The First Circuit — a student perspective

Guest written and posted by Jason Harrow, 1L at HLS.

The New Yorker’s longtime baseball writer Roger Angell once remarked that “the business of caring — caring deeply and passionately, really caring” is a “capacity or an emotion that has almost gone out of our lives.” As a first-year law student, it can sometimes seem that I will one day become a “real” lawyer only when I forget about even those very last bits of passion that Angell mentions: after all, a lawyer is supposed to be neutral. Dispassionate. Unbiased. You’re supposed to argue both sides. Caring deeply about the outcome of an issue isn’t on the agenda most days.

But someone, apparently, forgot to tell that to Charlie Nesson and the passionate band of students who work with him to defend Joel Tenenbaum against the RIAA. After spending the morning at the courthouse with them as they discussed the case before the First Circuit argument and then having the chance to watch the argument in person, nothing could be plainer then the fact that they do care about the outcome. Professor Nesson didn’t use his time at the podium to nitpick over the word “or” or dissect whether the courts were “urged” or “recommended” to keep cameras out of the court, but instead he had the temerity to explain to three appellate judges why it really matters that Joel’s case is streamed over the Internet. That’s not to say that such parsing of the exact words of the judicial rules isn’t important, and it’s clear that the team working to defend Joel can match wits in that department with anyone on the other side. Yet what’s evident from watching them in action is that they were trying to tell the judges that what side’s reading of the text had more “surplus language” shouldn’t be the only thing that matters; rather what should also matter is what will happen if they keep the cameras that would narrowcast the trial out of the physical courtroom to a node on the net.

Indeed, in what can only be described as a “lawyerly” argument, the other side didn’t even attempt to answer what seem like basic questions: What will happen to Joel if the trial is not allowed to be streamed? What will happen to the right to a jury trial? What effect will this have on a judge’s ability to manage what happens in her own courtroom? Whether the three judges who now hold the decision in their hands will consider those fundamental questions when they write their opinion is up in the air; at this point, we can only keep our fingers crossed that they do, I suppose. What is not in doubt, however, is that there are at least a few lawyers for whom neutrality and dispassion are not virtues but are vices, and that was on display in at least one federal courthouse yesterday morning. It was a privilege to be able to see it, and we can only hope that many, many more people will be able to view that passion on the Internet whenever the trial commences.