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Don’t Make the Justices Angry

Gerard Magliocca

Gerard N. Magliocca is the Samuel R. Rosen Professor at the Indiana University Robert H. McKinney School of Law. Professor Magliocca is the author of three books and over twenty articles on constitutional law and intellectual property. He received his undergraduate degree from Stanford, his law degree from Yale, and joined the faculty after two years as an attorney at Covington and Burling and one year as a law clerk for Judge Guido Calabresi on the United States Court of Appeals for the Second Circuit. Professor Magliocca has received the Best New Professor Award and the Black Cane (Most Outstanding Professor) from the student body, and in 2008 held the Fulbright-Dow Distinguished Research Chair of the Roosevelt Study Center in Middelburg, The Netherlands. He was elected to the American Law Institute (ALI) in 2013.

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7 Responses

  1. Shag from Brookline says:

    One umpire protecting another umpire. (Umpires cannot be “penalized” for piling on.) Perhaps the heat can become overbearing under those robes, especially when a response to a snide remark is equally snide. But consider the client’s interests. Might Scalia and Roberts getting hot under their robes at the lawyer take it out on his client?

  2. Paul Horwitz says:

    I found the comments on that story deeply depressing.

  3. Jair Bair says:

    Hey Gerry —

    Did you actually read the transcript of Professor Preis’s oral argument? Perhaps you should. It certainly admits a reading importantly different from the breathless hat-handing drama reported at the link . . . .

  4. Kirt Lashe says:

    Still no response to “jair bair,” Gerald? What a hack.

  5. Gerard Magliocca says:

    Well, the transcript doesn’t reveal the tenor of the argument. The audio should clear that up though.

  6. Jair Bair says:

    You’re right that it doesn’t reveal the tenor of the argument. But it does reveal a good deal of other things — like Justice Breyer’s participation in the dialogue at the relevant juncture — that the author of the linked post suspiciously elided. You missed this entirely because you didn’t read the source. Weak.

    (By the way, kudos to Jason Mazzone for catching what you missed.)

  7. Bruce Boyden says:

    I’m not sure what brought out the trolls on this post. Gerard’s statement in the original post is completely correct, the *account* of the oral argument is harsh. There’s a link to the account, and the account links to the transcript, so interested readers seeking confirmation can go check it out for themselves. I really do not think a one-sentence blog post with a link calls for anything more, and if you do, I think you have an odd idea of what blogging requires, or perhaps manufactured one for this one post.

    Furthermore, I read the transcript and listened to the oral argument, and I still don’t hear or read anything clearly contradicting the reporter’s account. It’s hard to tell if, for example, Roberts was just sitting there steaming for two minutes while Breyer and Scalia asked a couple of questions in the interim. Breyer himself seems to be coming to Scalia’s *defense* rather than agreeing with counsel (he seems to be saying that he’d be surprised if Scalia wrote such an opinion, because he thinks petitioners have a good argument), and Breyer had previously expressed frustration with respondent’s argument, so I don’t see that as contradicting the news account. On the slightly contradictory side, not apparent from the transcript but what I get from listening to the audio, are the facts that (1) respondent’s counsel laughs nervously as he says the allegedly glare-inducing remark — that makes it seem like less of an attack on Scalia than it was portrayed in the article (although he did in fact emphasize “you” slightly). And (2), Breyer jumps in fairly quickly, not giving him much time to glare. But on the other side, Roberts’ pursuit of the quotation issue seems slightly more aggressive on the audio than I got from the text.

    I think after listening to the audio and reading the transcript that the reporter, as reporters are wont to do, perhaps exaggerated the importance of this pair of catchy little exchanges. Neither the remark in question nor the exchange over the quotation strikes me as terribly significant. But I would respectfully disagree with Jason Mazzone that the transcript clearly *contradicts* the news account, and so *even if* Gerard had some sort of weird obligation to read the transcript (and heck, why not the briefs and the entire record while we’re at it) before posting a one-sentence link to a news story, I don’t know that it would have made any difference.

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