Professor Lessig engages in some undeserved self-flagellation over the outcome of the Eldred case:
A few seconds later, the opinions arrived by e-mail. I took the phone off the hook, posted an announcement of the ruling on our blog, and sat down to see where I had been wrong in my reasoning. My reasoning. Here was a case that pitted all the money in the world against reasoning. And here was the last naïve law professor, scouring the pages, looking for reasoning.
I first scoured the majority opinion, written by Ginsburg, looking for how the court would distinguish the principle in this case from the principle in Lopez. The reasoning was nowhere to be found. The case was not even cited. The core argument of our case did not even appear in the court's opinion. I couldn't quite believe what I was reading. I had said that there was no way this court could reconcile limited powers with the commerce clause and unlimited powers with the progress clause. It had never even occurred to me that they could reconcile the two by not addressing the argument at all.
As any lawyer knows, sometimes being right isn't enough - Satan's minion's are shrewd persauders. After all, he gets his pick.
Link from Ernie.
Posted by wasylik at March 2, 2004 01:10 PM | TrackBack