As a lawyer, I am annoyed by growing older.
At my stage in life, old age looms in bold relief, like a posthumous sculpture of some long forgotten lawyer. Thankfully, I’m not so close yet that my face is cheek by jowl with his stone one. But I’m close enough to catch a glimpse of the timeless stare in his eyes. Closer than I want to be just now.
When did this troublesome mess hit me?
The other morning. I was standing on the Green Line trolley when the 20-year-old woman sitting in front of me looked up, stared deeply into my eyes, smiled broadly, and asked “Would you like to sit here?”
And she wasn’t pointing to her lap.
She was offering to stand up and cede her seat to someone she thought needed it. At first I didn’t realize that. But when I turned to look behind me to identify the target of her offer, I found no one there. I puzzled over this episode for days, but never figured out how she spotted one of my kind so easily.
If your right index finger is twitching above the “next page” key about now, you must be in an earlier phase of life, the one when you can bury yourself in some important legal issue without a care in the world. Maybe it’s the third footnote of the fourteenth page of the draft appeal brief that is due at 11:59. Does that comma belong there?
For the moment, you can immerse yourself in your work, oblivious to the pesky growing-old proposition. And why not? You are (metaphorically) at the right age to hustle along the uphill leg of the trail with a 30-pound pack on your back, a GPS in your left hand, and three kids hurrying to keep up.
You miss the future that I am now starting to see coming up over the rise. The impending period of stumbling over the rocks and roots on the downhill segment with a walking stick in the left hand, a pacemaker in the belly, and one eye out for a good place to stop for a rest. It will be the time when getting my eyes to actually see the comma in that third footnote will be the challenge; forget about questioning its presence.
Happily, I’m not there yet. For now, I’m in between. Not yet stale like an old bruised banana or an “expired” box of “Pop Tarts”. I’m still grasping the complex issues easily. And putting my ideas into the written word with skill. Interrupted only when my outdated bladder prods me to trundle down to the men’s room more times every day than I care to count.
At this juncture, I can continue to relish the riches that a big law firm’s colleagues, clients, and challenges offer. And it’s a good thing, because I can’t take them with me.
Hmmm. Maybe I just won’t go.
The Supreme Court opinion in the Alice case?
I don’t like it.
It’s not that I don’t like the outcome. Okay, it is true that I don’t like the outcome. But what pains me more is the way it tortures two icons of court-made law that my Constitutional law professor (Paul Freund) seemed to conjure for us many times as he stood before us in Langdell Hall four decades ago. In my student mind, those two icons were: absolute clarity; and reversibility.
Clarity meant that for a decision to be worth much, it needed to lay out an important legal principle and do that clearly. Very clearly. Never mind that the opinion also took a leisurely stroll in the woods for 82 pages and 67 footnotes. As long as it found its way to that big unambiguous legal concept at the end of the trail. And finished the trek without miring itself in a mish-mash of undecipherable muck.
Clarity mattered, because it assured that what would be legally controlling going forward was an understandable, easy to apply rule. Not the varied mercurial politics and prejudices of the lower courts who would apply it.
The rule of law, man. Not the rule of men. That was the idea, by some accounts fundamental to the health of the republic.
Reversibility, the second icon, was the Court’s power to correct things after having lost its way in the forest. Occasionally that could happen if the Court had issued a line of misguided opinions that followed some dumb theory. To fix that, the Court had the right to abandon the mistaken route. Reverse course. Trudge the long way back to the fork in the trail where the wrong turn had been made. And then head briskly off in the better direction.
This was an important power, because there was no higher authority ensconced in another grand Greek-revival temple across the Potomac to set the Court back on the right path. The Court had to do that course reversal for itself. And in grand style sometimes did. To make things better. At least in the old days.
When it comes to these two talismanic tests for useful Court opinions, Alice fails. Both.
I know this because last Thursday on the 7:02 train into Boston, I wasted a few drowsy minutes trying to skim the opinion. It was tough sledding. Hard to follow. Didn’t hang together.
Then I noticed that I was holding the pages upside down.
So I turned the sheets right-side up and skimmed them again. No better.
For a moment, I wondered if rotating the pages sidewise would do the trick. Okay. I didn’t wonder that. Because I knew the words strung across the pages in whatever direction would still be impenetrable, defying me to make sense of them. I declined the challenge.
What I did manage to glean from my failed attempts were three puzzling concepts that hung in the fog as we rounded the turn into Somerville: “abstract idea”; “preemption”; “substantially more”. Almost meaningless individually, these three were strung together in an odd-ball elusive chain that was even less decipherable: You can’t get a patent for an abstract idea if your claim preempts its use, unless what you claim is substantially more than the abstract idea. (If the writer had understood patent claims, he would have written “substantially less”, of course, but now we are stuck with the wrong phrase it seems.)
Has Alice made the rule of law clear? No. The Court invites each of the courts below to follow its own whim, or its own dogmatic leanings, or worse.
Has Alice demonstrated the Court’s wisdom in sometimes reversing course? Hardly. Instead they chose to continue hacking through the underbrush of 150 years of vague doctrine looking for the light.
As we slid into North Station, I woke up from my snooze. But not from the nightmare.