interesting. Still, it's worth looking closely
at at the syntax here, because once you know the secret,
awesome cosmic power is yours for the taking. 

To start off, this whole section is an index of citations.
Every legal case, every article, and every book that the
Eldred brief mentions or quotes from is listed here. For
example, Alaska Airlines, Inc. v Brock is quoted on page 48;
Bonito Boats, Inc. v. Thunder Craft Boats, Inc. comes up on
pages 12, 16, and 21. "Passim" is Latin again, for "here and
there," which in this context means "just pick a page at
random and you'll probably find it." 

So what about those strings of numbers and letters after
each case? These are the geeky part of the citation; they
tell you exactly where to go to find out more. Let's pick
apart the first one, from the Alaska Airlines case. 

480 U.S. 678 (1987). 1987 is easy: that's a year, in
particular, the year the case was decided. This leaves us
with two numbers separated by an abbreviation. Two numbers
separated by an abbreviation is the fundamental unit of
legal citations. The abbreviation is a name -- it tells you
what publication to look in. (When that publication is a
collection of judicial opinions, the publication is called a
"reporter.") The first number is a volume number -- it tells
you which book of that publication to take down from the
shelf. And the second number is a page number -- and it
should be obvious what you do with a page number. 

Let's try this format out on the case at hand. "U.S." means
the "United States Reporter," which is the official
government reporter for the Supreme Court. 480 means volume
480, and 678 means page 678. So all you need to do is go to
your local law library, find the United States reporter,
find volume 480, and turn to page 678. Got it? 

Okay, so not everyone has access to a law library just like
that. Fortunately, modern computer technology offers some
alternatives. Services like Lexis/Nexis and Westlaw offer
obscenely fancy search features and obscenely large
databases of cases, but their fee structure is also obscene,
putting them outside the reach of almost everyone besides
rich big-city lawyers at large law firms. All is not lost,
however, since places like FindLaw and Cornell's Legal
Information Institute also make some cases available, only
for free. 

FindLaw, for example, has a great collection of Supreme
Court cases and a nice interface, so let's give them a try.
Their Supreme Court Opinion search page has a "Citation
Search" form in the middle of the page. Just type "480" into
the first box and "678" into the second (pausing to note the
"U.S." helpfully tucked in between), and then click on the
button. Woo-hoo! There's the opinion from Alaska Airlines in
full, excruciating detail. Since most of the cases cited in
the Eldred brief are to Supreme Court cases (we know this
because of the "U.S." in their citation strings), you can
actually chase down most of the references without leaving
your keyboard. 

The same general idea applies to the other sorts of
materials cited in the brief. To a practicing lawyer or law
librarian, a citation string is as good as a URL. The full
scheme for encoding (and, implicitly, decoding) such strings
is described in the "Bluebook," a kind of style guide for
lawyers that makes a perversely fun read for coders (the
rules about abbreviations, for example, have a certain
horrific beauty). 

Digression: remember when I mentioned that the whole
structure of legal information-tracking predates fancy
computer technology? The citation system is a great example:
it's adapted for easy reference to enormous,
serially-published, reporters. If you'd been a lawyer fifty
years ago, the walls of your office would have been lined
with heavy bound volumes of reporters. For each court you
kept track of, you'd get a new volume of opinions every few
months, which you'd shove on the shelf. Because the citation
format is stable, your database of cases would grow without
needing you to have the older volumes revised. Clever, huh?
The techniques used for keeping up-to-date indices of these
reporters are even neater . . . 

(bang!) 

Page 1: Eldred One, You are Go for Takeoff

Okay. Almost there. We're into the brief proper at this
point. Our heroes (and heroine) just need to take care of a
few procedural preliminaries before they can start making
their case for real. 

Opinions Below: the Supreme Court wants to know what
happened in this case in lower courts, since it starts off
with the presumption that those lower courts got it right.
First, we have the opinion of the Court of Appeals, the
opinion that Eldred is asking the Supreme Court to overturn. 

Second is the order "denying the petition for rehearing and
for rehearing en banc." Huh? After losing in the Court of
Appeals, you're allowed to ask the Court of Appeals to try
again. In this case, the Court of Appeals wasn't interested
(it rarely is) and turned down the request. For once, a
foreign legal phrase isn't Latin: "en banc" is French for
"as a whole". When they asked for a rehearing, the
Eldredians also asked that the entire Court of Appeals,
instead of just the three-judge panel who heard the case,
look at it. They got negged on that one too. 

Finally, the "district court" was the federal court that
first heard the Eldred case. The district courts are the
third ring of the three-ring circus that is the federal
judiciary (there's also a sideshow, with such
freak-of-nature courts as bankruptcy court, tax court,
veterans' court, and a few others, but you don't wind up in
those courts except in very special circumstances). The
district courts -- there are between one and four per state
-- are the lowest level; the Supreme Court is the highest.
The "circuit courts" -- most of the 13 circuits cover
several states -- are in between (the circuit courts are
also known as the Courts of Appeals, which is how we've been
referring to them). 

The opinion is referred to as a "memorandum" opinion -- and
we're really getting into technicalities here -- because the
judge thought the case was open-and-shut, and so needed only
quick treatment. Of course, the unconstitutionality that
Eldred is concerned with is, to be honest, slightly subtle,
so it's not wholly surprising that the district judge on the
bottom of the totem pole wasn't going to stick his neck out
in getting to the constitutional queston on which the whole
case hinges. 

Jurisdiction: another reserved keyword, meaining "the power
of a court to decide a case." Plenty of otherwise plausible
cases get thrown out every day because the court concerned
concludes that it doesn't have jurisdiction; a classic
example is that if one New Jersey resident sues another New
Jersey resident for stepping on her foot in New Jersey, but
decides that the place to sue is California, the court in
California is not going to be very interested in hearing the
case. 

The first four sentences of this paragraph are a
lightning-quick history of the case since the Court of
Appeals ruling, meant to show that Lessig and his posse
didn't waste lots of time before coming to the Supreme Court
(in legal circles, three months is nothing). The final
sentence is the key one; it cites part of the United States
Code (the up-to-date set of laws of the United States) that
gives the Supreme Court power over the case. One sentence is
all it takes: although people somtimes engage in huge legal
fights over jurisdiction, this isn't one of those times. 

Constitutional and Statutory Provisions Involved: sooner or
later, you have to face up to the fact that the Supreme
Court is lazy. They don't want to go to the library if they
can help it, so they ask for the most important citations to
the Constitution and major laws up front. To be fair,
they're lazy in the way that people who are hideously
overworked are lazy: you'd better have your order ready when
you get to the front of the line, or no soup for you. They
have to deal with thousands of cases and petitions every
year, so they insist on having the relevant pieces of text
right in front of them as they try to take in each case. 

This section is also the last step of the Eldred installer,
the step that shows you the release notes for the brief
you're about to run. The entire case in Eldred is that a)
the Copyright Clause doesn't let Congress extend copyright
retroactively, and b) the First Amendment doesn't let
Congress extend copyright retroactively. And now you have,
right in front of you, the Copyright Clause, the relevant
piece of the First Amendment, and a citation to the Sonny
Bono act. The dots are drawn; that remains is to connect
them. 

To be continuted . . .