Justice Breyer’s Warning

Our hosts start today’s episode by diving into the Supreme Court’s 6-2 opinion in Google v. ...

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Our hosts start today’s episode by diving into the Supreme Court’s 6-2 opinion in Google v. Oracle, a multibillion dollar copyright case involving whether Google unlawfully used Oracle’s programming code when the tech titan created its Android operating system. Also on today’s podcast, Sarah and David chat about Justice Stephen Breyer’s Scalia Lecture, misdemeanor prosecutions, a new study on religious liberty’s winning streak on the Roberts Court, and a Native American adoption law case.

Show Notes:

–Google v. Oracle

-Justice Breyer’s Scalia lecture.

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  1. Avatar photo
    Bill Dyer (aka Beldar)

    (1) Kudos to Mr. French & Ms. Isgur for recognizing that they'd disappointed a nontrivial plurality (perhaps a discrete and insular minority!) of their readers whose expectations of AO included coverage of cases like this Google v. Oracle copyright dispute. Sometimes what we law nerds find interesting and important isn't what the rest of the audience finds interesting and important. But it's one of the strengths of this podcast that it continuously and conscientiously tries to keep a broad scope. And Mr. French & Ms. Isgur are actually eager to receive, and thoughtful in considering, FEEDBACK — from commenters here, from emails, and even from the Dark Side (by which you know I mean Twitter; Twitter delenda est).

    (2) Mr. French is correct (10:05 & following) that lawyers (including those who become judges) who've long represented a wide variety of businesses, industries, and enterprises often develop knowledge, and occasionally some expertise, in the correspondingly broad range of subjects that are of crucial interests to our clients. This includes not only lawyers who handle litigation and disputes, but also lawyers who give business & transactional advice (the best of whom themselves become very creative business advisers as well as legal advisers).

    The fact that it's acquired over long periods of time, though, often means that the knowledge the lawyer retains will become dated unless constantly refreshed. The more diverse the lawyer's clients and representations over time, the less likely the lawyer's knowledge will be refreshed. So the jacks of all trade among us are often examples of folks who know a little bit (and even that may be stale) about a whole lot, rather than the converse. A trial lawyer in particular works to develop a capacious bathtub brain — one that can be filled rapidly with information and expertise needed for a particular representation, then drained to make ready for the next one.

    What the lawyer knows is often less important than the lawyer's assimilation and re-communication skills. A good trial lawyer must learn enough to work closely and effectively with smart people in all of these diverse fields not only to communicate effectively with them, but to then to translate what THEY know into digestible form for a trial judge and twelve citizens (plus a couple of alternates), good and true and duly sworn. Working with experts, in general, is one of the most satisfying things about my job; and learning enough with the help of my side's own experts to be able to effectively cross-examine the other side's experts is one of the most difficult and potentially satisfying challenges confronted by any professional.

    All of which reminds me, yet again, of the first aphorism of Hippocrates: "Life is short, but the art is long." And there's a reason we call it "practicing law," because it's an endless journey rather than a destination. I'd write more about this, but there are kids on my lawn who need to be chased off.

    (3) Applying the appropriate 12-point balancing test, I respect Justice Breyer roughly in inverse proportion to the frequency with which I agree with him — meaning I respect him a LOT. This speech was a great lecture, a genuine service to bench, bar & nation. (He was in the 7/2 majority which agreed that the SCoFLA was abridging Bush's constitutional rights in the recount, by the way, along with Justice Souter; but neither of them joined in the remedy portion, which was 5/4.)

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  2. David B.

    So Sarah, since you are amazed that some folks think there is any argument about a higher availability of legal guns having an impact on crime, which side are you so sure that it leans toward? More guns = more crime? I have studied this a moderate amount and am not convinced on either side and have seen data going both ways and would call it anything but clear. And then you were stymied by the study David quoted saying there was no impact. But it left me still not knowing which side was so glaringly obvious to you.

    I am always disturbed by the "the science is settled" of which I would say this is another version. It's typically used to try and quell your adversary and almost NEVER used in a situation where the science is actually settled (in which case it doesn't need to be said because everyone already knows it).

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  3. Avatar photo
    Adam Bridge

    The commentary on the Google v Oracle case calls into question Sarah's competence in other issues. Clearly she knows little or nothing about this. It feels like she is just taking it on Justice Thomas' word that this is how it works. Her characterization of what Google did was poorly done and, frankly, wrong. I cannot imagine how I'm going to trust her, or David, on other issues.

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    Narwhal

    Thank you for discussing Justice Bryer’s Scalia Lecture on the podcast. Your remarks about it made me want to listen to it and I did. I may even listen to other, past and future, Scalia Lectures at some point. If not for your podcast I wouldn’t even know those existed.

    On a related topic, I’d like to know your opinion on the need for and value of a new Democracy in America series by Annenberg. The original is around forty years old at this point. I’m of the opinion that a new version might be more engaging to younger audiences for a number of reasons. I found the series of great value and it gave me an introduction to many great thinkers in America at that time, like Scalia.

    Twitter threads and discussions are a poor substitute for a series like Democracy in America IMO. And a new series could become a much needed shared experience for many young Americans if enough schools across the country use it as a part of their civics education.

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  5. Avatar photo
    Michael Berkowitz

    Forgive me if someone has already commented on this, but vita brevis: I didn't hear any mention of the fact that Java was open-source for a time (and I think much of it still is), as part of the deal Sun made when Oracle bought it out. Did that factor into Google's argument?

    And to keep deranged nerds from shooting your porch lights out, I recommend you not confuse "Java" with "Javascript", which is a whole different language.

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    Ben Connelly

    Thanks for addressing Google v Oracle. I’m still wondering whether it has any implications for the rest of copyright law (ie books etc.).

    Sarah, is your father in bankruptcy law? What was the reference to your father and bankruptcy law?

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  7. Lynn

    Who’s idea was it to change the music? The old was such a great intro! It charged me up to hear the pod. Can you take a vote. Seems most do not like the new, so why keep it?

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    1. Laura P

      Well, actually, I think the new is great, but I defer to the majority if I need to.

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  8. Avatar photo
    JonathanRRogers

    I don't know whether the justices understood the issues in Google v. Oracle. Judge Alsup, who presided over two iterations of the case in district court certainly did understand the issues. He was a self-taught programmer who learned some Java while presiding over the case. He decided that APIs are not copyrightable. Unfortunately, that decision was reversed on appeal. https://www.theverge.com/2017/10/19/16503076/oracle-vs-google-judge-william-alsup-interview-waymo-uber

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  9. Avatar photo
    JonathanRRogers

    Others have pointed out the biggest problems with the discussion of Google vs. Oracle. I'd also like to debunk the idea that Google took value from Oracle by using Java instead of inventing their own language. Anyone can develop a platform for use on mobile devices based on Java SE free of cost because it has been released as Free and Open Source software. There is no need to get permission from Oracle or pay them anything. http://openjdk.java.net/ I think that Google's copying that is the subject of the lawsuit occurred before Java SE was released under an Open Source license. Today, no lawsuit would be possible.

    Similarly, the core of the Android platform has been released as Free and Open Source software so that anyone can use it without permission from Google. https://source.android.com/

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    Dave T

    OK, guys, so you just introduced me to Malcolm Gladwell's podcast, and I have this moment completed his two-part series (Season 4.1 Puzzle Rush and 4.2 Tortise and the Hare) on the LSAT, Harvard Law, Scalia, and the problem with standardized testing.

    Guys. You *have* to talk about this. Is he right, that the LSAT is essentially stupid and useless? Because that's not the impression I've gotten from you. And if he's wrong, why is he wrong?

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