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?
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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.
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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!"
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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?
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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?
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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 . . .
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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 . . .