Wednesday, August 12, 2009

Division of Oral Argument at Supreme Court

The docket for Reed Elsevier v. Muchnick now shows that Solicitor General Elena Kagan has filed a motion asking the Supreme Court for leave to participate as an amicus curiae ("friend of the court") in the October 7 oral argument.

This is an opportunity for me to explain the breakdown of the oral argument as best I can. If I find that I have made a mistake I will quickly correct it.

The solicitor general is the No. 3 official in the Justice Department, and her job is to argue the government's position in cases before the Supreme Court. Kagan already has filed an amicus brief supporting the position of the "petitioners" (the publisher-defendants in the freelance writers' copyright class-action settlement). That position calls for the justices to overturn the spontaneous ruling by the Second Circuit Court of Appeals that the settlement is invalid because it includes the claims of both registered and unregistered copyrights.

In this case, the "respondents" (the named plaintiffs in the freelance settlement, plus the Muchnick objectors) all agree with the petitioners -- we want the Second Circuit decision reversed, though for different reasons. The petitioners, and those respondents who were parties to the settlement, want the settlement ultimately reinstated. Those respondents who were objectors want the Second Circuit reversed so that we can all go back there and argue the merits of the settlement, on which we disagree.

Since all the petitioning and responding parties are in basic agreement on the specific issue before the Supreme Court, there is no classic conflict. The justices therefore appointed an amicus, Deborah Jones Merritt, an Ohio State law professor, to defend the Second Circuit decision.

On October 7, the case for reversal will be argued, most likely, by Charles Sims of Proskauer Rose, attorney for Reed Elsevier. Solicitor General Kagan has asked for a portion of Sims' time, and such requests are almost always routinely granted.

The case for upholding the Second Circuit ruling will be argued by amicus Merritt. If any time is allotted to either the Muchnick objectors or the named plaintiffs, that time would come out of Merritt's. Such time probably would only address certain technical grounds for possible reversal of the Second Circuit. Whether those grounds will be up for discussion at all on October 7 can't be determined at this point because Merritt's brief defending the Second Circuit has not yet been filed.


Anonymous Anonymous said...

It is my understanding that if the Supreme Court says that the unregistereds can be included, that will be the end of the case and the settlement will be paid out. The objectors have already been heard and because of that, there are no additional appeals opportunities.

2:59 PM  
Blogger Irv Muchnick said...

This poster is mistaken. Both sides in the settlement dispute have asked the Supreme Court to reverse the Second Circuit's jurisdiction ruling. If that happens, the case will return to the Second Circuit for consideration of our objections.

4:25 PM  

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