Back in April I visited Washington, D.C.. I visited partly to pick up some bobbleheads at an opportune time (just before Easter, and just before visiting family nearly as far eastward from California) and partly to attend Supreme Court oral arguments while I had the chance. The two cases I saw argued were Tapia v. United States and Microsoft v. i4i Limited Partnership. Shortly after I made some minor predictions for the cases, following up on an introduction of the cases and thoughts from oral argument. Let’s take a look at how the cases turned out, before the October 2011 term arguments start. (At this point on Monday, October 3, there’s probably already a line outside the Supreme Court building for the first arguments of the term.) If you need a refresher on the cases themselves, read my introductions noted above: for space reasons I won’t review much here.

Tapia v. United States

The Court unanimously ruled for Tapia, deciding that a judge may not consider the availability of rehabilitation programs when imposing a sentence of imprisonment or in choosing to lengthen a sentence.

The opinion

Justice Kagan wrote the opinion for a unanimous Court. Tapia had been sentenced to 51 months in prison, seemingly because the sentencing judge thought she should take part in a particular drug treatment program: a program she’d only be eligible for if she were in prison for a longer sentence. Justice Kagan’s concluded that a sentencing court can’t impose a prison term, and it can’t extend a prison term when it has decided to impose one, to foster a defendant’s rehabilitation.

Justice Kagan first briefly reviewed the history of the Sentencing Reform Act which enacted the relevant statutes (displaying almost professorial affection in noting that, “Aficionados of our sentencing decisions will recognize much of the story line.”). She concluded that the Act was intended to make sentencing more deterministic and consistent by eliminating much discretionary authority during sentencing and prior to release.

Justice Kagan next turned to the text of the relevant laws. She examined the text of 18 U.S.C. §3582(a), which reads:

The court, in determining whether to impose a term of imprisonment, and, if a term of imprisonment is to be imposed, in determining the length of the term…shall consider the factors set forth in section 3553(a) to the extent that they are applicable, recognizing that imprisonment is not an appropriate means of promoting correction and rehabilitation.

Justice Kagan concluded that, “§3582(a) tells courts that they should acknowledge that imprisonment is not suitable for the purpose of promoting rehabilitation.” While Justice Kagan noted that the text could have been more commanding — “thou shalt not”, say — she thought that Congress had nonetheless made itself clear. Justice Kagan also considered the argument that the “recognizing” clause applied only when determining a sentence, not when possibly lengthening it. She rejected this argument, noting that standard rules of grammar argued that a court considers the relevant factors both when deciding to imprison and when determining the length of imprisonment, and from this concluding that a court must “recognize” the inappropriateness of imprisonment for rehabilitation both when sentencing and when choosing a duration of imprisonment.

Justice Kagan also noted context supporting her interpretation. She led with 28 U.S.C. § 994(k), which I previously noted could shed light on the proper interpretation. She also noted the pointed absence of statutory authority for courts to ensure offenders participated in rehabilitation programs. (Tapia didn’t participate in the relevant rehab program because she wasn’t sent to the prison the judge recommended and because she wasn’t interested in the program.) Finally, she noted that those willing to consider legislative history would find support for her interpretation in the relevant Senate Report.

Justice Kagan next rejected arguments that the “rehabilitation model” which the SRA supplanted referred only to undue belief in “isolation and prison routine” causing the prisoner to reform. She called this reading “too narrow”, citing an essay which characterized the rehabilitation model more broadly. This was Part III, section B, if you’re interested in more detail — I’m not going to attempt to summarize any further than that.

Justice Kagan last noted that the sentencing judge may have improperly considered rehabilitation in determining the length of Tapia’s sentence. Thus the Court left open the possibility that the sentencing judge might not have done so. Finally, the Court sent the case back to the Ninth Circuit for further action.

The concurrence

Neither Justice Sotomayor nor Justice Alito was convinced that the sentencing judge actually did improperly sentence Tapia. Evidently unsatisfied by Justice Kagan’s noting that the sentencing judge only might have acted improperly, Justice Sotomayor wrote a concurrence, joined by Justice Alito, explaining why she thought the sentencing judge had not acted improperly. At the same time, she noted that the sentencing judge’s rationale was less than clear, and that she wasn’t completely certain that he hadn’t acted improperly. Thus both justices nonetheless joined Kagan’s opinion in full.

The outcome

None of this means that Tapia will necessarily get what she presumably wants: a shortened prison sentence. The Court reversed the judgment of the circuit court that upheld her sentence, and it remanded so that court would take a second look, but it didn’t specify the actual outcome. Justice Kagan’s opinion doesn’t conclude that the sentencing judge improperly lengthened Tapia’s sentence for the purpose of rehabilitation: it merely says that the judge may have done so. Justice Sotomayor’s concurrence, joined by Justice Alito, only further emphasizes this point. So on remand, the lower court might conclude that the sentencing judge didn’t improperly lengthen Tapia’s sentence to 51 months. Or it might not. Either way, Tapia’s done well so far: getting the Supreme Court to hear your case, and to rule in your favor, is no small feat.

Even if Tapia convinces the Ninth Circuit that the sentencing judge improperly lengthened her sentence, Tapia might be unsuccessful. Justice Kagan’s opinion concludes with, “[w]e leave it to the Court of Appeals to consider the effect of Tapia’s failure to object to the sentence when imposed.” So Tapia might have missed her chance to win that argument.

Thoughts

I’d gone into this case understanding it to be a nice concise demonstration of statutory interpretation, and I wasn’t mistaken. I wasn’t certain of the correct outcome on first reading the briefs, but §994(k) sealed it for me. It was nice to be vindicated in my thoughts on the case.

It’s easy to overread a case, picking out extremely nitpicky details and magnifying their importance. At the same time, a few details in Kagan’s opinion stuck out at me. First, in analyzing the statutory text, Kagan turned to the 1987 Random House dictionary for definitions. The Sentencing Reform Act was enacted in 1984, so the 1987 dictionary is contemporaneous. Second, Kagan prefaces the paragraph dealing with legislative history, “for those who consider legislative history useful”. The textualists on the bench will insist that the proper dictionary to interpret language is one contemporary with its writing, as a 1987 dictionary would usually be for a 1984 law. And Justice Scalia in particular rejects any reference to legislative history: he believes the law is what was passed, not what was not passed, as the aforementioned Senate Report was not. I think Kagan probably wrote as she did as gestures of comity to her fellow justices, such that everyone would be happy with the resulting opinion. Maybe that’s an overread, but I would guess it isn’t.

It’s also worth noting that this case was unanimous. Remember, a plurality to (more often) a majority of all Supreme Court decisions are unanimous. The Justices are not as fractious a bunch as you would believe from the cases and decisions that receive significant airplay.

Microsoft v. i4i

The Court unanimously (minus Chief Justice Roberts, who had recused himself apparently because his family owned Microsoft stock) ruled that the standard of proof for patent invalidity was clear and convincing evidence, not the lesser burden of merely a preponderance of the evidence. Further, it concluded that this standard was consistent both for evidence which the Patent and Trademark Office had reviewed, and for evidence which it had not reviewed.

Justice Sotomayor’s opinion for the Court

Justice Sotomayor wrote the opinion for all but Justice Thomas (more on him later). Her opinion relied on Justice Cardozo’s opinion in RCA v. Radio Engineering Laboratories, Inc.. Justice Cardozo in 1934 had described the standard of proof for finding invalidity as “clear and cogent evidence”. By the time the language at issue in Microsoft was added, Justice Sotomayor deemed this language to have become part of the common law (roughly: judge-made law, when some dividing line or another must be set for consistency but no laws have specified one). Moreover, she deemed Congress’s language to have used terms of art with well-known meanings to judges, which codified the “clear and convincing” standard. Thus until Congress says otherwise, “clear and convincing evidence” is the standard of proof for declaring a patent invalid.

Justice Sotomayor disagreed with the various narrow views Microsoft took of prior patent decisions, both at the Supreme Court and in lower courts, which would have set different standards of proof for certain forms of evidence. (Curiously, those forms happened to be the ones Microsoft was trying to use.) She said that even “squint[ing]” the Court couldn’t see qualifications of when clear and convincing would apply as the standard.

Justice Sotomayor also disagreed with Microsoft’s alternative argument that a reduced standard of proof applies to evidence not reviewed by the PTO. She thought that prior cases at the Court and elsewhere had consistently at most concluded that evidence reviewed by the PTO could be deemed to have “more weight” than evidence not seen by it.

Finally, Justice Sotomayor addressed the competing policy arguments of both parties: “We find ourselves in no position to judge the comparative force of these policy arguments.” Instead she said the ball was in Congress’s court: if a different standard of proof was to apply, it was up to Congress to enact it.

Justice Breyer’s concurrence

Justice Breyer, joined by Justices Scalia and Alito, wrote separately to emphasize that the clear and convincing standard of proof applied only to questions of fact, not to questions of law. What’s the difference? A jury will decide the facts of a case, but it won’t decide what the nature of the legal issues are in it, or how those issues map onto the facts. Those legal issues are determined by judges, consistent with statutory and common law, at least partly to ensure consistency in application. Quoting from Breyer’s concurrence (citations omitted) will probably illuminate the difference better than I can summarize it (or at least illuminate no worse):

Many claims of invalidity rest, however, not upon factual disputes, but upon how the law applies to facts as given. Do the given facts show that the product was previously “in public use”? Do they show that the invention was “nove[l]” and that it was “non-obvious”? Do they show that the patent applicant described his claims properly? Where the ultimate question of patent validity turns on the correct answer to legal questions—what these subsidiary legal standards mean or how they apply to the facts as given—today’s strict standard of proof has no application.

Justice Thomas’s concurrence in the judgment

Justice Thomas in his opinion agreed with the result, but he didn’t agree with the reasoning used to reach it. Unlike the other justices, he thought that when Congress said a patent should be “presumed valid”, that did not clearly indicate to judges that Congress intended to codify the clear and convincing standard. But since Congress had not specified a standard of proof, Justice Thomas concluded that the common law rule from Justice Cardozo in RCA applied. So in the end Justice Thomas held that the standard of proof of invalidity was clear and convincing evidence, but he reached it in a different manner.

The outcome

On the face of it, Microsoft losing here means that if they want to avoid a $300 million judgment, they’re going to need to try another argument in the lower courts. But since they’ve already gone through once, they’re mostly limited to whatever arguments they’ve already made, and preserved to be argued further. I don’t know how many that is, but at this point I’m guessing it’s pretty small. So Microsoft is likely out $300 million at this point, plus a bunch more for the legal costs of litigating this matter for as long, and as far, as they did.

Thoughts

This was another fun case to follow, although unlike Tapia it was much harder to follow, and it required more knowledge of the surrounding law to really understand it. Policy-wise, I tend to think it might be better if patents were easier to overturn. Thus for that reason I think a lower standard of proof might be a better thing, although it’s hard to be sure if such a change wouldn’t have other adverse effects negating that benefit. But as far as the actual law goes, and not what I wish (however uncertainly) might be the case, Microsoft seemed maybe to be stretching a little. (Maybe. It was hard to be sure given the extent of my experience with any of the relevant laws, cases, &c.) Looking at the opinions in retrospect, that intuition seems to have been right.

As far as the opinions go, I find something to like in all of them, to some degree or another. The “clear and cogent” language in the Cardozo opinion did seem fairly clear in explaining a standard of proof, if one assumed Microsoft’s narrow read of the conditions when it applied to be a stretch. All the justices agreed on that. Breyer’s opinion distinguishing questions of fact and law seemed pretty smart, too: given how complex this area of law seemed just trying to read up for one case, probably nobody would be very happy if questions of law got lumped in with questions of fact for juries. And I liked the way Justice Sotomayor brushed off all of the policy arguments both sides made (arguments so lopsidely unbalanced and cherry-picked that relying on either completely would be destructive to the ends of the patent system). Ideally courts should merely interpret the law, not make policy or choose amongst policies, and the legislative and executive branches should decide policy.

But Justice Thomas’s opinion, lumped in with the parts of Justice Sotomayor’s opinion with which he agreed, seems like the best reading to me, at least based on what I (think I) know. I didn’t really think the words “shall be presumed valid” clearly referred to a particular standard of proof such that they could be a term of art, as all the justices but Thomas would have. At this point, assuming I understand how the law works correctly in the absence of legislative action, reverting to the state of the matter as it was before — that is, Justice Cardozo’s position — seems the right move to me.

Again, that’s just how I’m reading the law. It’s not really what I want in the patent system, which I think could use a good number of changes to adapt to the modern world.

It’s also worth noting — again — that this case, too, was unanimous. I was a little surprised that both cases turned out that way, as my half-informed readings had made me think neither case was quite that straightforward. Then again, the Supreme Court never really gets easy cases, yet even still they’re frequently unanimous. So I shouldn’t be too surprised even in these particular cases.

Conclusion

If you haven’t done it already, I’d recommend taking a look at the actual opinions in these cases. Law has this stigma of being inscrutable. In various areas of law, it doubtless is just that. But in areas not densely technical, legal opinions (particularly higher-court opinions) can be surprisingly readable (once you condition yourself to skip over all the inline citations). Both cases weren’t so densely technical that an intelligent reader couldn’t follow them. Indeed, I’d say they were generally fairly readable. Give it a shot: you might be surprised what you can learn reading the occasional legal opinion. And when a news story breaks, you’ll get a much less colored view of it if you read it from the source, rather than merely read coverage of it.

Reading the tea leaves

In some cases it can be reasonably obvious which way the Supreme Court justices lean. Oral argument and questioning in United States v. Stevens and District of Columbia v. Heller, for example, left most observers fairly certain which way the ultimate opinion would rule.

In other cases the future is much more murky. This was the case for both Tapia v. United States and Microsoft v. i4i Limited Partnership, at least in my understanding of the arguments.

In the case of Tapia, I’m only really sure of Justice Scalia’s vote. Justice Sotomayor seemed to lean pretty clearly one direction, but I have no idea if she was merely feeling out the waters on her argument, vocally pushing it to her colleagues, or just testing the arguments presented to her. And I couldn’t say how she might respond to the ultimate assertion made by Tapia (rather, the lawyer who argued for her) that “Congress has spoken” and that her desired outcome (supposing she indeed desires it) had been foreclosed.

In the case of Microsoft I have even less to go upon. I consider this the more technically challenging and complex argument, both for me to understand and for the justices to approach. Much of it went over my head. I suspect more justices will be drawn to the argument that Justice Cardozo described the standard of proof in patent cases in his long-ago opinion, simply based on discussion of it during the argument, and the appeal of referring to it under the concept of stare decisis (that is, to generally stand by prior decisions — although when one makes exceptions, as all justices do, is key to applying the doctrine). That doesn’t bode well for Microsoft. (Particularly because with Chief Justice Roberts’s recusal, Microsoft must count to count to five — but i4i only needs to count to four for their win to be upheld. In that case i4i would win the day without the case setting precedent to conclusively establish a standard of proof in patent litigation.) But I could easily be wrong.

Conclusion

I didn’t know exactly what to expect when I decided to make the trip to D.C. to go to an oral argument. Would it be worth the time to endure a mostly sleepless night, to go to arguments I might well not understand, at the expense of time and money it would take to be there? I was pretty sure the answer was yes (after buying the plane ticket to D.C. I was practically giddy with anticipation, and anyone who knows me knows how rarely I get that excited), but I didn’t know for sure.

Looking back, it was well worth the effort. Getting to see the highest court in the country in session, on matters of strong importance, even if I didn’t fully understand all that was discussed, was a priceless experience. And it was all the better by preparation spent reading briefs and considering the arguments presented. (I strongly recommend doing this if you ever consider visiting.) There’s also something to be said for the experience of just sitting in the line to get in, with people of all varieties all waiting to get in, each with as equal a right as yours to be there. (Well, almost equal: there’s that Supreme Court bar line, but they certainly put in the time for it. Although I have to admit I don’t immediately see a rational relationship between that investment of time, money, and labor and the ability to see arguments more easily.)

Anyway: it was definitely worth doing, and if I have reason to be in the area again in the future at an opportune time, I’ll probably try to do it again.

After much line-standing, it was now time to hear actual argument.

For a number of reasons, I’m not going to go into much detail. First, I was pretty sleep-deprived. While I did a reasonable job of concentrating on the arguments, my mind sometimes just wasn’t capable of keeping up with the discussion out of sheer exhaustion. This also means my memory of the arguments is spotty and may have forgotten particular interesting exchanges. Second, while I read petitioner/respondent briefs for both cases, quickly skimmed the United States’s briefs in both, and read a couple amicus briefs of particular interest in Microsoft v. i4i, I’m far from expert in either area of law, so anything I say isn’t going to be the best-informed commentary. Third, if you want full detail, you can always read transcripts and listen to audio (simultaneously, even, thanks to The Oyez Project) from the oral arguments for Tapia v. United States and for Microsoft v. i4i. (Count your blessings: until Chief Justice Roberts joined the Court in 2005, transcripts and audio weren’t released until the end of the term, around the end of June. The Court then started releasing transcripts shortly after argument. And until this year, with very rare exceptions, they didn’t release oral argument audio until the end of the term, whereas now it’s released at the end of the week the argument occurs.)

For the most part, then, I’ll limit discussion to the impressions that stuck with me. Due to lack of time I haven’t gone over the argument transcripts, so this is all raw recollection diluted by a week’s delay in scribing.

General thoughts

The justices sit in high-backed chairs that appear very solemn, rigid, and somber. They are that — when nobody’s sitting in them and testing them. It turns out the chairs recline quite considerably, which diminishes their impressiveness a bit. Justice Thomas and Justice Scalia sit next to each other in this iteration of the Court (the chief justice sits in the center, and the remaining justices alternate sides in order of seniority, so they sat on opposite sides before Justice Kagan joined the Court), and they had a tendency to lean back so far in the chairs that the sense of dignity the chairs conveyed was rather disrupted. Not that it really makes any difference, of course: they are who they are. Still, it was kind of funny to see that the chairs’ veneer of gravitas wasn’t as deep as the angle they reclined.

Justice Thomas is frequently noted as remaining unusually silent on the bench. At the moment he hasn’t spoken in oral argument in just over five years — to counsel making argument, that is. From time to time he and Scalia would turn their chairs and confer with each other, as a lawyer for one side or the other continued his argument, presumably discussing the case being argued. His involvement’s certainly not passive even if that involvement includes none with counsel making an argument. This is about what I’d read various places before going to argument.

Justice Ginsburg is definitely the most frail-looking justice. Even taking into account her physical position, she seemed to look downward at counsel more than appeared to be necessary, and she seemed to hunch over the presumed papers in front of her when asking questions. The other justices had a physical presence of sorts which Justice Ginsburg seemed to lack. (Again, not that it makes any real difference, she being who she is.)

Some people question the importance of oral argument, suggesting that the written briefs settle the issue, the justices have already made up their minds, and so on. Among the usual arguments against this is that the justices use argument as a sounding board to figure out what their fellow justices think and to in a sense passively-aggressively make their cases to each other. If that happened here, I didn’t have the Court-reading experience to see it, or perhaps these cases were simply not clear-cut enough for it to happen in any obvious way.

Tapia v. United States

Justice Sotomayor asked a number of questions, at various points in the argument, which essentially took the point of view of a district court judge tasked with sentencing. Her questions seemed to suggest that she thought judges should have sentencing discretion to consider rehabilitation programs for the defendant’s own good. She was a trial judge at one time, as I recall, and I found it interesting that, for the first time I can recall reading, (dare I say it?) empathy due to her past experience as a trial judge seemed to strongly affect her approach to a case. I also found it interesting because from what I can remember, historically her position has been generally pro-defendant, and (facially) this sympathy for the judge would run counter to that.

Justice Scalia, well known as an advocate of textualism, repeatedly questioned about how a judge could “recognizing that imprisonment is not an appropriate means of promoting correction and rehabilitation” while lengthening a sentence to rehabilitate. As I recall he drew a laugh once for suggesting a judge could “recognize”…and then say he was going to give a longer sentence anyway. He seemed to find the statutory text pretty clear.

I have no strong memories of the questions and answers of the other justices (save Justice Thomas, who asked no questions), although I’m sure on reading the oral argument transcript more memories would spring to mind.

Microsoft v. i4i

The very first thing I noticed about this case was that, in the very brief recess between this case and Tapia, Chief Justice Roberts had disappeared. This was expected: he’d recused himself because, as I recall, his family owns Microsoft stock. At the same time his disappearance was so abrupt that I didn’t even see him leave, despite making half an effort to watch and see it happen (because I was wondering if the other justices would rearrange their seating around Justice Scalia, who acted as chief justice for the argument).

I found this argument more technical and peppered with citations than the previous one, which made it harder to follow. The justices spent some time talking about RCA v. Radio Engineering Laboratories, Inc., the opinion in which Justice Cardozo made perhaps the strongest statements supporting the clear and convincing standard of proof. It was more time than I’d have expected, given the other opinions that could have been discussed as well.

At one point one counsel cited an opinion made by then-Judge Alito when he had been judge in a lower (circuit, I think?) court. I’m not certain, but I suspect it was the same side that had also cited an opinion of his in their brief. I had to read briefs containing bald assertions that previous cases cut in exactly opposite directions, and skeptic that I was at the time, I found this good for a laugh when reading that brief. Justice Alito seemed to think similarly, as he immediately made a self-deprecating comment about how he wasn’t nearly as smart at the time, or something to that effect. However, I don’t remember thinking he was seriously hinting which way he was leaning in doing so.

When oral argument in Microsoft finished (Microsoft’s counsel still had rebuttal time, as I noticed because the white light on the podium had turned on [indicating five minutes remaining] but the red light [indicating no time] had not), my mind felt overwhelmed with what I’d seen and heard. I knew I’d followed less than half of what had been said, yet at the same time I knew I’d basically achieved my goal: to know enough to be dangerous while hearing the arguments.

Next time, reading the Court’s tea leaves.

On the day I visited the Supreme Court, it heard two cases each for an hour: Tapia v. United States concerning sentencing for rehabilitative purposes, and Microsoft v. i4i Limited Partnership concerning the standard of proof in evaluating patents for invalidity.

Tapia v. United States

Background

Alejandra Tapia and a friend were passing through customs while driving from Mexico to the United States. An immigration official noticed they were acting nervously and took a closer look at their car, discovering two illegal immigrants that Tapia was attempting to smuggle into the United States. She was arrested for this but was soon released, subject to court restrictions, while proceedings continued. When she failed to appear in court for a hearing, a warrant was issued for her arrest. After later apprehension Tapia was convicted on counts related to her smuggling of illegal immigrants and for jumping bail.

The judge responsible for sentencing her thought she would benefit from a particular drug treatment program, offered only in certain prisons. In order to get her into that program, he recommended Tapia be sent to a particular prison, and he increased the length of her sentence explicitly to give her the opportunity to take part in that program. In doing so he potentially fell afoul of this statutory language:

The court, in determining whether to impose a term of imprisonment, and, if a term of imprisonment is to be imposed, in determining the length of the term, shall consider the factors set forth in section 3553(a) to the extent that they are applicable, recognizing that imprisonment is not an appropriate means of promoting correction and rehabilitation.

The issue

Before enactment of the law adding this language, the “rehabilitative ideal” as implemented by U.S. law held that isolation from society and prison routine would rehabilitate criminals. Parole boards determined when prisoners were ultimately released based on subjective assessments of the progress of inmates. The Sentencing Reform Act changed the system to be more objective, while still attempting to leave judges discretion to determine individualized sentences.

The sticky wicket is in the phrase, “recognizing that imprisonment is not an appropriate means of promoting correction and rehabilitation”. Does “recognizing” this mean that when a district court sets a length and term of imprisonment, he can’t consider rehabilitation programs in determining the sentence length? If he can’t consider them, then perhaps Tapia’s sentence was wrongly lengthened. On the other hand, section 3553(a) explicitly says, “The court…shall consider…the need for the sentence imposed…to provide the defendant with needed educational or vocational training, medical care, or other correctional treatment in the most effective manner”, which arguably includes drug treatment programs like the one recommended for Tapia here. How should the “recognizing” clause be understood?

Further wrinkles in this particular instance include that Tapia wasn’t sent to the recommended prison (because doing so would place her in too close proximity to another inmate deemed likely to be a bad influence) and that she wasn’t entered into the recommended drug treatment program (as I understand it, because she refused to be enrolled). So the judge in question (more generally, any judge, as I understand it) couldn’t actually have required her to enroll in a treatment program as part of her sentence.

Laws and decisions to consider

This is mostly a case of statutory interpretation of existing laws, so there’s not much in the way of prior Supreme Court decisions to consider. It mostly comes down to how you read the text of the relevant statutes. One statute beyond those above that I find particularly interesting is 28 U.S.C. § 994(k), which states:

The Commission shall insure that the guidelines reflect the inappropriateness of imposing a sentence to a term of imprisonment for the purpose of rehabilitating the defendant or providing the defendant with needed educational or vocational training, medical care, or other correctional treatment.

The guidelines in question specify sentencing ranges from which judges generally can’t depart. Interestingly, this section seems pretty clear that sentencing to a term of imprisonment for the purpose of providing the defendant with access to “correctional treatment” (like a drug treatment program) is not acceptable. If §3582′s text is ambiguous, perhaps this text might clarify it.

Microsoft v. i4i Limited Partnership

Background

In the 1990s i4i received a patent on a method of storing a document whose contents are structured, say, by formatting, nesting, and so on. Broadly speaking, the patent proposes storing document contents separate from document structure to facilitate easier manipulation. (The exact trick is pretty much this: store all the textual contents of the document somewhere, then store a list of pointers into that text with associated semantic meanings, like begin-element or end-element, separately.) The idea apparently works well when used in editors, and Microsoft once (no more, due to this litigation) used it in the custom XML editor built into Word. i4i sued them for doing so, and while Microsoft claimed the patent was invalid, the jury didn’t buy it. Microsoft was required to pay i4i $200 million for infringing their patent, then $40 million for doing so willfully. (Apparently Word developers had seen a presentation from i4i about software practicing the patent, asked questions about how it worked, received marketing material from i4i that mentioned the patent by number, and discussed i4i’s marketing material in email.) With interest the total’s now around $300 million.

The issue

Microsoft pled their case up through the courts, losing at each level. Finally they appealed to the Supreme Court — but because Microsoft’s particular travails aren’t necessarily interesting to the Supreme Court as it can only selectively right wrongs (it reviews around 1% of ten thousand or so appeals every year), Microsoft tried an interesting tack: they challenged the standard of proof required to demonstrate invalidity of the patent. This got the Supreme Court to bite and hear their appeal.

The district court told the jury that Microsoft had to prove invalidity by clear and convincing evidence, a phrase not found in statutory text but rather inferred from 35 U.S.C. § 282. Microsoft argues that when the standard of proof is unspecified, the default (with rare exceptions not relevant here) is a preponderance of the evidence. Clear and convincing evidence basically means the claim is “highly probable”; a preponderance of the evidence basically means the claim is “more likely than not”, or “50% plus one”. It could be much easier for Microsoft to prove invalidity if they only had to get a jury to say that the patent in question was more likely than not (by even the smallest fraction) to be invalid.

(What was Microsoft’s evidence of invalidity, you ask? Here it turns into a mess. i4i sold software called S4 over a year before applying for the patent, and S4 might have implemented the patent in question. If S4 implemented the patent, then an on-sale bar in 35 U.S.C. § 102(b) would invalidate the patent. Microsoft and i4i disagreed about whether S4 practiced the patent. [S4's source code, and presumably S4 itself, was no longer available to be inspected, as S4 had been obsolete before litigation commenced.] Microsoft said S4 implemented the patent, citing the software’s manual, testimony from a former i4i employee, and a letter i4i’s founder wrote to investors indicating that S4 implemented the idea he later patented. i4i’s founders said it didn’t, and one stated in court that the musings in the letter to investors were “an exaggeration, and as I said, it could be said to be a lie” and that the idea was conceived after S4 went on sale. Without S4′s source code Microsoft couldn’t prove invalidity by “clear and convincing evidence”. But it’s quite possible Microsoft could prove it was “more likely than not” that the on-sale bar applied, and that the patent was invalid.

Microsoft also attempted to claim invalidity of the patent by dint of its being obvious through combination of a couple other patents, one of which the examiner who granted i4i’s patent hadn’t seen. Should a patent be “presumed valid” in the language of the statute, and in the lower court’s understanding thus requiring clear and convincing evidence to prove invalid, if the evidence for invalidity wasn’t considered when the patent was granted? Here too could be another avenue of attack under a favorable ruling.)

Laws and decisions to consider

This case, as like Tapia, is mostly a matter of statutory interpretation. But beyond the clauses of patent law at issue there are also a few Supreme Court decisions of relevance.

First, in 1934 in RCA v. Radio Engineering Laboratories, Inc. Justice Cardozo variously described the burden to overcome a patent’s presumption of validity as “clear and cogent evidence”, that the challenger “bears a heavy burden of persuasion, and fails unless his evidence has more than a dubious preponderance”, and that “the countervailing evidence is clear and satisfactory”. (Microsoft distinguishes this language as referring to particulars of that case, specifically that the evidence being tried there had been tried once by one party and found wanting, then in that case was being tried again by an entirely separate party — so “clear and convincing” makes sense only in that rare situation.) Justice Cardozo’s opinion, and its language, precede the statutory text used to justify the clear-and-convincing standard: does the text merely codify that precedent? (Of course, Microsoft and i4i furiously disagree about what the precedent says, and about how courts interpreted that standard.) This case cuts for i4i.

Second we have Grogan v. Garner and Herman & MacLean v. Huddleston. In Grogan the former Justice Stevens, analyzing a case where the statutory text was silent about the standard of proof, determined the standard to be a preponderance of the evidence. In Justice Stevens’s words, “This silence is inconsistent with the view that Congress intended to require a special, heightened standard of proof.” In Huddleston Justice Marshall determined the standard of proof in a similar situation to be a preponderance of the evidence. These cases cut for Microsoft.

Third we have KSR v. Teleflex, a 2007 Supreme Court patent case. In passing in that case, Justice Kennedy wrote in dicta for a unanimous Court that “the rationale underlying the presumption—that the PTO, in its expertise, has approved the claim—seems much diminished” in a case where the PTO hadn’t considered evidence being used to challenge a patent. So perhaps the presumption of validity that Microsoft was challenging shouldn’t apply (or should apply with lesser force) because the PTO didn’t know about the software Microsoft claims implemented the patent. This would cut for Microsoft.

Past this you have the usual arguments for and against patents: Microsoft saying that granting patents too easily is dangerous (an interesting position for them, perhaps), and i4i saying that the patent system stimulates innovation and that invalidating patents hurts that. (Each side’s argument pretty much completely ignoring the patent system’s inherent balancing act between incenting progress and retarding it.) How much weight you want to give this depends to an extent on what sort of partisan you are.

Next time, to the arguments themselves.

I executed my plans and arrived at the Court at approximately 02:45. There was no obvious line, so I wandered around the Court plaza to look for a sign indicating where the line would form. (I knew it wouldn’t simply be on the front steps, alas.) I found none, and I hadn’t yet wandered up to a nearby guard to ask when the first person in line wandered up to confirm my intentions. (Note to anyone wondering exactly where the line forms: it forms on the sidewalk at the south end of the arc of waist-high columns in front of the Court, then trails south along 1st Street NE toward the corner.) Will, a patent attorney from North Carolina, flew up Sunday and arrived at the Court on the last Metro bus shortly before midnight. He too had been uncertain about timing and was playing it safe by arriving early.

Will and I talked off and on until 04:00 when the line truly began to form. (This is recommended both to pass time and to gain friends who can hold your spot in line should you need to leave to use a bathroom or get some food.) At that time a cadre of patent examiners from the Alexandria office arrived on an informal field trip. More visitors followed shortly after, and by 04:15 the line was at 15-20 people.

I’d been warned it could get cold outside, and while it wasn’t cold, later in the night it wasn’t really warm. When I pulled on a Mozilla jacket to fend off the slight chill I quickly discovered:

• Patent examiners hate IE. (And not just IE6, or IE7, or something similarly old: any version of IE. Amy, the patent examiner who told me this, was very emphatic on this point.)
• Patent examiners love Firefox.
• Patent examiners love Firefox extensions.
• Patent examiners are probably the most legitimate tab over-users I’ve encountered. (It makes sense if they’re reference-checking and researching patent applications, considering many sources of information at a time.) One examiner told me he has around 300 tabs open.
• Patent examiners are particularly interested in 64-bit Windows Firefox builds, because when you open 300 tabs you start hitting 32-bit memory limits. One had somehow found a 64-bit Windows build of “Namoroka” (Firefox 3.6) and had been using that for quite some time. I told him that there are unsupported 64-bit Windows builds of Firefox 4, and I mentioned that 64-bit Windows Firefox should happen soon.

The line grew in fits and spurts from there on. By 05:15 the line was up to perhaps thirty; by 05:40 the line had roughly passed the 50-person lower bound on nigh-guaranteed public seating. Subsequent arrivals frequently expressed disbelief at the length of the line, which made me quite glad I’d arrived as early as I did. Shortly before 06:00 a couple groups of us near the front tag-teamed watching our spots and heading to a nearby Starbucks for a bite to eat. I hadn’t planned on doing so, but I took the chance (and the caffeine) when I could. During the walk to and from it I further discovered that patent examiners have a sense of humor about the applications they see and about what they do.

Just after 07:00 the unofficial line moved into position on the plaza, and we settled down again to wait. Shortly after we received numeric cards indicating our place in line, and once that happened we had somewhat more flexibility about what we could do: use the Court restrooms (immaculate gray marble, hands-free toilets and sinks, all imbued with considerable gravitas) and snack area (after passing through security), go elsewhere, and so on, so long as we returned in time to enter the Court.

After a Mountain Dew (more caffeine!) from that snack area and a bit more waiting, we finally began to pass through security. After ascent up stairs to the level of the courtroom, we deposited our things at the coin locker and coat-check area. After one last security screening (the second set of metal detectors to be passed), we were finally in the courtroom.

It wasn’t obvious which seats were reserved for the public and which were reserved for other use. The first ten people in line including me were seated at audience left on movable wooden chairs between two marble columns, just past the area where the Supreme Court press corps sit. The columns partially obscured the view of people behind me (which would seem to indicate that there’s no position in line guaranteeing a good view, unless you attend as a member of the Supreme Court bar), but fortunately I had a good view of all the justices.

At 10:00 the Court was called to order as the audience stood while the justices entered the Court. The first order of business before argument was to process admissions to the Court bar, a briskly formal process except for the brief moment after George Martinez moved that his three sons be admitted, in response to which Chief Justice Roberts, after granting his motion, further wished him congratulations. Sometimes opinions in previous cases are announced before argument, and occasionally a dissenting justice will give a stemwinder from his opinion if he felt strongly enough that the result was wrong, but unfortunately neither happened today. This business complete, the Court proceeded to arguments.

But before I reach the arguments, a deeper look at the cases themselves: next time.

If I was to combine a trip with a visit to family for Easter, I was limited to arguments in April. One sitting stood out as particularly interesting: the April 18 sitting in which Tapia v. United States and Microsoft v. i4i Limited Partnership would be argued. Tapia concerned the permissibility of considering in-prison rehabilitative programs during sentencing — not an issue of particular interest to me. But Microsoft concerned patents, which are certainly relevant to anyone in the software industry. It made a good fit: my weekend was chosen.

Supreme Court oral arguments are open to anyone who arrives “early enough”, which depends on the interest level of the cases being argued. Tapia, as a sentencing case not touching a contentious issue like the death penalty, was low-interest. But “the showcase intellectual property case of the year” might well draw a moderate crowd. And I knew from a Mozillian who’d attended Bilski v. Kappos, the last major patent case before the Court, that arriving at 22:00 the day before a patent case could be good for a spot near the end of public seating. (Huge caveat: the other arguments that day concerned juvenile life imprisonment without possibility of parole.)

Based on one suggestion of 05:00 for “mid-major” cases (which I suspected Microsoft to be) and the effort I was making just to get to D.C., I decided to err heavily on the side of caution by waking up at 1:00. I would take a shower, get dressed in a suit purchased Friday (Visa flagged it as a fraudulent transaction, and I think they were on to something), and walk forty minutes to the Supreme Court. Better to get less sleep but be guaranteed to see the argument than to gamble and lose after making such an effort to even have a chance to see it.

Next time: sitting in line for the arguments.

A few months ago the Green Bag sent me a certificate potentially good for bobbleheads. I live on the west coast, so how was I to redeem it? I’m not crazy enough to fly across the country just for bobbleheads (even Supreme Court bobbleheads!). But if I planned it right, I could combine a trip with one to visit family for Easter, economizing the number of long-distance flights I’d take doing both trips. It was enough justification for me to visit D.C. from April 15 to April 19.

I’m not much of a tourist, so I didn’t visit museums or do much traditional exploration in D.C. (I also planned to work most of Friday and Monday while visiting, a plan mostly-successfully executed from a couple Starbucks.) I caught up with a couple friends (Mozillians may remember Joey Minta of calendar, Thunderbird, and kill-rdf fame, now working at a D.C. law firm) and attempted to catch a game of ultimate on the National Mall that got foreclosed by rain. I also tried to sample area cuisine: Five Guys (NB: they’re in Sunnyvale now!), Founding Farmers, Potbellys (not especially local to D.C., but I’d never seen them before), and Momiji Restaurant (the Asian pear martini was quite tasty).

But most specially, I went to a sitting of the Supreme Court and watched two oral arguments. More on that over the next several days, starting with which cases to attend and when to arrive.

A couple months ago various travels took me within a mile or two of the location where an important Supreme Court case concerning freedom of speech originated. Naturally, I took the opportunity to do a little side trip to see the place and take a few pictures:

The question

Which Supreme Court case was this? (Or, where were these pictures taken?) I’ll give readers a little time before I make a new post giving the answer, unless someone knows or manages to guess the answer.

A few hints

The first hint is barely a hint if you know much about me, but it seems worth mentioning for the benefit of readers who don’t. The second hint may be quite helpful if you’re familiar with well-known First Amendment cases and their holdings. If you’re not, I doubt it will be of much use. The third arguably trivializes the problem of answering the question — but only if you choose to use the business names in the picture while trying to figure out the answer.

• My transportation capabilities in the Bay Area are limited to foot, train, bus, and bike.
• The case in question had, and to an extent still has, special relevance in California.
• If the previous pictures aren’t enough, here’s a completely different view of another area at the same location.

If you’ve paid even the slightest attention to tech news, you know Apple lost an iPhone prototype in a bar in the Bay Area. The finder sold it to Gizmodo for $5000, and Jason Chen of Gizmodo published a story with photos and details of it (and numerous followups) — a juicy tech story. More recently, San Mateo police, pursuant to a warrant, searched Jason Chen’s house, seizing numerous pieces of technology hardware. It thus becomes a juicy law story: trade secrets, protection of journalists’ sources, freedom of speech and the First Amendment, handling of lost or stolen property, lots of possible angles. In a number of them it approaches the clearly-defined boundaries of state and federal laws. Great popcorn fodder all around.

There are enough legal questions to satisfy anyone looking to argue them. There are correct answers and incorrect answers, but for a legal novice like me for whom the unknown unknowns are considerable, it’s far more productive to read others’ arguments than to hazard speculation. Also, some parts are matters of fact potentially for a jury to decide, further imperiling predictions.

Every so often, however, it’s possible to pass into realms where my knowledge is less patchy. One commentator, Peter Scheer of the First Amendment Coalition, thinks the police should have obtained a subpoena rather than a warrant, thereby according a journalist what one might claim is his due “delicacy”. Scheer closes an argument for this course of action by speculating as to why it was not taken:

Perhaps there is a more mundane explanation for the failure to use a subpoena in this case: The DA [district attorney] may have been under intense pressure (from whom? Apple, which reported the phone was stolen?) to act even before he could convene a grand jury to issue a subpoena.

If so, the DA may come to regret his haste: If a court rules he shouldn’t have used a warrant, the DA’s possession of evidence seized from Chen’s home may undermine any possible prosecution of other, more culpable, parties.

Assume arguendo that a court does indeed at some point rule the DA shouldn’t have used a warrant. Scheer then claims the seized evidence “may undermine any possible prosecution” of other parties (most likely referring to the original finder, as there is some question of whether the finder actually made a good-faith effort to return the iPhone prototype to its owner, potentially falling afoul of California law). Is this correct? The exclusionary rule forbids admissibility of evidence gained through unreasonable search or seizure in court, following straightforwardly from Weeks v. United States, 232 U. S. 383 (1914), and the Fourth Amendment. The exclusionary rule is then applicable to the states (and to local government such as San Mateo County) under Mapp v. Ohio, 367 U. S. 643 (1961). If case law stopped here it seems to me Scheer would be right — but it doesn’t. Prior to Mapp the Supreme Court held that:

In order to qualify as a “person aggrieved by an unlawful search and seizure,” [for whom evidence from an illegal search or seizure could be suppressed] one must have been a victim of a search or seizure, one against whom the search was directed, as distinguished from one who claims prejudice only through the use of evidence gathered as a consequence of a search or seizure directed at someone else.

It seems to me that, were the warrant declared invalid, evidence from the search would be suppressed in any potential prosecution of Jason Chen (and maybe Gizmodo — but in Alderman v. United States, 394 U. S. 165 (1968), the Court explicitly declined to apply the exclusionary rule with respect to evidence gained through illegal search of a “coconspirator”; Gizmodo or its other employees might or might not be such, maybe depending on whom a case targeted). However, I don’t see how evidence would be suppressed in the prosecution of anyone else — most particularly of the finder of the prototype.

The question for the la[w]zyweb: would evidence from Jason Chen’s computers, pursuant to an illegal search and seizure, be admissible in court against the original finder of the iPhone prototype? I think it would be admissible, and I think Peter Scheer is mistaken if he is suggesting that it wouldn’t.

Speculation’s fine, but as I already provide the less-educated kind I’d prefer if comments consisted of the more-educated kind.

(25.9; 1067.0 total, 1107.0 to go; +10.9 from pace, -163.0 overall)

The restaurant across the street, Goodie’s, may open early, but I’m not in the mood to get an early start today, particularly with the sprinkly rain outside. Instead I sleep in a bit before picking up groceries and eating at the restaurant. While there I skim through the newspaper, discovering that Obama gave his nominee speech within the last couple days, finally becoming more than the presumptive nominee at the Kabuki dance that is a modern political party’s national convention.

In more interesting, less ceremonial news, I read through an article discussing the Amethyst Initiative: but first, a little background.

It is well-known that the national drinking age in the United States is 21; I will presume without evidence, however, that it is far less known that this is untrue. In reality there is no national drinking age in the United States. Rather, each and every state has determined its own drinking age to be 21. Independent determinations by the states? Evidence of settled scientific investigation? Lobbying by the Sons of the Women’s Christian Temperance Union? None of these reasons are accurate. (Okay, I haven’t really checked that the last possibility didn’t happen; I’ll bet a beer that it didn’t.)

The reason the states have universally adopted a drinking age of 21 is that Congress extorts the states to make 21 the minimum lower bound on the drinking age. In 1984 Congress passed the National Minimum Drinking Age Act, pursuant to which:

The Secretary shall withhold 10 per centum of the amount required to be apportioned to any State under each of sections 104 (b)(1), 104 (b)(3), and 104 (b)(4) of this title on the first day of each fiscal year after the second fiscal year beginning after September 30, 1985, in which the purchase or public possession in such State of any alcoholic beverage by a person who is less than twenty-one years of age is lawful.

23 U. S. C. §158. In plain English any state which has a drinking age under 21 loses 10% of its federal highway funds. Keep the limit at 21 or higher and you get all the money; lower it below that and you lose 10% of it. Congress did not have authority to pass a national drinking age directly (a plausibly-disputable assertion if one looks to Supreme Court precedents rather than to the Constitution itself, but suffice it to say that if Congress could duck the battle it would), so it instead brought about the same end result by coercing the states into doing it on their own; it made them an offer they couldn’t refuse. (This isn’t strictly what happened; a few states held out on immediately modifying their drinking ages, but all eventually caved. Also, Puerto Rico and the Virgin Islands, while not states, are apparently subject to the withholding, but both have a drinking age of 18 and apparently forego that 10% of funds as a result.) Smarmy, eh? This is the reason why, if you desire to see the drinking age changed, you’ll almost certainly have to make a national campaign of it rather than simply a statewide campaign.

Of course, the act raised serious constitutional questions with respect to the Tenth Amendment and the Twenty-First Amendment (the latter being dragged in, perhaps, because its language might plausibly constitute a grant of extra powers to the states). Does the federal government have the power to, to some extent, under certain interpretations of the proposed legislation, enact legislation outside the scope of its constitutionally-enumerated powers through coercion? It’s not a simple question, and it went to the Supreme Court in South Dakota v. Dole. (Also consider that there are other flavors of the question. For example, are fund grants conditioned on use in a specific manner fine, e.g. a fund grant for state police to use for anti-terrorist training? That hypothetical might seem much more reasonable, but how does it differ from the other scenario? Nailing down specific distinguishing factors is never easy, and there are many which might be reasonable to consider.) What’s the right answer to the question? I very much know what I want the answer to be with respect to the particulars of this situation: extorting the states this way is downright smarmy. Of course that doesn’t mean it’s constitutionally impermissible. There are many potential regulations which, properly examined, would be both constitutional and utterly abhorrent. I once thought the case was (unfortunately) correctly decided, but the more I read the less I believe I know enough to answer the question. It’s a research topic I’m going to have to investigate sometime, but here might be one potential starting point, from McCulloch v. Maryland, 17 U. S. 316, 423 (1819):

Should Congress, in the execution of its powers, adopt measures which are prohibited by the Constitution, or should Congress, under the pretext of executing its powers, pass laws for the accomplishment of objects not intrusted to the Government, it would become the painful duty of this tribunal, should a case requiring such a decision come before it, to say that such an act was not the law of the land.

(Hmm, I seem to have forgotten to return to the Amethyst Initiative, haven’t I? Basically, its goal is to start a dialog over whether the current “national” age limit is the best way to achieve the ostensible goal of the legislation: to keep “youthful” minds, and the people around them, safer. It doesn’t advocate a particular solution, but it recognizes that the current national age limit just doesn’t work: it’s too easy to get and consume alcohol if you’re underage. My thoughts on it are roughly these. First: I might have personally benefited from it, insofar as I might have been able to legally drink starting at an earlier age. Given my habits I’m sure the restriction would have made no difference in my safety, or that of others, because I’ve always been careful — not so much out of concern as out of proper enjoyment of the taste. Such enjoyment requires a very slow pace of consumption; it is at least plausible that if I drank at a normal pace, it would be impossible for me to make myself drunk. Further, since I stop after at most two or three glasses, I don’t think there’s much danger of my somehow losing self-control and unintentionally drinking faster. Moreover, I drink somewhat fitfully — usually a bottle or two of wine-equivalent a month. [And that's now that I'm on a steady income; given my spending habits I have great difficulty believing I'd have consumed even that much in college if it were legal to do so.] Further throw in that I don’t own a car and either walk or bike now and in college, over short distances, and the overall danger from me seems negligible compared to the utility of occasionally being able to enjoy a drink. Second: this analysis probably doesn’t apply to very many people, unfortunately. Third: the legal prohibition now really isn’t, it’s wink wink, nudge nudge, say no more. Overall: Changing the current laws would have been an unqualified good for me. It would have also been good, and worse, for others. Given the failure of the current system, both practically and for lack of will to truly enforce it, and the good it prevents for those who are responsible, I think I would be in favor of loosening current restrictions at least to a point where the limit, at the very least for the “well-behaved” by some sort of legal evaluation, is 18. Harsher penalties for 18-20 when problems occur where alcohol is a factor would be fine, perhaps even recommended. It also comes down at least a little to Twenty-Sixth Amendment-style concerns: old enough to be in the army, old enough to vote, old enough to drink. Try reading about the experiences of Vietnam veterans during the war and upon return to America afterward; it’s pretty patently absurd.)

But anyway. With breakfast finished I head back across the street to the Doyle, where I pack up my things and leave minutes before checkout time at 11, saying good-bye to Silver Potato and Cracker and the Honeymooners on the way out. It’s still a little rainy, and neither couple feels like walking in rain. It’s somewhat tempting to stay longer, but I’m not in the right mental state to stop and drop an entire day here right now, particularly since it hasn’t been that much longer than a week since my last zero. Most other people take many more zeroes than I do, probably more than I could really bring myself to take even if I had no constraints on my time; I make up for it by taking longer, more frequent breaks when I’m hiking (hence why most stops at shelters are closer to an hour than to a couple minutes).

From here it’s a short bit of walking through the rest of the town before it’s back up on the ridges again. It’s not much of a walk to get to Cove Mountain Shelter, where I stop briefly to read the register and write a note in it recommending the jambalaya at the Doyle. The shelter has gnawed-smooth boards along the length of its porch, where a person might sit and let legs dangle; it’s clearly a prime spot for porcupines looking for salt to lick up from where sweaty hikers have sat.

Much of today’s hiking is uneventful. I make good time by not stopping much; after Cove Mountain it’s 7.3 miles to the next one with only a single road crossing for distance-estimation. The rain does stop eventually, but things stay generally pretty wet, and I can start to feel my feet rubbing against wet socks in a somewhat unpleasant way. The next shelter, Darlington Shelter, again has a register, and for the first time I see in it an advertisement for the Harpers Ferry Hostel that isn’t premature! Harpers Ferry is perhaps 110 miles south of here, which is a week or so south at a decent clip. It’s close enough now that one could imagine stopping once between here and there for food, then stopping in Harpers Ferry for a night — the key here being that it’s close enough to plan your next stop from here so that you’d reach Harpers Ferry at exactly the right time to stop. I’d have been fine seeing this ad as much as fifty or sixty miles back, too, but that first ad I saw for it perhaps 800 miles back, and all the others I’ve seen between there and here, are just too much.

I’ve gone 11.3 miles so far today at a reasonable clip, but from here south the trail becomes somewhat inhospitable as I pass through the Cumberland Valley. The valley is almost entirely covered with roads and large expanses of farmland, and there’s basically no cover anywhere. In fact camping is actually prohibited from Darlington south for 18.2 miles, except at a single place: Boiling Springs at 14.6 miles south, my target for the day if I don’t stop here (and there’s no way I’m doing that, not this short a day — were I to stop, I might as well have stayed in Duncannon). Back to the trail I go, heading south across the foggy valley.

The valley is definitely a change of pace from the usual ridge hiking to which I’ve become accustomed. Is it a good change? It’s really just a change. Many fewer people would hike the A.T. if it were like this the entire way; on the other hand, the A.T. really isn’t a trail of the wilderness. Anyone who hikes it now is never more than a few days from roads that head toward a grocery store or a place to stay off-trail; days of solitude are possible but uncommon. As one hiker grousedremarked in the register in Cable Gap Shelter in Georgia, no matter where you go you never have to wait long to hear an airplane passing nearby. Day hikers and weekend backpackers are common. The trail isn’t a hike outside of civilization, it’s a hike that skirts or runs amidst it. Today’s valley walk is, all things considered, par for the course — less wild than most parts but not at all unusual except in its sheer length.

Shortly after leaving the shelter I pass by the trailhead for the Tuscarora Trail, a side trail off the A.T. created years back when it was unclear that the official A.T. would remain fully accessible due to its passing over privately-owned land. The A.T. did eventually succeed with its occupied route, but the Tuscarora yet remains as an alternate path to travel between here and its southern end 185 miles south in Shenandoah National Park (if, admittedly, a less maintained path than the A.T. — we’re spoiled). A couple miles further on I pass by what is now the first underpass on the trail, going underneath Pa. 944. Construction finished up just over three months after I passed, so I wasn’t able to use it, but it was substantially excavated at that point. Crossing the road made it abundantly clear why the underpass was being installed: fast-moving traffic and low visibility in both directions due to a hill in one direction and a curve in the road in the other. At the moment this street view of the area shows the now-past construction, as well as overall visibility (traffic speed makes it worse than it might look):

A couple miles past that I hit an ATC work center, an organizing point for, I presume, work trips. I don’t stop for long, but the late start and my breaks today mean it’s past 18:00 by the time I leave to head south again, and I still have 10.6 miles of hiking until I can camp legally. I foresee night hiking in my immediate future; good times.

The rest of the day’s hiking proceeds uneventfully, the last couple hours or so of it in darkness. Once after dark I see what I think is a skunk twenty feet or so up the trail; it turns around and heads the other way down the trail as I (cautiously) follow it. By the time I reach Boiling Springs it’s approaching 22:00; ideally I’d have arrived earlier and gotten something to eat in town, but now it’s late enough that I don’t really feel like walking a couple tenths of a mile off-trail and finding out they’re closed or effectively so. Boiling Springs has an ATC office at which I fill up water bottles from an outside spigot the Companion mentioned, but otherwise I’m in and out of town without stopping, a few tenths of a mile south past some train tracks to a small field with an outhouse (present Memorial Day to Labor Day, so I’m just in under the wire!) where camping’s permitted. The Companion warns that, “The trains do run past here all night long”, and for a moment I’m not sure what it means, until a train passes by. This field is right next to the tracks, and that train’s loud. Here’s hoping I can sleep well with this racket…

August 30

(19.1; 1086.1 total, 1087.9 to go; +4.1 from pace, -158.9 overall)

I’d sort of intended to wake up semi-early to get into town to eat a full meal, but when push comes to shove in the morning I choose sleep over food. Rather, I try to; I must have slept through many trains throughout the night, but the ones passing by this morning are all more than loud enough to prevent me from really enjoying those extra minutes of rest. My feet, which felt a bit waterlogged yesterday and prone to blistering, are feeling about the same today, and my socks didn’t dry out enough overnight to really help matters. None of this bodes well for attempting the Four State Challenge when I reach the border in a few days or so. Still, that’s awhile off; we’ll see what happens before then.

Today’s hiking passes mostly in a blur. My feet continue to be red and irritated all day from excess moisture, but hiking goes reasonably, if slowly. After 10.5 miles, however, it’s time to stop — for ice cream! I’m within spitting distance of the halfway point on the trail, which means it’s time for the Half Gallon Challenge, a thru-hiker tradition involving ice cream whose name explains itself. I get a deli sandwich, a half gallon of ice cream, and a pop before moving on. It’s fairly late in the afternoon, but I know I’m not going to make it to Pine Grove Furnace State Park, my goal for the day, in time to visit the store there to complete the challenge, at least not if I don’t want to wait around until opening time tomorrow. Now a half gallon really isn’t a challenge for me, and I’ve eaten several so far on the trail, but today I make the mistake of eating my sandwich before eating the ice cream, with the result that I’m stuffed way before the ice cream is gone. I eat about two-thirds of it before deciding, regretfully, that I can’t finish it if I’m going to make it to Pine Grove before it gets too dark — an important concern because I’m staying at a hostel by the park, not camping near the trail, and it does have particular hours. As I head back to the trail I notice a newspaper stand, glance at it and walk the other direction, then do a double take: McCain picked who to be his vice presidential candidate? Wow. I’d heard Palin mentioned as a plausible choice but only as a dark horse pick. This could get really interesting, really fast.

The remaining ten miles pass quickly as I finally start to hit a good pace. A mile or so before the park I pass by the trail’s halfway marker:

The marker has been here for several years; it’s not really the halfway point now — the exact point changes from year to year with trail relocations and adjustments — but it’s only a handful of miles off. It’s close to 20:00 now, so I snap a few pictures (all of which turn out about as well as this one, except that this one had the best aim) and hurry on. The park technically closes at dark, so I’m going to be pushing it when I get in. Twenty minutes later or so I reach the park and, after a little stumbling around, find the hostel. The building was part of the Underground Railroad at one time, and it has a hidden basement where passengers would hide — reminds me of some of the spaces above ceilings and between floors in buildings at MIT. (Or so others tell me.) The hostel currently lacks laundry detergent, so it looks like I’m not going to be getting fully clean tonight. I still take a shower and hop into clean clothes for the night, after which I call home, catch up on email and read a few news articles, and head to sleep for the night.

August 31

(17.3; 1103.4 total, 1070.6 to go; +2.3 from pace, -156.6 overall)

It’s up and out this morning after too little sleep, but down the trail I go again. Hiking goes slowly as I pass the current midpoint of the A.T. somewhere a couple miles south of the hostel; I keep feeling like I should stop and doze off for a bit, which I eventually do for an hour or so — it helps. (However, the nap doesn’t do anything for my feet, which are still a bit raw and blister-prone but not so bad that I’m going to consider extra rest.) I’m in better shape after that and start making good time heading south, passing by Tom’s Run Shelter shortly after. I stop to read registers (there are two of them, because this shelter is actually two — each maybe eight feet by eight feet, separated by maybe fifty feet or so) and watch a butterfly move around and fly onto my backpack for a bit. I take several pictures in order to get it mid-flap with its full colors showing; it’s just fast enough and my camera is just slow enough to make this tricky:

I write an entry with some minor election commentary now that I’m caught up on world events, something snarky as I recall, before heading on again. After some uneventful walking I stop again at Birch Run Shelter for a break, just short of ten miles into the day; the shelter here is ridiculous. Imagine a small one-room log cabin, move one of the walls inward far enough to comfortably fit a picnic table, cut a door opening in that wall, then fill the inside with bunk space for eight people (more if people sleep on the floor, and more if you add in the porch). The wood all appears recently treated with polyurethane and other niceties; it’s nothing like most other shelters where the wood is treated, maybe painted, and hauled out to install. I’m now into Potomac Appalachian Trail Club territory, and the shelters here are either insanely awesome or fairly old but well-designed and amazingly well-maintained. It’s good enough that I’ve occasionally heard murmurings from other people that the club is too well-funded — an enviable position to be in, I’m sure. I stop long enough to write an entry in the register, but I need to keep moving both because it’s too early to stop and because it’s clear this shelter and the surrounding camping area are going to be very crowded tonight (there are nearly a dozen people here already, and there are still a few hours left of daylight for hiking).

The rest of the day’s hiking proceeds quickly and purposefully as I keep moving to ensure I have a reasonable amount of daylight at its end. It’s also worth noting that an early arrival means more time to sleep tonight. If I’m to attempt the Four State Challenge I really want to be as rested as possible the day before it, which means I get a lot of sleep tonight, finish the remaining twenty-odd miles to the Pennsylvania-Maryland border tomorrow as quickly as possible, eat a good dinner, and head to sleep. It’s a long walk, and I’m going to aim to be up sometime in the first three hours of the day — ugh — so I can keep to a comfortable pace and so I can visit the ATC office for the traditional mid-hike photo. I arrive in a fair amount of daylight, although the sun is mostly hidden at this point. Quarry Gap Shelters are another crazy spot: two small concrete log-cabin-styled shelters, with a concrete pad between them and a picnic table on it for cooking (and even a tarp that can be hung across the back to break the wind). A pocket on the trail-north shelter’s wall even contains board games for people to play! It’s an old shelter, dating to 1935, but it feels amazingly new and amazingly awesome. The PATC really does have too much time and money on its hands.

This shelter’s not as crowded as Birch Run was, but it’s pretty full. I’m the only thru-hiker, but there are other backpackers and a family there too. The backpackers are two middle-aged-ish women from Massachusetts or Connecticut (and the AMC; they tell me they thru-hiked the A.T. years ago and are just out doing a short trip now. I mention I’m going to attempt the Four State Challenge when they ask about my plans; they say they did it at a much more leisurely pace, perhaps not even breaking twenty miles in a day (and definitely any day even approaching that was a long, restless, painful day). I take advantage of their presence to complain about the lack of signage at the MA-CT border and show my pictures of what I thought was the border. It turns out the bark removal wasn’t supposed to have happened, but they do say the border is intentionally not marked well to discourage campfires just over the border into Connecticut (which forbids campfires at least on the A.T.), close enough that their prohibition doesn’t have much meaning if you can pinpoint the border and put your fire a few feet over it. They attempt to rationalize the campfire prohibition in various ways, but I remain thoroughly unconvinced. So the ground becomes sterile — so what? If you limit it to established campsites and rings only, you’re having the fires in places which have a fairly permanent impact on the area already! A little more at the edge of a well-established existing site would concentrate the impact in one location (a key principle of Leave No Trace). If you limit to rings only, that greatly minimizes the danger of a fire spreading out of control onto neighboring (private) land. Finally, campfires are an intrinsic part of camping. They may be a bit harsh on a few square yards of land (and to a lesser extent on the surrounding couple acres for dead limbs for fuel, but the relevant areas are forested and fuel would be plentiful), but that doesn’t mean the only proper response is a draconian ban on them entirely. Sigh; I’m glad I don’t live near Connecticut trail, even if I never started a campfire while thru-hiking and have difficulty even imagining a situation on the trail where I might.

Kids from a family staying for the night are rather loud, and one of the women has to yell over to the other shelter to ask for quiet, but I read late enough that I don’t have a problem with noise or getting to sleep. It’s 20.5 miles to the border plus whatever I need to do a little bit of resupply: I’m running low on food and snacks, and I want enough to get to Bear’s Den Hostel, which is a dozen miles after the Four State Challenge ends. I plan to do most of that tomorrow to get as close as possible to the border so the most epic day of backpacking I’ve ever considered doesn’t have extra mileage tacked on at the beginning rather than the end. We’ll see what happens and how easy or hard it actually ends up being…

September 1

(19.9; 1123.3 total, 1050.7 to go; +4.9 from pace, -151.7 overall)

Labor Day!

I’ve been a little worried about today being Labor Day, what with my plan to attempt the Four State Challenge tomorrow, as I don’t have the supplies to do it without visiting a grocery store. Will I be able to find a grocery store open today, at the time I reach it? Probably, since Labor Day isn’t one of the huge-name holidays, but it’s still a potential wrinkle, and given that I’m twenty miles from the border I don’t have a lot of margin for error. It’s not far from the shelter to Caledonia State Park, which presumably will have a ranger or two around to ask, so at least I’ll be able to find out early enough in the day to go further out of my way if necessary. I’m betting the store 0.7 miles west of the park will be open, but you never know.

It’s not much of a walk to get to the park, which is full of people picnicking and enjoying the day. A few people at a picnic table say hi and ask about my hiking plans. They tell me they’re from the nearby Waynesboro Senior Center, out for the holiday, and I answer some of their questions in return. They also offer me some of their food, which is mostly standard picnic fare with perhaps a little tilt towards sweets; I eat a couple doughnuts, some fruit salad, and a couple sandwiches made from the fixings they have, and they give me a doughnut or two “for the road”, as it were. They’re very oversupplied for the number of people they have, and they’re more than happy to see it be put to good use. I dally for a good length of time before deciding I really do have to move on, as I have 17 miles or so to get close to the border today and not much time after that to get some sleep before a long day with night hiking to start it. A brief search takes me to the park headquarters, where a ranger confirms that the store down the road is indeed open (although perhaps with slightly curtailed hours, not a problem for me), so I head off to it and resupply. I spend a little time at the store eating the remaining doughnuts and getting a little food and water in me before walking back to the trail to head south again.

The next few miles on the trail pass slowly. I didn’t get very much in the way of supplies since I only need it for a couple days, so it’s really just my normal early-day hiking funk. Some people hike strong in the morning and early part of the day; I’m just the opposite. I stop for a second by the trail to Rocky Mountain Shelters to polish off the rest of a loaf of raisin bread I bought at the store, hoping that maybe a little more delay and a little more energy will help me move faster. It doesn’t, but maybe a mile south I reach something that does — or rather, that something reaches me: the Honeymooners again! There’s nothing like putting someone in front of you on the trail to motivate you to keep hiking — kind of like the mechanical rabbits in dog races. The miles start flying now; we pass by Tumbling Run Shelters without a stop, heading toward Antietam Shelter. I stop at a road crossing to refill on water from a nearby stream, since it sounds like Antietam’s water is off-trail slightly, and continue on working to catch up to the Honeymooners. I do, eventually, at Antietam, where I discover they’re stopping for the day. Deer Lick Shelters aren’t much further down the trail, and they can be reached before dark, but they’re stopping earlier (and why not, since they’re probably at twenty miles for the day now anyway). I mention my intent to complete the Four State Challenge, and they wish me luck. Jessica cringes in horror at the idea, enough that it’s clear it was never in their plans even as a possibility.

A short bit more hiking takes me to Deer Lick Shelters, the last shelter(s) in Pennsylvania and the last paired shelter I remember on the trail. It’s possible I just missed ones further south, but I’m guessing this is some sort of weird Pennsylvania thing. I stop, mention my plans in the register (I hardly expect to spend time doing so in any of the shelters in Maryland tomorrow), and move on. The remaining miles go well as I race dusk to get close enough to the border to stop. Eventually, at what I estimate is about half a mile short of the border, I cross a stream where I refill water bottles and find a small spot that appears perfect for campfires (although I see no burned material to indicate it’s been used as such recently), just as it gets dark. I don’t need much tonight beyond a somewhat comfy place to use a bivy sack, especially since I plan to wake up no more than a couple hours after midnight (!) to start the day’s hiking, and it’ll do fine. Two Knorr dinners later (I figure I need the energy, and it won’t hurt to reduce pack weight a little), it’s off to sleep, I believe after 22:00 — so much for finishing quickly and getting lots of rest before tomorrow. I set my watch alarm for 00:45, put it right next to my head, and pray that I’ll actually wake up to it. Too tired…

September 2

(51.0; 1174.3 total, 999.7 to go; +36.0 from pace, -115.7 overall)

I wake up on time to my alarm, thankfully, and mentally I’m in the right state to not unthinkingly roll over and back to sleep. It is so very tempting to rationally decide to sleep some more — but I could never forgive myself if I didn’t even make an attempt to complete the Four State Challenge the one chance I’ll probably ever have to try. I get up, pack up my sleeping bag and bivy sack, polish off a Pop-Tart, and start hiking south. It’s 1:15, and I am officially insane to be doing this.

I’m still in Pennsylvania now, but not for long — it’s only 0.6 miles to the Mason-Dixon line traditionally dividing South from North and officially dividing Pennsylvania from Maryland. Goodbye and good riddance to Pennsylvania and the Pennsylvania Rocks! I like to see something at a state border, and while what’s here isn’t much, at least there’s something:

The marker’s clearly seen better days, but it’s there and visible: I know exactly where it is and where I am in relation to it. From what I understand it was vandalized even worse shortly after I passed it (assuming my understanding of the description I received doesn’t simply describe the state in the picture), to the point where it wasn’t even there, so I’m glad I got there when there was something to see and note my progress. Shortly after I reach Pen Mar County Park, where I had intended to drop off my meager trash but promptly forget to do so now. There’s a nice view off over the surrounding countryside and its nighttime lights, but I move on without stopping very long.

Shortly after this I discover that the Pennsylvania Rocks! don’t end when you leave Pennsylvania; they actually continue down through much of Maryland, more or less petering out shortly into Virginia. On the plus side, I have to take a nice, relaxing pace over them to avoid stupid injuries, so it’s sort of a nice warmup for the day, since when it’s light I’ll need to keep a consistently good pace if I want to make the ATC office before it closes. Shortly after I discover that, oddly, I’m not the only person out and about now, as I pass a guy camping by a campfire, still awake, who’s awake enough to ask me questions when he sees me coming. This is more than a bit puzzling. First, overnight camping is allowed only at designated sites, so what’s he doing just off the trail here? Second, a campfire, at 2:00? Really? Really?

The trail moves along from here reasonably well. I pass a shelter, stop for water at a small stream I have to cross in a section of trail marked as somewhat fragile due to it passing near a watershed used for drinking water (or so I recall), and pass another shelter as darkness reigns at this early time in the morning. I hike through fields as dawn arrives, leaving a good half hour or so of change from nighttime darkness to visible light on the horizon. By 6:30 it’s bright enough to hike without my head lamp any more.

Now is when things start to get difficult. The trail is still rocky, but the sun’s coming out to make things much easier. Unfortunately, now is when lack of sleep starts to catch up to me, and for the next hour or so my pace is slow, and I don’t feel like I’m moving quickly enough. Moreover, it’s now perhaps 7:15, and I judge myself to be at about 1135 miles overall — but the ATC office that I have to reach by 17:00 is at about 1165 miles. My good pace is three miles an hour, but even if I hike at that pace constantly the rest of the way I wouldn’t make it in time. I feel an insistent temptation to drop the pack for a second, sit down, and lean back for a minute. However, I know this: the moment I do that, I can write off the Four State Challenge. In my current state it probably wouldn’t even take me a minute to fall asleep, and I don’t have the time to spare for a nap even if I could successfully limit myself to some particular duration. By sheer willpower I keep moving and keep hiking. I’ve thought about this since then, and I say this: choosing to keep moving at that point, fighting exhaustion and a seemingly unfeasible schedule, was the most difficult short-term decision I’ve ever made in my life.

Remember that saying, “Never judge a man until you’ve walked a day in his shoes”? (It’s actually “mile” rather than “day”, apparently, but the mangled version is what springs most readily to my mind.) I think if you want to judge me you will have to walk this day — all 51 miles of it, at the same pace I walked it, with the same stops I took. And you will feel pain, and you will feel exhaustion, and you will fight against instinct and against everything you know you want to do to achieve a goal that is of absolutely no intrinsic value whatsoever, and you will keep working towards this meaningless goal for no reason other than because you have chosen to do so. You will hate it, but you will keep doing it, and you would do it the same way if you had the chance to go back in time and do it differently. Then, and only then, can you judge me.

That decision marks a turning point for the entire day. If I’m going to keep moving, and if I’m going to make it to Harpers Ferry and the ATC office before it closes, I must speed up, so I do, probably to three miles an hour or so now. A little further I reach Pine Knob Shelter; I don’t really want to stop, but there’s an extremely convenient privy, so I head over just long enough to use it before moving on (not even visiting the shelter proper; I know what will happen if I stop at it just to look at the register for a second). Now’s when I really start picking up the pace as I pass over I-70, and I start easily making three-plus an hour. I’ve usually mentally kept track of upcoming landmarks in tenths of a mile to gauge progress; I stop doing that now and switch into full-out hiking mode. I pass by the Washington Monument (not that one) without stopping even long enough to see it; the closest I get are glancing at the illustrative signs on the trail up to it, as I head toward the parking lot of the park. I’m hoping to refill on water, but the faucets don’t seem to be running, so it’s keep-on-moving time. From now until Harpers Ferry, I hike almost without stopping, except that about every hour I reach behind me to pull out a large candy bar, snarf it down, pull out my Nalgene, stop only long enough to get a gulp of water without getting it all over myself, then start walking again as I close it up and put it back in place. I do make one exception for Dahlgren Backpack Campground which, bizarrely enough, has a restroom facility with showers (too bad I can’t stop for a night here to use them), both to refill on water and to dump the trash I forgot to dump at Pen Mar. Otherwise it’s continuous hiking, mile after mile, past views and shelters large and small, without stop except for swallows of water — not even for a lunch.

After many rocks and minor elevation changes of perhaps a thousand feet either way, I finally reach what was originally the C&O Canal Towpath, the last real milestone before Harpers Ferry. (The towpath is now a bike/hiking path chiefly due to a protest walk of it by William Douglas, the only Supreme Court Justice to walk the entire Appalachian Trail [in his case by a section-hike that concluded in 1958].) By now it’s somewhere around 15:30-16:00 or so, and with 3.5 miles remaining, and most of that on the flat towpath, I can tentatively assume victory in my attempt to reach the ATC office before it closes. Nevertheless I don’t slow my pace for fear that in doing so I will slow down too much and be unable to increase speed again, and in the end I reach the ATC office by about 16:35. By my estimation, since the turning point around 7:15 or so this morning, I have sustained an average pace of 3.6 miles, and I can feel every bit of that 0.6 miles an hour above the top pace I can comfortably sustain.

I thought I was the only southbounder ahead for a bit, but it turns out I’m not alone at the office — Smoothie is here! I haven’t seen him since Bald Mountain Brook Lean-To, just south of Monson — 1030 miles ago (!). We catch up for a bit — I find out that Colin, now known as Carat, whom I last saw at the same time I last saw Smoothie, unknowingly contracted — wait for it — dysentery. (I thought we were hiking the Appalachian Trail, not The Oregon Trail!) Apparently he went to a hospital three times before it was correctly diagnosed (the first two times they said it was just normal diarrhea, the third time apparently his liver was close to shutting down [!]), and now he’s way back on the trail from taking a couple weeks off from hiking. Smoothie and I aren’t sure how he managed to get it, since he was using Polar-PUR on his water as regularly as I’ve been using it. Speaking of water treatment, Smoothie hasn’t been treating quite so regularly, and he’s managed to get a bit of giardia (read: explosive diarrhea); it’s nothing antibiotics can’t treat, but the infection doesn’t just wear off immediately, so he’s stuck with it for awhile. I dash off a post noting my efforts for the day and try to catch up a little bit on email and such before heading south again. Smoothie heads into town to get something to eat, but it’s too far of a walk for me, so I leave the office later than he does but end up ahead of him on the trail.

From here, to technically complete the challenge, it’s apparently only 1.9 miles. The Companion’s descriptions and the way the trail lies make it a bit confusing, so where I thought I had 5.8 miles to the state line it’s really much less. Still, I’ve set out thinking otherwise, so I’m going to aim for 5.8 miles. Also, hey, why not? If I go only three miles past 5.8 miles I’ll hit the David Lesser Shelter, surely more comfortable than just sleeping some random spot off the trail. Plus, as a bonus, that’ll put me over fifty miles for the day. When will I ever come close to walking that far in a day again? I have to try for it. Meaningless goals: I strive for them.

I expected to be hiking more slowly after such a long break, not to mention after such over-exertion before, and I’m not disappointed, as my pace slows to two, maybe two and a half miles an hour. It slowly turns dark as I keep on hiking, and eventually it hits full nighttime. By 20:00 my hiking is more stumbling than walking; I’m sure anyone who could see me now would think I was drunk. The single line of What Do You Do With a Drunken Sailor that I know (hint: it starts with “what” and ends with “sailor”) plays in my mind as I walk. I pass the road that marks what I originally thought was the border — three miles to go! I continue stumbling south looking for the turnoff to the east that marks the shelter, watching an incredible number of deer standing in the woods watching me pass by. I can see them almost entirely by the reflections in their eyes; is my head lamp the physiological equivalent of headlights to them? At 22:15 I finally reach the shelter; I could walk further, but the next shelter is three miles away. 51 miles ought to be enough for anyone. (The funny thing is, if the next shelter didn’t have a caretaker I probably would have headed for it, to reach the equally empty goal of walking two marathons. ) I’d hoped it would be empty, but it turns out there’s one other person, and when I see he’s awake I hastily apologize and say I’ll be asleep quickly and quietly. Indeed it is so — and thus ends the most epic day of backpacking ever. 51.0! +36.0!

This is the stupidest thing I’ve ever done in my entire life.

September 3

(11.1; 1185.4 total, 988.6 to go; -3.9 from pace, -119.6 overall)

I am understandably in no rush to hike today, so I don’t set my watch alarm and I roll back over when I first wake up. The shelter’s empty; last night’s occupant must have left already (not surprisingly, given that it’s easily 9:30 or 10 by now). I pull out a Pop-Tart and eat it while reading through the register; I make my entry noting 51 miles yesterday (which I end with the sentence “RRRAAAWWRRRR!!!” [letter and symbol repetitions approximate]) and see Rock Layer’s entry noting his 60-mile day. It’s late morning by the time I head out, but it doesn’t matter: I’m not going any farther than Bears Den, a hostel and trail center just adjacent to the trail 11.1 miles south of here. Even if I take six or seven hours I’ll still be there well before 18:00, and even in my partially hobbled state I believe I can do better.

The first stop is a place that would have been a reasonable goal for yesterday if I had kept up my pace from before the ATC office or if I’d stopped for a shorter period of time: Blackburn Trail Center. It’s another PATC facility, and it has two buildings that serve as a summer caretaker’s home plus a smaller bunk house for hikers. The caretaker when I passed through apparently made spaghetti for hikers around dinnertime as well, so it would have been a great place to visit. However, none of that’s possible if you arrive as late as I would have, so in my position it makes much more sense to stop today rather than yesterday. I arrive and wander around the porch for a bit before finding a seat to read the register; the caretaker shows up and offers me a can of generic-brand Dr. Thunder (one guess what it tastes like), which I’m more than willing to accept. I spend a couple hours lazing around, reading and enjoying the pop, before deciding it’s time to move on again. My time isn’t entirely unlimited even if I can afford to move slowly.

South of Blackburn I encounter the “Roller Coaster”, a 13.5 mile section of trail with ten ascents and ten descents, nearly all of them lacking in views. The trail corridor’s particularly narrow here, so there wasn’t much freedom to hike around them or to provide any views. I hear one claim that the “undisclosed location” Cheney went to after 9-11 is very close to here, which would certainly explain the inflexibility if it’s true. None of it’s particularly strenuous, but it’s not really what I had in mind as what I wanted to do after yesterday.

The above photo is from the south end of the Roller Coaster, two days later, positioned for northbound viewing; as usual southbounders get the shaft. Also discovered while taking this picture: my camera has zoom functionality! Who knew? I could have used that when I saw the rattlesnake in Connecticut.

Hiking drags on; I’m not really exhausted so much as just beat up. It’s a good thing today’s a short day. The stop a few tenths of a mile from Bears Den, however, provides some motivation to keep moving: the Horseshoe Curve Restaurant, with the claim of generous portions and a magical creation called “surge” Guinness that ostensibly recreates the effect of Guinness on tap without it actually being on tap. The food and Guinness are both tasty (although it seemed to me the Guinness wasn’t as magical as the shelter register ravings that preceded it claimed it to be), a nice meal before heading the last several tenths of a mile to Bears Den Hostel, perhaps a mile or two from Bluemont, VA.

The Bears Den hostel is run by two hikers, Red Wing and Hopeful, thru-hikers from last year; they also have a daughter/toddler Lydia (nicknamed Hikelet). The basic package deal is $25 for a night’s stay, shower, a cook-it-yourself frozen pizza for dinner (using the upstairs kitchen), and whatever pancakes you’re willing to make for yourself in the morning: a nice package, all around. Smoothie’s here; it sounds like he passed me when I stopped off at Blackburn Trail Center today. There’s also one more hiker whose name I don’t remember. I cook my pizza and pick up a few supplies for the next few days of hiking. It’s only a couple days from here to Shenandoah National Park; the trail there roughly follows the 100ish-mile Skyline Drive and passes near a handful of “waysides” with food and some camping supplies. My plan is to stop at one as my next resupply point, so I don’t need much (besides which I still have a handful of food items left that would get me another day or two anyway). Smoothie and I talk to Red Wing for a bit as we eat dinner before heading back downstairs for the rest of the night. Tonight’s somewhere in the Republican National Convention, and the speeches are all on TV. A few of us sit and watch Palin’s speech, which seemed to be a reasonable political speech as far as I could tell, although at its core it was still a political speech rather than in-depth policy examinations. (At a certain level a well-executed speech is a pleasure to watch, but for the most part I find speeches far less interesting than in-depth policy analyses. It’s a shame speeches get more coverage than policy, although to be sure it’s a rational decision for media organizations.) I take the opportunity to call home after seeing in email that family has decided to book a trip around September 10 and try to catch me wherever I happen to be; we settle on my meeting them at the south end of Shenandoah (roughly 140 miles south of here, which assumes I travel roughly twenty miles a day until then, easily doable). Finally it’s off to sleep for the night — the short day today should hopefully have me in good shape for tomorrow.

At this point I’m now fairly close to the head of the pack of people heading south for extended distances. Consequently, unless I know someone’s immediately in front of me, I’m going to be hiking alone for the most part from now on. I’m going to keep the decent pace I’ve been setting recently, for the most part, but if I feel like I need a break I’m going to stop and take one, and while I will likely push myself to get in decent mileage each day I’m not going to push too hard. These are the names I remember of long-distance hikers (most thru-hikers, some not) who are ahead of me:

• Mango and Grettle, Cubby, Spoon, and Santana (started a week or so earlier than me in June, never met, several days ahead)
• Moose, Duckie, Turbo (briefly met/passed by them around New Hampshire/Vermont, several days ahead)
• Kim-Ki Jun, Korean SOBO (as he names himself in register entries, all of which are signatures more than expressive entries, to be sure, close enough to catch but will take some time)
• Medicine Man (moving fast last I saw him in Vermont, over a week ahead back at 501 Shelter, very unlikely to catch up)
• Flashdance (moving super-fast, way ahead of me, won’t catch up)
• Rock Layer (also super-fast and won’t catch up)
• Solo (name noticed only more recently in registers, but far enough ahead I’m unlikely to see him)
• Jake the Mick (actually section hiking, probably too far ahead to catch up)
• Grace Doolittle and Steph (only seen in registers fairly recently, maybe even after Bears Den actually, a good ways ahead)
• Singer and Land Surfer (flip-floppers I met in New Hampshire, flopped to head south from Harpers Ferry to Springer a few days ago, can catch up if I make the effort)

I’ve seen the first five in registers for quite awhile, and my pace recently is definitely faster than theirs, so I’m sure I’ll see them at some point. Moose, Duckie, and Turbo are in striking distance, but their pace has always been faster than mine by maybe a mile or two a day or so. If I make a concerted effort I may catch up to them, but we’ll see what happens. (Given that I shelter-hop, this makes it harder to make up mileage because you get staggered so easily [when the choice is between 19 miles or 24 and it's 18:00, and you'd been planning on the 24 to make the next day long as well, the easy choice snowballs into more than just five miles of difference pretty easily].) Singer and Land Surfer are well within catching distance; I don’t know their pace, so it’s hard to say when I’ll catch up. I very much doubt I’ll catch up to any of the others given their paces and how much time has passed from their register entries to my reading them. Still, we’ll see: now that I’m up to pace, I can have as much fun trying to catch up, perhaps failing, perhaps not, as I want, without any real physical pain. (It’s worth noting that on September 19, I was -222.4 miles from a 15-mile-a-day pace. A mere fifteen days later, I’m at -119.6 miles from pace [admittedly that did contain a 51-mile day, but even discounting that I've still made up four or five miles a day on average]. That mileage deficit I accumulated in the first 800 miles won’t be a problem.) It’s all mental from here on (not to say that it ever wasn’t just mental) depending on the goals I set and how hard I want to push myself.