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Abstract

I conceive my role at this gathering to be that of a talking fish. Let me explain. The great twentieth-century appellate lawyer, John W. Davis, was once asked to give a speech about oral advocacy. He did so, while observing that it was a bit like asking a fisherman to describe how to reel in a fish; wouldn't it be more pertinent, Davis inquired, to ask the fish for his reflections? That is, "if the fish himself could be induced to give his views on the most effective methods of approach." Davis's literary conceit can be extended a bit to think of this Symposium as a meeting of marine biologists discussing aquariums, their decoration, their placement, their contents, and their future, if any. As an inhabitant of such a venue, I am easily induced to offer views even while my species is dissected and my habitat is explored.

There is, it bears emphasizing, a broader ecosystem beyond the courthouse/aquarium - the larger political community that those in the aquarium purport to serve while those in the academy engage in observation - which provides the relevant context. The confluence of court and community may usefully be approached through what I consider the iconic image of the American courthouse in the formative period of our legal and political history: it is the painting of Patrick Henry in the Hanover County Courthouse arguing the Parson 's Cause, which raised in 1763 the question whether and how the citizens of Virginia should compensate the Anglican clergy. The entire political community is on hand to observe and to participate. Of course, that political community was constricted; you will search in vain for the face of either a woman or an African American in the painting. Nevertheless, with those fundamental limitations to the polity of the American Eden acknowledged, it is evident that the observant and participatory community fills the courtroom and extends outside the courthouse door toward the tavern beyond, where, as Justice Robert H. Jackson once observed, lawyers and their clients traditionally retire to celebrate the "last rites" for court proceedings. There is historical symmetry in the fact that slightly more than two centuries later, this little courtroom also played a supporting role in the development of the constitutional doctrine - as opposed to the customary practice-of judicial transparency. A conviction imposed after a closed murder trial conducted in that courtroom became the vehicle by which the Supreme Court, in 1980, established a First Amendment right of press and public to attend criminal trials.

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