Recounting the Death of the Public Domain
Professor Lessig (When was the last time a legal scholar became such a cult hero to young people?) argued the Eldred v. Ashcroft case (re the Sonny Bono Copyright Extension Act) before the Supreme Court. Though few think he could have won, he disagrees and blames himself in an essay in the new Legal Affairs magazine. To a non-lawyer at least, this reads like there are valuable lessons to be learned here. It's a fascinating, self-critical account of an important argument, one year after the fact.

"My anger with the conservatives quickly yielded to anger with myself. For I had let a view of the law that I liked interfere with my view of the law as it is.

Most lawyers and law professors have little patience for idealism about courts in general and this Supreme Court in particular. Most have a much more pragmatic view. As I read back over the transcript from that argument in October, I can see a hundred places where the answers could have taken the conversation in different directions, where the truth about the harm that this unchecked power will cause could have been made clear to this court. Kennedy in good faith wanted to be shown. I, idiotically, corrected his question. Souter in good faith wanted to be shown the First Amendment harms. I, like a math teacher, reframed the question to make the logical point. I had shown them how they could strike down this law of Congress if they wanted to. There were a hundred places where I could have helped them want to, yet my stubbornness, my refusal to give in, stopped me. I have stood before hundreds of audiences trying to persuade; I have used passion in that effort to persuade; but I refused to stand before this audience and try to persuade with the passion I had used elsewhere. It was not the basis on which a court should decide the issue."

I'm really anxious to read the new book.