Coverage of Yesterday's Supreme Court Argument
I will have more to say later on my own impressions of yesterday's oral argument at the Supreme Court in Reed Elsevier v. Muchnick. (Quickly: Attending the hearing along with my son Jacob, and with attorney Charles Chalmers and his wife Laurel, was an incredible experience. I was struck by the acuity all six justices who posed questions -- including sharp insights from a couple of unexpected sources.)
I also will comment down the road on what happened yesterday at district court in New York: the new target of the Google settlement parties to have a revised deal together next month.
Here are quick links to the Reed Elsevier v. Muchnick coverage I have read:
* Lyle Denniston at SCOTUS Blog: "Analysis: Copyright settlement may be in doubt"
http://www.scotusblog.com/wp/analysis-copyright-settlement-in-doubt/
Excellent.
* Exclusive Rights (a copyright law blog): "Supreme court hears oral arguments in Reed Elsevier"
http://www.exclusiverights.net/2009/10/supreme-court-hears-oral-arguments-in-reed-elsevier/
The author of this post -- presumably attorney Shourin Sen -- was working from the transcript and didn't know at least some of the background, as he wrote: "Justice Sotomayor, who was as an intellectual property practitioner before being appointed to the Southern District of New York, did not ask a question." Sotomayor was not at the hearing -- she had recused herself.
* C.E. Petit at Scrivener's Error: "GBS Update"
http://scrivenerserror.blogspot.com/2009/10/9a07a.html
Petit correctly calls Reed Elsevier v. Muchnick "the elephant in the room."
I also will comment down the road on what happened yesterday at district court in New York: the new target of the Google settlement parties to have a revised deal together next month.
Here are quick links to the Reed Elsevier v. Muchnick coverage I have read:
* Lyle Denniston at SCOTUS Blog: "Analysis: Copyright settlement may be in doubt"
http://www.scotusblog.com/wp/analysis-copyright-settlement-in-doubt/
Excellent.
* Exclusive Rights (a copyright law blog): "Supreme court hears oral arguments in Reed Elsevier"
http://www.exclusiverights.net/2009/10/supreme-court-hears-oral-arguments-in-reed-elsevier/
The author of this post -- presumably attorney Shourin Sen -- was working from the transcript and didn't know at least some of the background, as he wrote: "Justice Sotomayor, who was as an intellectual property practitioner before being appointed to the Southern District of New York, did not ask a question." Sotomayor was not at the hearing -- she had recused herself.
* C.E. Petit at Scrivener's Error: "GBS Update"
http://scrivenerserror.blogspot.com/2009/10/9a07a.html
Petit correctly calls Reed Elsevier v. Muchnick "the elephant in the room."
posted by Irv Muchnick at 10:10 AM
6 Comments:
When do we expect the Justices to render a decision based on yesterday's oral arguements?
Possibly as early as December. Definitely before the term ends in the spring.
If there's a 4-4 split, it will be announced much sooner, since there would be no decision (thus upholding the Second's ruling by default) & thus no time spent writing opinions.
Irv, did you notice that when scotusblog.com posted its analysis yesterday, they referred to the case as Reed Elsevier v. Munchkin?
They fixed it later.
No, Moxie, I did not see the typo with my name. Must have been fixed already. But Lyle Denniston's piece was very good.
My initial impression from reading the transcript (which I did before reading the scotusblog.com analysis) was that their are not 5 justices who are likely to say that this is not jurisdictional.
And thus, would rule in favor of the Second om the rule presented.
After reading it all again: There does appear to be some sentiment that this issue should have been raised pre-settlement & can't be addressed at the appeals stage. So, there could be a decision that, on this technicality, the Second did not act properly with its sua sponte ruling & should proceed with reviewing the Objectors' concerns. But since this issue wasn't addressed in the question that was presented, I don't know how much lattitude the Supreme Court would have to make a ruling in this direction. Irv, perhaps your lawyer could offer an opinion on this?
Also, I think I see why this case needed 9 conferences before cert; likely as many as three divisions on just how the actions of the lower courts should be addressed.
I don't think I can make a responsible guess based on what I saw in oral argument. (For one thing, you never know how important the oral argument is; the questions raised by the justices are really best understood as a conversation among themselves.) I'll say only this: Deborah Jones Merritt, the amicus defending the Second Circuit ruling, was the star of the hearing. Charles Sims, on behalf of lead petitioner-defendant Reed Elsevier, and Assistant Attorney General Ginger Anders got roughed up quite a bit in the questioning by the justices.
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