Walker Eliot hunched in concentration, his mind speeding gracefully through a field of appealing possibilities. He flipped a page in the catalog, surveying the candidates, imagining his body against them. How would they feel? Better than the one he had now, that was certain. With one hand he massaged his lower back, working against a knot that had started forming, a twinge of pain. The firm had a wide variety of chairs available for associates, as the catalog confirmed. There was the Ratchet Back Molded Foam Task Chair, the Multi Function Ergonomic Leather, the Executive Fabric Task Office Chair with optional Loop Arms. And the pinnacle, the ne plus ultra, the Ultimate Ergonomic Mesh Office Chair. That’s the one for me, Walker thought, reading the description. It was a marvel of human ingenuity, more a loyal and affectionate companion than a piece of furniture. Its polymerized plastic frame breathed; its active lumbar support changed shape to match the curve of your back. It had synchro tilt control, pneumatic lift, and three-inch dual wheel casters. Walker did not know what these last things were, but he knew that he wanted them. Even the name was enticing. Aeron! It spoke of grace and majesty; in Walker’s mind it conjured images of dragonlike creatures that dwelt on mountaintops and slept coiled in clouds, their spines untroubled by any lack of lumbar support.
“Aeron,” he said out loud, nodding. His current chair was the Executive 2800, one of the lower-end models. Unsynchronized, unpneumatic, uncomfortable. Unacceptable. But also unchangeable, at least according to the people in office services, at least for a while. Walker had inherited the office of a departed fourth-year associate, which he appreciated.
But the departed associate had recently upgraded his chair, which Walker had also inherited, and chair upgrades were done by office and couldn’t be done more than once a year. “What did he upgrade from?” Walker asked incredulously. “A tree stump?”
“Some people like the cushions,” the office manager explained.
They like the cushions, Walker thought. No wonder this guy left the firm; he probably upgraded to an Alaskan salmon cannery. “Look,” he said. “I don’t like the cushions. I want a different chair.”
“You want a different chair,” the manager said. “Have I given you false hope? Have I not been clear about this with you? Your office isn’t due for an upgrade for ten months.”
“There’s one with a mesh back,” Walker said. “It breathes.”
The manager was silent for a moment. “I’m sorry,” she said. “Your upgrade has been done. We can’t replace your chair unless it’s broken.”
Walker’s mind raced. “If you imagine that this is the chair I want,” he said, “it’s broken. The pneumatic lift doesn’t work. The lumbar support isn’t active.”
The office manager hung up on him. When he called back, she didn’t bother with salutations. “Not unless it’s broken.”
“If my chair were broken,” Walker said, “hypothetically speaking, how soon could you get me a new one?”
“Same day,” she said. “They’re in stock. But you’re not getting a new one.”
“Right.”
He called again a short time later, panting slightly. “My chair is broken.”
“What happened?”
“I think it lost the will to live.”
She was at his door in five minutes, a thirtyish blonde with a hairband. Her blue eyes surveyed the scene dispassionately. The Executive 2800 was broken, emphatically so. Its cushions were ripped, its spine bent. One armrest had snapped free of its moorings and dangled to the side. “Looks to me like it put up a fight.”
Walker shrugged, wiping sweat from his forehead. “There may have been some persuasion involved.” The office manager closed her eyes as if in pain, then opened them and scowled at him. Walker was getting used to that look, the mixture of bafflement and outrage, the what-kindof-crazy-person-is-this
expression. It bothered him less as time went by. “So,” he said. “Do I get a new chair now?”
The surprising thing about the world, Walker was coming to realize, was how plastic it was, how malleable to will and intellect. At times it seemed almost pitiably vulnerable, at times almost defenseless. Around him for years he’d seen others barrel through obstacles, overcome with force and labor what he’d learned could simply be thought out of existence. The possibility of doing that—his own ability to do it—was thrilling, but it was also frightening.
Walker had gone to Yale Law, not seeing much of a choice. Harvard, where he took his undergraduate degree, was ideal for college, the philosophy department nestled in the red brick of Emerson Hall, the residential houses lining the river. He still felt warmth for Cambridge, still liked to linger by the chess players and street musicians in Harvard Square. But the law school was different, colder and a bit strung out from competition. “Harvard Law School is like the Chinese army,” an advisor told him. “It just keeps churning them out.”
So New Haven for three years, darkened Gothic buildings with leaded glass windows, the Metro North trains into New York for diversion. Yale had its share of neurotics, the psycho types who slept in the library, kept changes of clothes in their carrels. Exams were bad if you let yourself get caught up in the fog of stress that descended, the rumors about the different outline groups. Some people showed up at the copy centers with fake IDs, impersonating members of a storied group in order to steal an outline. “It’s a shame,” one professor said, “that the people who used to go to Harvard for the reputation are starting to come here.”
Walker avoided the groups. And, exams apart, there was something different about Yale. At other law schools, faculty struggled with the question of whether they should allow unprepared students to pass when called on. At Yale, prepared or not, you couldn’t shut them up. Part of it was bootlicking, competition for the attention of the professors, the clerkship recommendations, but part of it was just raw enthusiasm. Walker sat silently in the back of the room, taking notes and musing. He’d gone to law school for no particular reason, mostly from a lack of anything better to do, but it was proving tolerable. Not especially difficult; not as timeconsuming as he’d been led to believe. He’d heard the stories about the incredible intellects of Yale, and he’d been prepared to feel outclassed.
But he didn’t, and after a month of searching vainly for geniuses, he had another thought. It’s me. I’m the one they’re going to tell stories about. Walker kept up with his philosophy; he read further in Joyce, perched on the dorm room couch with Finnegans Wake and the McHugh annotations. He learned to play squash; he wrote acrostic sonnets spelling the names of fellow students and involving them in various situations designed to illustrate the operation of rules of law.
And somewhere along the way, he fell in love.
It wasn’t philosophy of law that won him over, stole his heart before he fully realized what was happening. It wasn’t the theory so prized at Yale, the critical deconstruction of claims to objectivity. It was the law itself, in its pureness and intricacy. Walker had hated philosophy of law, and he had little use for theory. Thinking about the law wasn’t interesting; what was interesting was doing it, finding the answers. From this perspective, the school was slightly frustrating. They weren’t being taught the law, not really; not at Yale. They were taught methods of argumentation, ways of looking at problems. No one wanted to hear the right answer on exams; they wanted arguments on both sides. That was what it meant to think like a lawyer. Yale was still gripped by the legacy of realism, and the idea that there might be a right answer was seen as a symptom of naivete, unworldliness. When you get out of here, his civil procedure professor said, you will be capable of inflicting immense harm on people. You will be sharp and uncompromising; your minds will have been forged into lethal weapons. You will be lawyers. Use that power wisely.
Nonsense, thought Walker. He didn’t feel like a weapon; he felt like an explorer pushing the borders of the map, like a suitor eager to learn every detail about his beloved. This was discovery, not invention; of course there were right answers. After graduation he went on to a clerkship on the federal court of appeals for the District of Columbia Circuit, and there he found vindication. The questions the cases presented were every bit as complicated as the exams his professors had dreamed up, but his judge didn’t ask for arguments on both sides. The idea that law is just what judges say is fine for lawyers, Walker thought. It’s fine for law professors. They can say that, in talking about how a case should be decided, they’re only forecasting what the courts will do. But that attitude doesn’t get you far as a judge. And not as a law clerk either. Judge Andrews didn’t hire me to predict his behavior.
Walker worked out the issues from the ground up. He ignored the parties’ briefs; he traced the applicable doctrines back through hundreds of years of decisions, untangling the skein of opinions until the authorities had been reconciled, until the answers lay clear and irrefutable. From his Capitol Hill apartment he walked to the courthouse on Fourth and Constitution, feeling the empire of the law spread around him, passing through his body like gamma rays, ordering the world like a magnetic field. All of it unseen but visible to the mind. Walker closed his eyes and there it was, the streaming code of statutes, amendments, and repeals; judicial decisions spawning other lines of authority, interpreting, distinguishing, overruling; the law’s endless conversation with itself. Judge Andrews looked into Walker’s small office with an expression of polite curiosity, surveying the sea of papers around the desk, the stacks of nineteenth-century treatises. He listened to Walker’s breathless recitations, nodding, and explained that he’d reached the same conclusion, though typically by a somewhat shorter route.
That was the clincher. They agreed on everything, and not because of ideology. Andrews was an efficiency-minded libertarian; Walker was basically uninterested in politics. But they agreed on the law, just as they’d have agreed on a question of mathematics. Twice the other judges on the panel hadn’t; twice Walker had been set to work drafting a dissent. And twice the others had read what the Andrews chambers circulated and changed their minds, signing on to his opinion. It was the exercise of judgment, not will; it was the rule of law. The D.C. Circuit was heaven, Walker thought at times, the perfection of reason.
In his sober moments, he knew it wasn’t. Heaven was where the gods lived. It was six blocks away, at One First Street, Northeast, a plaza with clear-running fountains, a building with marble pillars and great bronze doors. The Supreme Court.
Walker had applied for a Supreme Court clerkship without really thinking. It seemed as if everyone who’d been at Yale did, at least those who got federal appellate clerkships on the first go-around. It was when the invitations to interview began to come his way that he first considered the prospect seriously, and then he was troubled. He knew that the Court posed problems for his vision of the world. Walker had done what most thought impossible, gone to Yale and emerged a formalist, convinced of the law’s abstract purity. His appellate clerkship had only strengthened his belief. The appellate courts ironed out wrinkles in the law, and
Walker had warmed to the task, explaining Supreme Court decisions, instructing the trial courts, glossing the authoritative texts. But the Supreme Court was bound by nothing, not even its earlier decisions, which it could overrule if it chose. It was engaged in a fundamentally different venture, with no fixed points by which to navigate. It made the law.
This was not something Walker was sure he wanted to be a part of. Being able to discern the right answer, to deduce it from certain unquestionable givens—that was a power of sorts. Being able to make an answer right was a greater power, something altogether different, and that was the power of the Court. It smacked of the godlike, and Walker did not want to be a god. There were principles out there, Walker believed. Beyond the malleable words, the cases to be dissected and distinguished, there was something else. There was the law. But that was not a perspective the Court could take, at least not always. It came down to this, Walker thought: gods have nothing to believe in. How do you decide, he wondered, when whatever you say will be right?
In the interviews he hid his misgivings. He talked of his admiration for Oliver Wendell Holmes and the great judge Learned Hand; he discussed the finer points of the Court’s recent opinions. And he was hired, in the end, by Marshall Arlen, the Court’s oldest Justice, a holdover from the earlier days, a man plucked from the Mississippi governor’s office to serve with Blackmun and Brennan and Douglas.
The clerkship began in July. The city was hot; when it rained, steam rose from the pavements and the streets smelled like a swimming pool. On his first day of work, Walker showed up in a suit, sweat clinging to his ribs and his heart jumping inside him. He had to admit he was a little scared. Scared by what the job might do to him, what it might call upon him to do. Knowledge cost innocence, and learning what law was made of, its basic force and nature, might bear a heavy price.
But the first weeks were a relaxing introduction. Most of the Justices had left D.C. to escape the heat, and the clerks dressed casually and played basketball in the upstairs gym. The summer months were downtime before the arguments started up again in October, and with no cases to be decided, the workload was relatively light. Walker processed the cert petitions, requests for the Court to hear a case, writing summary memos to spare the Justices the work of reading each petition, and learned quickly how to pick the few credible ones from the vast heap of those that never should have been filed. Over lunches, in the clerk dining
room separated from the public cafeteria by soundproofed glass doors, he got to know the other clerks and picked up what institutional wisdom he could from the holdovers who’d be there until August.
Walker had read the clerkship memoirs; he’d heard about cabals and conspiracies, clerk shouting matches late at night in the red-carpeted hallways and vicious fouls on the basketball court. The summer offered none of this. There were strong personalities among the clerks, certainly, and eccentrics. One had tried to walk through the bronze doors on his first day of work, unaware of the clerks’ side entrance. The doors were locked, of course; he’d lost his balance on the marble steps and eventually made his way to the orientation session scuffed and bruised, his scraped palm spotting the forms they filled out. The intake supervisor was amused. “No need to sign it in blood,” she said. “We’re not a law firm here.” And there were some clerks identifiable by ideology, crew-cut conservatives from Chicago, liberal throwbacks from the appellate courts in California. Their grounds of disagreement were already staked out, their arguments readied for deployment when the opportunity arose. For the moment, though, it felt friendly, even familial.
The executions were harder. These still went on in the summer, heedless of the Court’s calendar. The states scheduled them; at the Court a permanent employee known as the death clerk made up a list and circulated it to the various chambers each week. There the law clerks read it and prepared. Each Justice was responsible for certain states, and that Justice’s chambers took the leading role in overseeing executions in those states. Running the execution, the clerks called it, though it didn’t mean they were involved in anything more than coordinating the Court’s review.
Walker didn’t like executions. No one did, he suspected; the facts were invariably depressing and the process macabre. The late-night vigils, the hours waiting in the deserted building for some lower court to act so that the lawyers could make the final appeal, raising arguments the clerks had hashed out days before and almost always rejected. Some of the clerks took it harder than others. Some felt compromised simply by participating, by the fact that they’d been the ones to report the vote, to give the go-ahead. For days afterward they would be pale and withdrawn. Walker lacked that visceral reaction; if the people wanted the death penalty, they could have it. But he disliked the Court’s involvement in what was usually a fact-driven question, and worse, an emotional one, divisive for reasons of policy more than law. It should have been left to the
lower federal courts, he thought; it was a needless strain. But the clerks generally worked through the issues cooperatively, and the occasional arguments about the fairness of state procedures did not disturb Walker.
It was the merits work, the cases the Court actually decided, that scared him. The reason there were right answers at the appellate level, he’d realized, was largely that the lower courts were bound to follow the decisions of the Supreme Court. Those decisions mediated between the intangible law and the thousands of courts around the country. They were the clanking armor that housed the hidden spirit, unquestionable and authoritative as a plate of steel. For practical purposes, for the lower courts, they were the law itself.
But not for the Supreme Court, which knew the law directly and could shape it as it wished. That was the problem; that was the seed of doubt. A lower court that tried to twist the law could be slapped down, its judgment reversed. The Supreme Court guarded the law from all others. But from the high court there was no appeal; for its wrongs there was no remedy. Nothing could protect the law from the Court, and Walker looked for vandals in its marble halls.
Justice Arlen returned in September, seeming an unlikely ravager. Small and cheerful, he arrived punctually in the mornings and took a midafternoon coffee break to regale his clerks with tales of the older days, his Southern accent swelling as the memories poured forth. The work ahead would be difficult at times, he told them, but he had confidence in their abilities and confidence in the Court. Walker wasn’t sure, but as Arlen’s four clerks looked over the argument calendar and divided the cases among themselves, he began to relax. Many of the cases, it turned out, were actually quite easy. Many of the splits among the federal circuits were the products of errors that were relatively obvious. Walker could spot them; so could the other clerks; so could the Justices. The Supreme Court was unanimous almost half the time.
In December Walker drafted his first opinion. Arlen struck paragraphs in a looping cursive hand, added new sections, inserted phrases. At the third draft he nodded approval from behind his desk. “You’re learning,” he said. “Most clerks write as though they aren’t individuals; they try to sound like the law itself. They fear to be present in the opinion; they want to suggest that there’s no person at work, no intellect, just the mechanical functioning of the law. That’s why they resort to the legalisms, the jargon. But individuality and objectivity are not incompatible.
And the law is not mechanical. It needs human intelligence to give it life.”
Walker felt a deep satisfaction. At the D.C. Circuit, he had explained the law as it existed, but now he was at work fixing it, correcting mistakes. And more: he was bringing it into being, extending and making tangible the promise and implication of earlier decisions. The law could not create itself, but no more did he create it; it existed independent of his will, waiting for the light of reason to reveal.
Winter draped the Court’s marble in snow. The morning sun was blinding; Walker squinted as he walked to work, straining to read the inscription on the lintel. EQUAL JUSTICE UNDER LAW. The clerks played football outside, before an audience of nine carefully constructed snowmen. There were dissents now, especially in the constitutional cases; the clerks carried the drafts down the red-carpeted hallways, past the marble busts of former Justices, to each chambers. The majority opinion was revised in response, footnotes added. New versions circulated and the process began again.
Walker drafted his share of dissents, and, unlike at the D.C. Circuit, they did not become majorities. He accepted this. The words of the Constitution by themselves left many cases unresolved. Reaching an answer required a theory, or at least an interpretive methodology, and on these matters the Justices differed. Arlen did not compromise to troll for swing votes; he would not shade the facts to avoid a difficult issue that might fracture his majority. Left to his own designs, Walker might have. If the facts threatened the law, he thought, so much the worse for them. The Court was not there for the facts. But Arlen did not write for the other Justices; he wrote for himself, or for history. “There’s more to this job than counting to five,” he said. Walker admired that. He admired his Justice; he respected the others. They were wrong at times, he thought, but not knowingly. And he liked the other clerks, who still played basketball together and gathered for weekly happy hours at the Court’s interior courtyards. It might not have been heaven, but for Walker it was close to paradise.
It wasn’t until March that he encountered a problem case, and then it stopped him cold. He read the briefs again, and then once more; he embarked on his usual forays into the doctrinal history. The papers welled around him, the books piled up. And after it all his mind retained the same neutral, appraising cast it had had at the start, the same curiosity
about what the right answer was. Walker rapped his knuckles against his head, perplexed. Usually at this stage he brimmed with passion, determined to vindicate the correct rule of law, outraged at the chicanery of the lawyers who argued otherwise and the idiocy of the judges who believed them. But he had no reaction to this case.
He moved on to the next one, worried that something had broken within him. Mathematicians may lose their powers in an instant. But his blood boiled reassuringly: the Seventh Circuit had failed to grasp the difference between exhaustion and procedural default. Not me, then, he thought. He returned to the problem case. There were tools of legal analysis, canons of interpretation, modalities of argument. Text, structure, doctrine, history, the scalpels that law school had trained him to wield. None made an impression. For a week the briefs lay on his desk, the case crouched within his mind, squat and obdurate, impenetrable. He consulted with the clerks in other chambers. “Tough case,” said one. “But it’s a stupid law.” And another: “You know subsection (d)(3) was actually inserted by a senator who hoped the whole thing would get voted down.” Walker stopped his ears. These were extralegal considerations, irrelevant, impure. Still he could make no headway. Finally he went to see Justice Arlen and confessed his failure.
Arlen looked at him in amusement, half hidden behind the large mahogany desk. The Justice’s chambers were well lit and modern in their furnishings; despite his age, Arlen had been one of the first to embrace new technology. Nonetheless, there hung around him an air of the ancient and the inscrutable. From the wall peered down a portrait of former Justice Hugo Black, a native Alabaman and one of Arlen’s inspirations.
“You think that legal reasoning gives no answer,” said Arlen softly. “Perhaps it does not.”
Judgment, thought Walker, not will. But when judgment runs out, what then? “So it’s a gap,” he said. “The Court is going to have to make law here.”
Arlen gave him a cryptic smile. He leaned back and laced his fingers over his small belly. “There are no gaps in the law, Walker. There are only answers we have not yet found. It may be that you cannot see an answer here. Perhaps if we waited, it would become clear; perhaps progress in another direction, in other cases, would shed some light on this one. But we do not have that luxury; we must decide it now.
“So we decide the case. That is what judges do. But it does not mean
we make the law. We have the power to make the law if we choose, but our duty is to the truth, and power is not the measure of truth.”
Interesting but unhelpful, thought Walker, wondering what he’d stumbled into. With his elfin smile and small goatee, the Justice resembled a sprite perched on a toadstool. “But how do you decide?” he asked.
Arlen raised his eyebrows. In earlier pictures Walker had seen thick white curls on the man’s head; now years of intellectual focus had burned them away and Arlen’s skull rose, a gleaming sun over receding fog. “As a judge does. Or a clerk. Judging is not a mechanical process, Walker. A computer could not do it. But you are a human, and you have resources. Value-free adjudication is an illusion, and a dangerous one. Too often it allows the judge to blind himself to his own values and deny their influence. Choose the right values, and they can be acknowledged openly.”
Walker returned to his desk, still wondering. A judge’s values were not supposed to enter into decisions; that was the point of the elevation of judgment over will, the ideal of the rule of law and not of men. So what value could Arlen be suggesting? Not the ones his fellow clerks had offered, surely; not the desire to help out a sympathetic litigant or frustrate the operation of a malicious statute. A judge could not favor a party or impose his vision of wise policy. A legitimate value would have to be one implicit in the nature of legal reasoning itself.
Walker turned back to the analytic tools that had failed him, considering them not in application to the case but in their collective nature, seeking a unifying quality. An idea began to dawn in his mind. There is a purpose here, he thought; there is a theme. The interpretive canons, the principles of adjudication, were in large part aesthetic. They demanded doctrinal coherence, elegance, harmony between different lines of cases.
That’s adjudication, he thought. Choosing the interpretation that shows the law in its best light, that makes it most beautiful. And that’s what a computer cannot do.
Walker nodded rapidly, his mind gathering speed. A computer cannot make aesthetic judgments, he thought; a computer cannot love. The permissible value is love for the law, the desire to make it beautiful. And that value identifies the correct answer. The measure of truth is beauty, and where judgment runs out we turn to love. This is the meaning of the oath we swear, that pledge of fidelity to the law.
He sighed aloud, and the clerk who shared his office looked up from her computer. Walker did not notice. He was overcome by revelation, and his heart was lost all over again, to the law not in its majesty and omniscience but in its limits and its frailty. He saw now what breathed inside the armor of the Court’s opinions, the ghost in the machine. He saw the law not as an all-encompassing matrix but as a finite vulnerable creature that needed him, that grew within his mind and for its perfection required his love. “You,” said Walker. “I favor only you.”
Rachel glanced over without moving her head. Like most of the other clerks, she had come to the conclusion that there was something very strange about Walker. Addressing the air was only slightly beyond the range of his usual behavior. She cleared her throat cautiously. “Do you want to make another pot of coffee?” she asked. Walker did not hear. He was communing with the ineffable, as happy as he’d ever been.
Short months later it was over. A few more memos, one majority opinion, one dissent, and Walker was done. At the end of the year, the clerks put on a skit for the Court personnel, impersonating the Justices, singing comic songs about the cases decided that term. Walker played Justice Arlen, while the man himself sat in the audience and slapped his knee with delight. As he took off the borrowed robes, Walker felt a terrible pang of loss. For a year he’d been able to do just that, playact the part of a Justice. And then he was out in the world again with the sneaking suspicion that nothing else would quite measure up.
Walker pulled a lever on the side of the Ultimate Ergonomic Mesh Office Chair. With a soft sigh of air his seat descended. The pneumatic lift wouldn’t bear him up again; if he wanted to raise the seat he would have to stand. This was probably a good thing, he decided. The distraction would otherwise have been too great. He had spent a good hour tinkering with the lumbar support and the tilt control, which was synchronized with some other feature he’d yet to identify. An hour during which he was supposed to be writing a brief, an hour he’d charge to the client anyway, because he couldn’t very well construct an unassailable argument while tilted at the wrong angle.
The brief was for Larry Angstrom, and it was the appeal of a class certification decision. Much of the firm’s work consisted of opposing class
actions. “It’s coercion,” Larry Angstrom said, outrage in his voice. “The companies have to settle because they’re threatened with bankruptcy if they lose. It’s blackmail.” He meant extortion, Walker thought, indifferent. He wasn’t concerned with the policy issues; he was there for the law. Legally, the key question was whether the individual claims presented sufficient common issues to make a single trial feasible. Here the plaintiffs seemed to have a strong case, which was probably why they’d won at the lower court level and why Morgan Siler had been called in for the appeal. The Vendstar Corporation had marketed household products over the phone, their salespeople following a script that included a promise that the price offered was the best deal available in the community. Fraud, said the plaintiffs, and more importantly, common and uniform fraud: Vendstar set the same price nationwide and made no effort to find out local prices.
Walker leaned back in his new chair, considering. He had learned something in the practice of law that had not been apparent to him while clerking: you could always find a route to the conclusion you wanted. It might not be an obvious one; it might not be one that would occur to many lawyers. He remembered Harold’s baffled expression when Walker had asserted that their case against the arbitrageurs was really about a unilateral contract. There he had been throwing up a roadblock in order to give himself something to overcome. But he could do it the other way too; he could find a way around the obstacles that most lawyers would simply charge at again and again. He could shift the way the case looked, so that there weren’t any obstacles at all.
In a way it was like changing the subject. In a way it was like changing the world. For those who sought guidance through the invisible realm of law, any competent lawyer could draw a map. But Walker could draw multitudes, and that was his value. Embroiled in litigation, parties sought the particular map that would lead them to victory, and Walker could provide it. Lay a road through the forest, carve a river to the ocean, throw up a range of mountains: the legal landscape bent to his touch. He could call Atlantis from the sea, pinpoint Avalon and El Dorado, weld Pangaea from the shattered earth. Invoke the right doctrines, focus on the right facts, and geography yielded to the mind.
The falsity of the best-deal promise looked like an issue common to all the suits, but Walker was quite confident that from the appropriate
perspective it wasn’t. He leaned farther back, clearing his mind. For five minutes or so he remained almost motionless, then he jerked emphatically upright and began to type. Two important thoughts had occurred to him. First, if the price offered actually happened to be the best deal, then the promise wasn’t false. That might not have been the case in any significant number of the transactions; indeed, the evidence suggested it wasn’t. But it was an issue that had to be dealt with for each individual purchaser and each individual purchase. That should be enough to stop the class action from proceeding.
Second, the tilt of the chair back was synchronized with the movement of the seat.
It took almost two hours to hammer out a draft of the brief. There were some issues that demanded a good deal of finesse. Walker had found a path to the desired conclusion, but it was a narrow one, depending on a couple of delicate conceptual moves. Angstrom might not get it, might not be able to present it properly in the oral argument, and even if he did, there was no guarantee the court would understand. But what was the worst that could happen? They’d lose; Vendstar would be forced to settle. Walker was indifferent to that prospect. His job was to identify a rule of law under which they could prevail, and he’d done it.
He took a final look at the opposing side’s brief to see if there were any other points that needed to be addressed, first skimming, then reading more slowly, and finally stopping altogether. The brief hadn’t impressed him much when he’d gone through it the first time. A competent, workmanlike job, the sort of thing any major firm could produce. But as he read it now, his subtle arguments fresh in his mind, it seemed different.
They’ve anticipated this, Walker realized. They didn’t address it directly, but they’re slanting the facts, positioning themselves to argue that there was an implicit promise to check local prices. That would have been uniformly false; that would be a common issue. He flipped the pages, sensing something at work. He felt a presence; he felt an intelligence pushing back against his.
He felt a flash of recognition.
Walker turned to the cover of the brief, where the names of the lawyers were listed. There were a couple of different firms and he had to
go to the inside cover before he found the one he was looking for. Jennifer Caputo, who’d clerked for Justice Lambert the same year he had been with Arlen. A good clerk, a friend. They had worked together on a couple of cases, one about the free speech rights of abortion protesters, one about state funding of parochial schools. In each they’d agreed, struggled to make sure everything came out right. And now they were on opposite sides, battling over sales practices for dishwashing detergent and carpet shampoos.
Walker frowned. Jennifer had written a good brief; he had to admit it. If you looked at the facts the way she did, she might even be right on the law. It troubled him, but only for a moment. The case would come down to competing descriptions of the facts. As long as both sides were right on the law, he didn’t see what could go wrong.