Amicus Briefs Research Articles

Warhol’s Lessons for the Publishing Industry

What, if anything, can the publishing industry learn from Andy Warhol Foundation v. Goldsmith? In this Article, I will focus on three key areas that the Warhol Court touched on in its decision—transformativeness, commerciality, and market harm—to see what questions were answered and what questions were left for another day Publishing is, of course, the original copyright industry. The world’s first general copyright law, Great Britain’s Statute of Anne, exclusively protected “books.” The primary focus of the first copyright law in the United States was also books, though the law also covered maps and charts. Today, the U.S. publishing industry is diverse, ranging from major commercial book and journal publishers to small, non-profit, university, and scholarly presses, as well as leading publishers of educational materials and digital learning platforms. Further, it remains vital to society. In 2022, the U.S. book publishing industry generated $28.1 billion in revenue. Beyond its economic contributions, a healthy and independent publishing industry supports the nation’s political, intellectual, and cultural systems. Indeed, the free operation of the publishing industry in a nation cannot be separated from the free exercise of democracy. Copyright continues to serve as a critical legal foundation for the work of publishers. This includes both an appropriately balanced fair use doctrine, which publishers rely on regularly in the course of their work, and a meaningful derivative works right. Helping courts correctly distinguish between the two is what motivated the Association of American Publishers (AAP), the national trade association for U.S. publishers, to file an amicus brief in support of Lynn Goldsmith. AAP’s concern was not that courts were generally not getting it right, at least in cases involving books and other publications. The concern, rather, was that there was a lot of room for the Supreme Court to get things wrong and undermine the derivative works right through an unbalanced conception of the transformativeness doctrine. The amicus brief observed that “[p]ublishers rely on the derivative works right daily, including to justify the use of a license for a film adaptation of a novel, translation of a novel into another language, or recasting of a novel into an ebook or audiobook—all of which are quintessential examples of derivative works.” Publishers in the educational space also rely on the derivative works right to protect supplementary materials, instructor solution manuals, and other adjuncts to the textbooks and course materials they create and distribute. From the perspective of book publishers, then, the Court got it right. It recognized the tension between transformativeness and the derivative works right, explaining that “an overbroad concept of transformative use, one that includes any further purpose, or any different character, would narrow the copyright owner’s exclusive right to create derivative works." If the Court did nothing beyond shining a light on this tension, it would be considered a good outcome for publishers.

Brief of over 300 reproductive health researchers as Amici Curiae in FDA v. Alliance for Hippocratic Medicine.

On January 30, 2024, over 300 researchers filed an amicus brief in FDA v. Alliance for Hippocratic Medicine, a United States (US) Supreme Court case that could have severely impacted access to mifepristone, one of the two drugs commonly used in medication abortion. The researchers summarize the legal challenges to the US Food and Drug Administration's (FDA's) original approval of mifepristone in 2000 and its 2016 and 2021 decisions modifying mifepristone's Risk Evaluation and Mitigation Strategy (REMS) Program and label, the responses from the FDA and drug manufacturer to the challenges, and the potential implications of the Court's decision on access to mifepristone in the US. The researchers detail how the FDA relied on a robust scientific record analyzing tens of thousands of patient experiences that conclusively demonstrated the safety and effectiveness of the changes to the mifepristone REMS Program and label and urge the Supreme Court to rely on the clear scientific record and preserve access to mifepristone without reimposing restrictions. What follows is a reprint of this brief.

THE NARROW CONFINES OF INSTITUTIONAL ACTIVISM: THE U.S. SUPREME COURT, ABORTION, AND AMICUS CURIAE BRIEFS

Abortion disputes routinely occur in the judicial realm. Before the Supreme Court, from Roe to Dobbs, both reproductive rights and antiabortion movement groups and their allies engaged in institutional activism, filing amicus curiae (or friend-of-the-court) briefs to influence case outcomes. The number of such briefs has increased substantially over time. Yet few movement researchers investigate this form of institutional activism. We examine amicus briefs in over forty abortion cases from 1971 to 2022, discerning which amicus filers and frames influence justice voting, including for the pivotal moderate justices. We situate our work in resource mobilization, professional status, and framing theorizing, concluding that amicus briefs significantly shape judicial outcomes in abortion cases. However, our results show effective amicus strategies confront a narrow set of opportunities for judicial influence. Unsurprisingly, the Supreme Court battle over reproductive rights is heavily shaped by justice ideology, with filer and framing approaches—when they are influential—impacting mainly moderate justices.

“My thinking has changed but beliefs have not”: Motivated reasoning in learning to teach abortion

ABSTRACT In the wake of the overturning of Roe v. Wade, social studies education has remained startlingly silent on the topic of abortion. In this design-based research study, we present a qualitative analysis of how preservice secondary social studies teachers made sense of evidence and how they learned about abortion in a mixed-reality teaching simulation built around pedagogies of practice on facilitating controversial issue discussions. Drawing on political psychology and motivated reasoning, we analyzed participants’ engagement with amicus briefs in Dobbs v. Jackson and their thinking about evidence and the issue itself. We found participants generally made sense of the documents in ways consistent with principles of motivated reasoning and the primacy of emotions in evidence evaluation. We analyze shifts in participants’ thinking and conceptual understanding about abortion as a result of their participation, including distinctions and connections drawn between thinking, believing, and learning. Our analysis suggests that even those with intransigent opinions can learn about abortion, that evidence and evidence evaluation are more complicated and nuanced than the literature often suggests, and that emotion plays an integral role in evaluation and argumentation. We conclude by arguing that abortion cannot remain in the proverbial shadows in social studies.

The Rhetoric of Abortion in Amicus Briefs

The Rhetoric of Abortion in Amicus Briefs

Amicus brief of the center for taxpayer rights, the community tax law project, the UC Hastings low-income taxpayer clinic and the Villanova Federal Tax Clinic in support of the petitioner (no.12982-20)

Amicus brief of the center for taxpayer rights, the community tax law project, the UC Hastings low-income taxpayer clinic and the Villanova Federal Tax Clinic in support of the petitioner (no.12982-20)

Combating Scientific Disinformation on Gender-Affirming Care.

Scientific disinformation is false and misleading information that is used intentionally by legal and political actors to sway public opinion and oppose facts. In recent years, disinformation has become a tool for authorities to limit gender-affirming health care (GAC) for transgender and gender-expansive youth who experience gender dysphoria. Existing modes of expert intervention in health policy may not be sufficient to match the pace of these quickly unfolding health care bans. A cross-disciplinary team of academics in medicine, psychology, and law assembled to challenge scientific disinformation on GAC with 2 rapid-response rebuttal reports. Reports were produced in 3 to 10 weeks after the passage of GAC bans in Texas, Alabama, and Florida in 2022. They were posted online to facilitate dissemination and engage litigators, judges, policy experts, advocates, parents, and others. The team's efforts complemented public statements by medical societies and lawsuits brought by national LGBTQ litigators. The team's reports were cited in legal challenges to GAC bans in Texas, Alabama, and Florida. The team also filed amicus briefs for direct consideration by the courts and public comments to health care agencies in Florida. The reports received coverage in local and national media outlets in broadcast and print media. This advocacy case study describes the process used to challenge disinformation about GAC with rapid-response rebuttal reports, as well as the impact of this work and associated challenges. In an increasingly polarized political climate, this process may be adapted to other areas of health policy in which scientific disinformation takes root.

The Unusual Story of the Pocket Veto Case, 1926–1929 by Jonathan Lurie

This meticulously researched and engaging book unravels the complex skein of cases in which the U.S. Supreme Court and lower federal courts have interpreted the scope of the so-called “pocket veto,” which permits the president to disapprove a bill by not signing it or by returning it when Congress is not in session. Lurie uses these cases as a prism through which to explore “ongoing legal issues concerning separation of powers—a never-ending source of constitutional friction” (151–152). The book’s title is unduly modest because nearly one-third of the book explores cases between 1936 and 1987.Lurie focuses on Okanogan Tribe et al. v. United States (1929), in which the Court held that a bill does not become law if a president is unable to return it to Congress because Congress is not in session, even if a Congress has not permanently adjourned. Although the Court’s decision addressed only the pocket-veto issue, the case itself involved claims against the federal government for more than $13 million by six indigenous tribes in the Northwest. After Congress voted by acclamation in 1926 to authorize the tribes to sue the government in the U.S. Court of Claims, the ever-frugal President Coolidge exercised his pocket veto to kill the legislation. The attorney for the tribes, William S. Lewis, contended that the bill had become law because there had been no final adjournment of Congress. Lewis insisted that it was unfair to allow the president to veto legislation in a way that prevented Congress from overturning his veto, an argument echoed in an amicus brief by Rep. Hatton W. Sumners, the powerful chair of the House Judiciary Committee. In his decision for the Court, Chief Justice Charles Evans Hughes relied heavily upon precedent; presidents since James Madison in 1812 had killed legislation by refusing to sign it during intra-session recesses. One of Lurie’s themes is the broader question of the extent to which courts should elevate precedent at the relative expense of an analysis of the text and structure of the Constitution and consideration of public policy.Lurie also provides a detailed account of a later decision, Wright v. United States (1938), in which the Supreme Court modified Okanogan Tribe by holding that the president cannot kill a bill during a congressional recess if the house in which the bill originated has appointed an officer to receive his veto message. He carries the story forward into the 1970s and 1980s, when lower-court decisions further delineated the circumstances under which presidents could issue pocket vetoes.In telling his story, Lurie deftly leads readers through mazes of primary sources—including committee hearings, motions before various courts, hearings, re-hearings, briefs, memoranda, and judicial decisions—which culminated in various judicial decisions, particularly Okanogan Tribe. Even though the Court never adjudicated the claims of the tribes, the book provides an interesting and extended discussion of their grievances and laments the irony that these grievances ultimately were never addressed, much less remedied, in the morass of litigation about the pocket veto.To place the pocket veto cases in context, Lurie also provides a comprehensive history, almost a book within a book, about the creation of the Court of Claims, which was designed to replace haphazard congressional review of claims against the federal government. Lurie explores the Court’s formation in 1855 and the subsequent expansion of its jurisdiction, including 1881 legislation permitting it to adjudicate claims by indigenous tribes if Congress authorized such litigation.Lurie’s book is particularly important because Okanogan Tribe and other pocket veto cases have received virtually no other attention from scholars. This crisp, concise, and comprehensive book should become the standard authority for any historical study of the pocket veto. It also makes a significant contribution to the literature about the separation of powers.

Equal Protection in Dobbs and Beyond: How States Protect Life Inside and Outside of the Abortion Context

In two paragraphs at the beginning of Dobbs v. Jackson Women’s Health Organization, the Supreme Court rejected the Equal Protection Clause as an alternative ground for the abortion right. As the parties had not asserted an equal protection claim on which the Court could rule, Justice Alito cited an amicus brief we co-authored demonstrating that Mississippi’s abortion ban violated the Equal Protection Clause, and, in dicta, stated that precedents foreclosed the brief’s arguments. Yet, Justice Alito did not address a single equal protection case or argument on which the brief relied. Instead, he cited Geduldig v. Aiello, a 1974 case decided before the Court extended heightened scrutiny to sex-based state action—a case our brief shows has been superseded by United States v. Virginia and Nevada Department of Human Resources v. Hibbs. Justice Alito’s claim to address equal protection precedents without discussing any of these decisions suggests an unwillingness to recognize the last half century of sex equality law—a spirit that finds many forms of expression in the opinion’s due process analysis.
 Equality challenges to abortion bans preceded Roe, and will continue in courts and politics long after Dobbs v. Jackson Women’s Health Organization. In this Article we discuss our amicus brief in Dobbs, demonstrating that Mississippi’s ban on abortions after fifteen weeks violates the Fourteenth Amendment’s Equal Protection Clause, and show how its equality-based arguments open up crucial conversations that extend far beyond abortion.
 Our brief shows how the canonical equal protection cases United States v. Virginia and Nevada Department of Human Resources v. Hibbs extend to the regulation of pregnancy, providing an independent constitutional basis for abortion rights. As we show, abortion bans classify by sex. Equal protection requires the government to justify this discrimination: to explain why it could not employ less restrictive means to achieve its ends, especially when using discriminatory means perpetuates historic forms of group-based harm. Mississippi decided to ban abortion, choosing sex-based and coercive means to protect health and life; at the same time the state consistently refused to enact safety-net policies that offered inclusive, noncoercive means to achieve the same health- and life-protective ends.
 Our brief asks: could the state have pursued these same life- and healthprotective ends with more inclusive, less coercive strategies? This inquiry has ramifications in courts, in legislatures, and in the court of public opinion. Equal protection focuses the inquiry on how gender, race, and class may distort decisions about protecting life and health, within and outside the abortion context. There are many forms of equal protection argument, and this family of arguments can play a role in congressional and executive enforcement of constitutional rights, in the enforcement of equality provisions of state constitutions, and in ongoing debate about the proper shape of family life in our constitutional democracy. Equal protection may also have the power to forge new coalitions as it asks hard questions about the kinds of laws that protect the health and life of future generations and that enable families to flourish.

Bishops and Friends: History and Legal Interpretation in RecentAmicus CuriaeBriefs before the Supreme Court

AbstractWith the rise of originalism as an interpretive strategy, history has come to play an increasingly prominent role in the reasoning and methodology of the United States Supreme Court. That development has, by necessity, also shaped the approach to constitutional interpretation taken by other parties, including the large and growing number of groups who file amicus curiae briefs. When the amici in question are religious entities, this article suggests, this “historical turn” at times takes the shape of narrating aspects of a tradition’s sacred history for the benefit of both the Court and other, lay audiences. This article examines three recent amicus briefs by one of the most consistent and prolific religious amici, the United States Conference of Catholic Bishops. Across these briefs, this author traces the construction and deployment of history—both Catholic and American—as a middle term for negotiating the relationship between the US Constitution and its interpretation, on the one hand, and the interests and priorities of the religious tradition, on the other.

Asian American, Native Hawaiian, and Pacific Islander Health.

Asian American, Native Hawaiian, and Pacific Islander Health.

Fireside Chat on the Asian American, Native Hawaiian, and Pacific Islander Special Edition of the Health Equity Journal Featuring Authors.

Fireside Chat on the Asian American, Native Hawaiian, and Pacific Islander Special Edition of the Health Equity Journal Featuring Authors.

Examining the influence of amicus briefs and patents on information policymaking

This study traces a network of strategic power relations between a Google amicus curiae brief and patent to reveal how elite organizations influence information policymaking. The lens of actor-network theory is applied to the selected cases to trace the complex sociotechnical network of heterogeneous relations (Latour, 1993). A microanalysis reveals how information policymaking is influenced by persuasive information presented in amicus briefs and the technical disclosures described in patent claims of black box technologies (Collins, 2018; Frohmann, 1995). This study is part of a larger, mixed methods research project that analyzes over 4,000 geospatial technology patents to reveal the growing trend of inferred geospatial data production where artificial intelligence is leveraged, to demonstrate that constitutional protections for digital privacy rights must incorporate a privacy model that recognizes anonymous data production and not merely user agency to grant consent.
 Presently, information policy and data privacy laws are interpreted through a lens of inescapability (Tokson, 2020). This lens situates digital privacy rights within a fallible dichotomic premise that assumes clear, perpetual agency to grant or deny consent to access data. Moreover, the implications of Fourth Amendment rights are exemplified in geofence warrants—an investigative technique that searches location history to identify suspects in a geofenced region and time series in the absence of evidence. Geofence warrants have been utilized to conduct sweeping searches that collect user data of innocent people such as protesters, cyclists, and other passersby. This study offers the potential to improve policymaking to protect the rights of datafied citizens.

Trustees Act on AAMC Brief in Harvard Case, Multiple Other Issues

Trustees Act on AAMC Brief in Harvard Case, Multiple Other Issues

A Message from the American Society for Reproductive Medicine President

“ROE V. WADE: OVERTURNED” was the headline in Saturday’s paper. Although we “knew” it was coming after the leaked draft, seeing this, in the proverbial “black and white” of the paper, was startling. During the pandemic, the American Society for Reproductive Medicine (ASRM) joined our obstetrics and gynecology colleagues to submit amicus briefs to safeguard abortion access, to allow telehealth for reproductive health care and the receiving of abortion medications through mail. Many asked: why is ASRM focusing on abortion—it is not our fight—we help to make infants.

Mental health groups, state leaders push to restore Wit decision following reversal

Less than two weeks ago, a whirlwind of activity occurred among advocates and lawmakers around efforts to protect mental health and substance use disorder coverage. The American Psychological Association (APA), the National Association for Behavioral Healthcare, the Federation of American Hospitals, the National Association of Addiction Treatment Providers, and state attorneys general representing Connecticut, Illinois and Rhode Island have all taken action and submitted amicus briefs in order to reverse an overturned ruling in the landmark Wit v. United Behavioral Health (UBH) case.

APA Files Another Amicus Brief in Ongoing Texas Case on Banning Trans Care for Youth

APA Files Another Amicus Brief in Ongoing Texas Case on Banning Trans Care for Youth

Discovery in Aid of Foreign Arbitration Proceedings Unfairly Imposes Tremendous Costs on U.S. Companies

By the time this article is published, the Supreme Court will have heard March 23 arguments in two consolidated cases involving the application of 28 U.S.C. § 1782: ZF Automotive US, Inc. v. Luxshare, Ltd., No. 21‐401 (U.S. Supreme Court docket page, with the parties’ and amicus briefs available at https://bit.ly/3EW1FOp), and AlixPartners, LLC v. Fund for Protection of Investor Rights in Foreign States, No. 21‐518 (original docket filings available at https://bit.ly/3JDufYD, but the case has been consolidated at the ZF Automotive docket page linked above as of the Dec. 10 cert grants).

The Revolving Door in Judicial Politics: Former Clerks and Agenda Setting on the U.S. Supreme Court

We examine the role of former clerks to Supreme Court justices on the Court’s agenda setting process. We find that when a former clerk is the attorney on either a cert petition or an amicus brief, the Court is more likely to hear a case, compared to advocacy by a non-former clerk. To help explain these patterns, we draw on the broader literature on “revolving door” politics. We argue that the most plausible mechanisms are either that former clerks are more effective advocates or that their presence in a case signals its importance to the Court. Alternatively, former clerks may select into cases that the Court is likely to grant. While we cannot definitively disentangle these competing mechanisms, the strong patterns in the data suggest that the importance of the revolving door in judicial politics extends broadly into the domain of agenda setting and is thus worthy of further investigation.

APA’s Government, Policy, and Advocacy Update (February 2022)

Back to table of contents Previous article Next article Government & LegalFull AccessAPA’s Government, Policy, and Advocacy Update (February 2022)Search for more papers by this authorPublished Online:27 Jan 2022https://doi.org/10.1176/appi.pn.2022.2.42Physician Groups Urge Supreme Court to Uphold Vaccination RequirementAPA joined 15 leading medical organizations in an amicus brief urging the Supreme Court to reject challenges to the Occupational Safety and Health Administration’s (OSHA) emergency temporary standard requiring COVID-19 vaccination and testing for large employers. The brief stated that a stay on OSHA’s requirement “would cause severe and irreparable harm to the public interest.” In mid-January, however, the Supreme Court blocked OSHA’s vaccination and testing requirement for large employers but upheld a vaccination mandate for health care workers at facilities that receive funds from the federal government.The brief outlined the grave danger that COVID-19 poses to workplace health, noting that COVID-19 outbreaks have occurred among workers in numerous industries and citing studies that found, for example, that adults who tested positive for COVID-19 were significantly more likely to report going to an office or school setting than adults who tested negative. No arguments against the need for vaccination are medically valid, the brief stated, other than to accommodate a medical contraindication.The amicus brief is posted here.DOL Highlights Parity Enforcement in Regulatory AgendaThe U.S. Department of Labor (DOL) included enforcement of the Mental Health Parity and Addiction Equity Act (MHPAEA) as a top priority in its Fall 2021 Statement of Regulatory Priorities.The statement emphasizes DOL’s commitment to ensuring workers “have access to the resources they need to manage their mental health.” The work of the Employee Benefits Services Administration (EBSA) to implement MHPAEA “will strengthen health enforcement by clarifying plan and issuer obligations, promote compliance, and address amendments to the Act from the Consolidated Appropriations Act of 2021,” according to the statement. The Consolidated Appropriations Act, which included APA’s priority legislation—the Strengthening Behavioral Health Parity Act—gave EBSA new enforcement abilities (Psychiatric News).The introduction to the Biden-Harris administration’s Fall 2021 Regulatory Plan noted that DOL, as well as the departments of Health and Human Services and Treasury, “are considering changes to clarify health insurance plans’ and issuers’ obligations to cover mental health and substance use treatment.”DOL’s Statement of Regulatory Priorities is posted here. The administration’s regulatory plan is posted here.Legislation to Implement VA Zero Suicide Initiative IntroducedIn an effort to reduce the rate of suicide among veterans, Reps. Susie Lee (D-Nev.), Tony Gonzales (R-Texas), Colin Allred (D-Texas), and Anthony Gonzalez (R-Ohio) introduced the VA Zero Suicide Demonstration Project Act (HR 6273).The APA-supported bill would implement the Zero Suicide Initiative at five VA medical centers. The initiative was founded by the Henry Ford Health Care System. According to the Henry Ford website, the goal of zero suicides was implemented in 2001 and led to an 18-month stretch without a suicide death from 2009 to 2010. This was “a statistically relevant decrease in suicide rates within Henry Ford from its inception,” the website states.“By implementing Zero Suicide pilot programs at five VA medical centers across the country, the legislation would increase access to safer and concurrent suicide care,” said APA CEO and Medical Director Saul Levin, M.D., M.P.A., in a statement. “Bringing the Zero Suicide model of care to our veterans will help foster a cultural shift toward comprehensive suicide treatment and represents an important step in our ongoing effort to give those who defend our country the support and resources they deserve.”Information about the bill is posted here. The legislation is posted here. ■ ISSUES NewArchived