amicus brief in Intel v. Squires, U.S. Sup. Crt. Dckt. 26-73, about IPRs:
https://drive.google.com/file/d/1J1DL41VUPCNG7kD1ABn42O2wih5PBjDU/view?usp=sharing
One of the many things that has bothered me in my legal career is that litigators prefer their legal precedents to be flat, stale, and all pointing one way–their way. Reality is full of curves, bumps, whispers, inanities, and contradictions; and the law reflects that. So when one reads the brief of one side, which makes it clear they’re right and all their cites back that up, and then reads the briefs of the other side, which is also clear they’re right (and the other side is wrong), and all of their cites back that up (many of the same cites used by their adversary), is somebody lying or just wrong?
Neither. The fact is, the law abounds with tensions, inconsistencies, and some outright contradictions. The “wisdom” of the powers-that-be is that, in writing a brief, you pretend the law is homogenous and consistent and agrees with you. Almost none of these adjectives is ever true.
I submitted a Supreme Court brief this week, trying to make that point. I believe a careful reading of the cases shows that things are so out of whack that at least one precedent must be over-turned. As luck would have it, two Supreme Court Justices said the same thing in their dissent to the case I believe needs to be overturned. Even more luckily, the two Justices are on opposite sides of our ideological divide (Gorsuch and Sotomayor), so my aggressive argumentation doesn’t seem based in political gamesmanship and name-calling.