A funny exchange form oral argument in Descamps v. United States (11-9540).

JUSTICE BREYER: You see why I turn back to the empirical question and keep wondering, why is it not possible to get, say, a law professor; they have spare time — get the sentencing committee, get someone to look and see what are the real behaviors that are convicted under section 459.

MR. HORWICH: I can -­

JUSTICE SCALIA: And then advise defendants who — who anticipate committing these crimes, so that they will know which crimes carry another 30 years. (Laughter.)


Update: On Facebook, Orin reminds me that when Justice Breyer was at Harvard, professors did not have to write much. Justice Breyer expanded on his publication record at HLS, via Orin’s post:

Those were the days when you just had to write one article [to receive tenure], and actually, I was the first person to whom Harvard ever applied the requirement that you have to write at least one. Erwin Griswold, who had been the Dean of Harvard Law School, had the theory that he knew which people were geniuses. If he approved of them, they would certainly do good work over time, and therefore they had to write nothing. After a while, however, people realized that was not such a wise idea, because someone has to push you to write something so that you see that you can do it. And probably everybody here has gone through that stage, and that’s not a pleasant stage. “How can I possibly write an article?” Everyone goes through that. Oh, they all think that I can, but they do not really understand.

Well, there it was, and moreover, they had a very exalted idea of themselves at Harvard and so it had to be a pretty good article. And I didn’t know a thing about copyright—although that’s exactly the kind of thought I couldn’t dwell on, because it would lead to the temptation to give up.

. . . . One of the less pleasant days of my life was after I’d handed [Dean] Derek Bok my 200-page manuscript to give to the Appointments Committee. He came back and said, “You know, when you write something”—and I didn’t like the tone of his voice—“sometimes it’s worth going over it again before handing it in. Marshal your arguments,” he said, “and use the most interesting points, but do not put in all the less interesting ones.” And that was very good advice. So what ended up being published as The Uneasy Case for Copyright was the expurgated version of something that had all kinds of rambling in it.

Plenty of spare time.

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