Amicus Briefs Research Articles

Stirring the Pot: A Response to Rothman’s Right of Publicity

Any commentary on Jennifer Rothman’s terrific book has to begin with a compliment to her extraordinary commitment to the right of publicity. For the uninitiated, her website, Rothman’s Roadmap to the Right of Publicity, provides a treasure trove of information about the right of publicity in each of the fifty states. Professor Rothman has also written several articles and a number of excellent amicus briefs in some of the most important right-of-publicity cases in recent years. Finally, this latest contribution—her book—harnesses this exhaustive research and presents it as a historical narrative that is comprehensive, thoughtful, and readable. This book will serve as required reading for scholars, lawyers, and historians trying to understand the history, foundations, and key attributes of this perplexing area of law. Despite my admiration for Professor Rothman and her work, I view the role of a commentator as stirrer of the pot; so, while I agree with much of what she says in her book and her talk, I am going to focus on three points where I have a somewhat different perspective: first, the relationship between “privacy” and “publicity;” second, the role of alienability; and finally, prognosis and cure—or why the right of publicity is so hard, and how we might restore balance to this unwieldy cause of action.

Immoral or Scandalous Marks: An Empirical Analysis

This article reports the results of a systematic empirical study of how the Patent and Trademark Office has applied trademark law’s prohibition on the registration of immoral or scandalous marks. We conducted this study for an amicus brief we submitted to the U.S. Supreme Court in Iancu v. Brunetti, 139 S. Ct. 782 (Jan. 4, 2019) (No. 18-302). In that case, the Supreme Court is considering whether the immoral-or-scandalous-marks provision runs afoul of the First Amendment’s Free Speech Clause. Our study shows, from multiple vantage points, that the Patent and Trademark Office applies the immoral-or-scandalous prohibition in an arbitrary, inconsistent, and viewpoint-discriminatory matter. On the basis of these empirical findings, we conclude that the bar on the registration of immoral-or-scandalous matter violates the Free Speech Clause because of a lack of fit between the purposes of the provision and the provision as enforced. The Patent and Trademark Office’s inconsistent and arbitrary enforcement also indicates unconstitutional vagueness. This article is based on the brief we submitted.

Storytelling, Leadership, and the Law: Using Amicus Briefs to Understand the Impact of School District Policies and Practices Related to Transgender Student Inclusion

Purpose: In 2017, the U.S. Supreme Court agreed to hear a highly publicized case brought by a transgender student, G.G., who was denied access to the bathroom that corresponds with his gender identity. Ultimately, the Court never heard this case, but the documents submitted to the Court remain a part of the historical record, worthy of examination beyond their legal value. In this study, we analyze the first person accounts presented in the “friend of the court” (amicus) briefs to better understand the human impact of policies and practices related to transgender student inclusion. Method: This research utilizes legal research methods to bound the study design. We draw from legal storytelling, which originates in law, and narrative inquiry, which can be found in educational research. In doing so, we provide a synthesis of all amicus briefs submitted in the G.G. case that include personal, firsthand accounts, stories, and experiences. Findings: Overall, the personal stories highlight the implications of inclusive and noninclusive policies and practices. Where noninclusive policies were in place, individuals shared experiences of bullying, academic harm, medical concerns, and inconsistencies in implementation. On the other hand, inclusive policies were associated with confidence building and academic engagement, and a benefit to all students. Stories also reveal that common fears such as safety or privacy did not materialize in the experiences of individuals represented in the briefs. Implications: Informed by these stories, we present implications for research, policy, and practice. Stories reveal the importance of leadership, communication, and professional development.

The Influence of Unique Information in Briefs on Supreme Court Opinion Content

Using a unique and vast dataset and new measures derived from natural language processing, we investigate the flow of information to the Supreme Court via briefs. Our study provides an opportunity to consider the often-nuanced role of information in policymaking. Building on prior work, we contribute in a number of important ways to our understanding of the influence of information on policy generally and briefs on the Court’s decisions specifically. We consider how the repetition of information can signal policy coalescence across interested groups and individuals, as well as proxy quality and exert a psychological effect. We employ nuanced computational text analytic tools that are new to this line of inquiry to assess the extent to which information in a brief is shared among all briefs and lower court opinions in the case. Using these measures, we investigate the relationship between novel and shared information and the content of Supreme Court opinions. We do so over the entire substantive content of a new dataset of more than 12,000 litigant and amicus briefs filed in U.S. Supreme Court cases from 1988 to 2005. Our results provide new evidence that briefs presenting shared information are more likely to have that information adopted in the Court’s majority opinion, raising interesting implications regarding majoritarianism.

U.S. Supreme Court Amicus Brief of Professor D. Theodore Rave in Support of Appellees, Rucho v. Common Cause, No. 18-422

In Davis v. Bandemer, 478 U.S. 109 (1986), this Court held that political gerrymandering claims are justiciable. A majority of this Court reaffirmed that holding in Vieth v. Jubelirer, 541 U.S. 267 (2004). But in Vieth, several members of this Court raised legitimate concerns about whether the federal courts are well suited to police such an inherently political process as redistricting. Reaffirming the justiciability of political gerrymandering claims and affirming the district court in this case will not inevitably involve the federal courts in supervising every redistricting decision. The purpose of this amicus brief is to explain how the Court can create incentives for states to adopt independent redistricting processes to which the federal courts can safely defer. As this Court, the Framers, and foundational political theory have recognized, elected officials, such as Members of Congress and state legislators, are fiduciaries who have a duty to loyally serve the interests of the people they represent, not their own interests. This commitment to fiduciary government is embedded deep in the constitutional structure. But the process of redistricting is rife with conflicts of interest where incumbent legislators can manipulate the process to entrench themselves and their political allies — a breach of their fiduciary obligation. Courts are no better at reviewing business judgments than political ones. But when faced with the analogous problem of self-dealing directors in corporate law, courts do not just throw up their hands and declare the whole matter nonjusticiable. Instead, corporate law creates a two-track system of judicial review. Decisions made by conflicted fiduciaries are subjected to exacting scrutiny, but corporate law creates a safe harbor for decisions made or ratified through independent processes. When conflicted directors run their decisions through an independent process, the taint of self-dealing is cleansed, and reviewing courts can safely defer to the substantive outcome so long as they ensure that the process was independent. Finding an unconstitutional political gerrymander in this case will not plunge the federal courts ever deeper into the political thicket if this Court creates a safe harbor for redistricting decisions made through independent processes. State legislatures are insufficiently independent from their co-partisans in Congress. But the threat of litigation and skeptical judicial review of districts drawn by conflicted state legislatures will create a powerful incentive for those legislatures to adopt independent processes — like the citizens redistricting commissions in Arizona and California — to engage in the complex and delicate task of redistricting without the temptation to manipulate district lines for partisan entrenchment. Courts can safely defer to the substantive redistricting decisions of these institutions and confine their review to ensuring that the process was fair and independent — a task for which courts are well suited. If, however, the Court decides to overrule Bandemer and Vieth, the Court should limit its holding to congressional gerrymandering and not reach the justiciability of political gerrymandering claims involving state legislative districts. Neither this case nor Lamone v. Benisek, No. 18-726, involves state districts, and the contexts are sufficiently different that the Court should not reach the question here.

Non-Disputing Party Participation in ICSID Disputes: Faux Amici?

This article employs a mixed methodological approach to evaluate non-disputing party (NDP) participation by means of amici curiae submissions in investment disputes settled by the International Centre for the Settlement of Investment Disputes (ICSID). The work presents and analyzes statistics on NDP participation in ICSID cases in order to investigate whether amicus submissions are a suitable vehicle for the incorporation of the views of NDPs, and whether they contribute to the development of international investment law and policy. The article argues that amicus briefs are a welcome addition to the ICSID arbitral process in theory, having contributed to the enhancement of the rule of law in investment arbitration through increased transparency. However, the level of NDP participation that amicus briefs provide within ICSID is minimal, and the extent to which they may affect the final outcome of the case is very much at the discretion of the individual tribunal. In light of this, and recognizing previous research that has noted the potential benefits of amici curiae submissions in dispute settlement processes (investment and otherwise), this article will go on to suggest reforms to enhance the participation of NDPs in ICSID arbitration. This will, in turn: contribute to the development of international investment law and policy; increase its integration with other branches of public international law (namely human rights); and enhance transparency and respect for the rule of law.

A Call for Amicus Briefs as a Means to Influence Special Education Policy: Lessons Learned From Endrew F.

Given the legal nature of special education, a particularly promising avenue for infusing research into practice is through court cases. Recent work has illuminated the influence of amicus briefs in court decisions. An amicus brief is a nonparty brief submitted by a person, group of people, or organization that provides insight and expertise on issues presented in a case. In this exploratory study, we examined how interest groups, through the amicus brief process, used research in a recent Supreme Court case, Endrew F. v. Douglas County School District. The case focused on a fundamental principle at the heart of the Individuals with Disabilities Education Act, the definition of a free appropriate public education, an issue in which researchers, practitioners, and policymakers alike should be interested. Our findings indicate that researchers and research played a limited role in the briefing process. We conclude with a discussion of potential reasons for the lack of research in the briefing process, as well as a call for the field to use amicus briefs as a means to influence special education policy and practice.

The New Legal Landscape for Text Mining and Machine Learning

Individually and collectively, copyrighted works have the potential to generate information that goes far beyond what their individual authors expressed or intended. Various methods of computational and statistical analysis of text — usually referred to as text data mining (“TDM”) or just text mining — can unlock that information. However, because almost every use of TDM involves making copies of the text to be mined, the legality of that copying has become a fraught issue in copyright law in United States and around the world. One of the most fundamental questions for copyright law in the Internet age is whether the protection of the author’s original expression should stand as an obstacle to the generation of insights about that expression. How this question is answered will have a profound influence on the future of research across the sciences and the humanities, and for the development of the next generation of information technology: machine learning and artificial intelligence. This Article consolidates a theory of copyright law should that I have advanced in a series of articles and amicus briefs over the past decade. It explains why applying copyright’s fundamental principles in the context of new technologies necessarily implies that copying expressive works for non-expressive purposes should not be counted as infringement and must be recognized as fair use. The Article shows how that theory was adopted and applied in the recent high-profile test cases, Authors Guild v. HathiTrust and Authors Guild v. Google, and takes stock of the legal context for TDM research in the United States in the aftermath of those decisions. The Article makes important contributions to copyright theory, but is also integrates that theory with a practical assessment various interrelated legal issues that text mining researchers and their supporting institutions must confront if they are to realize the full potential of these technologies. These issues range from the enforceability of website terms of service, the effect of laws prohibiting computer hacking and the circumvention of technological protection measures (i.e., encryption and other digital locks), and cross-border copyright issues.

Brief of <i>Amici Curiae</i> Professor Clark D. Cunningham and Professor Jesse Egbert on Behalf of Neither Party, In Re: Trump, No. 18-2486 (4th Cir. Jan. 29, 2019)

On June 12, 2017, District of Columbia and State of Maryland filed suit in United States District Court for District of Maryland against Donald J. Trump, in his official capacity as President of United States of America. The complaint alleged that President had violated both Emoluments Clause and Foreign Emoluments Clause of Constitution through his continued ownership interest in The Trump International Hotel in Washington, D.C. On September 29, 2017, President filed a Motion to Dismiss, arguing that when Constitution was ratified term had two distinct meanings -- a sense limited to arising from an office or employ and a broad sense meaning benefit, advantage or profit -- and that emolument in Constitution only referred to narrow meaning. The district court denied President's motion, concluding that the term 'emolument' in both Clauses extends to any profit, gain, or advantage of more than de minimis value, received by [the President], directly or indirectly, from foreign, federal, or domestic governments. District of Columbia v. Trump, 315 F. Supp. 3d 875 (D. Md. 2018). On December 20, 2918, Court of Appeals for 4th Circuit granted President's motion to stay district court proceedings, and ordered parties to address not only procedural issues regarding President's mandamus petition but also the underlying issue[] of whether two Emolument Clauses provide plaintiffs with a cause of action. The appeal is currently set for argument on March 19, 2019. On January 29, 2019, Professors Clark Cunningham and Jesse Egbert filed this amicus brief in support of neither party in 4th Circuit, reporting results of research described in their paper Scientific Methods for Analyzing Original Meaning: Corpus Linguistics and Emoluments Clauses, available at SSRN: https://ssrn.com/abstract=3321438. Cunningham and Egbert filed amicus brief to present a different, scientifically-grounded approach for researching original public meaning of emolument. They applied tools of linguistic analysis to newly available big collections encompassing written language in common usage at time of ratification. This data is accessible on public website of Corpus of Founding Era American English (COFEA), which contains in digital form over 95,000 texts created between 1760 and 1799, totaling more than 138,800,000 words. Cunningham and Egbert accessed every text on COFEA in which emolument appeared -- over 2500 examples of actual usage -- and analyzed all of these texts using three different computerized search methods. They found no evidence that emolument had a distinct narrow meaning of arising from an office or employ. All three analyses indicated just opposite: emolument was consistently used and understood as a general and inclusive term. When they embarked on this research project, Cunningham and Egbert had no expectation that results would favor any particular party to this case. Their amicus brief takes no position on merits of President's Petition for Mandamus, and offers no view on affirmance or reversal of District Court's decision denying Petitioner's Motion to Dismiss, nothing that original public meaning may be only one of many factors taken into account when applying a constitutional text to a current issue. Egbert is a professor of applied linguistics who has authored or co-edited three books and more than 60 peer-reviewed publications. Cunningham is a law professor who has written previously about applying linguistics to interpretation of legal texts, including Plain Meaning and Hard Cases, 103 Yale L.J. 1561 (1994); Using Common Sense: A Linguistic Perspective on Judicial Interpretations of 'Use a Firearm,' 73 Wash. U. L.Q. 1159 (1995); and A Linguistic Analysis of Meanings of 'Search' in Fourth Amendment: A Search for Common Sense, 73 Iowa L. Rev. 541 (1988).

Veiled Threats: Color-Blind Frames and Group Threat in Affirmative Action Discourse

AbstractThis research examines the way color-blind rhetorical techniques are used by supporters and opponents in legal documents submitted to the latest U.S. Supreme court case on affirmative action. Eduardo Bonilla-Silva posited that color-blind ideology is the dominant racial ideology in the United States. We focused our critical discourse analysis particularly on the use of color-blind frames as described by Bonilla-Silva. This research also assesses how group threat was used within color-blind frames to activate feelings of racial animosity, a distinction from the color-blind frames that act to minimize race. Drawing on data from 184 amicus briefs submitted for 2013 and 2016 and using critical discourse analysis, we found both supporters and opponents used color-blind frames, but that these frames were more prevalent (and distinctively used) in opponents’ briefs, where we observed all four of Bonilla-Silva’s color-blind frames. We also found the use of threat by opponents to be distinct and prevalent, suggesting that affirmative action was framed as a source of competition that threatened resources held in high regard by white America. We discuss the implications of these findings for the future of affirmative action and make suggestions for future research.

175 Years of Caring: A Celebration

Back to table of contents Previous article Next article From The PresidentFull Access175 Years of Caring: A CelebrationAltha StewartM.D.Altha StewartSearch for more papers by this authorM.D.Published Online:28 Dec 2018https://doi.org/10.1176/appi.pn.2019.1a23In 1844, 13 superintendents of our young country’s institutions for people with mental illness came together for the purpose of improving the lives of the individuals under their care. The founders of what they named the Association of Medical Superintendents of American Institutions for the Insane were proponents of moral treatment—the idea that society should provide psychosocial care in a humane environment. One of the founders, Dr. Thomas Kirkbride, devised an architectural plan used in the building of many asylums for decades to come that featured natural light and abundant fresh air surrounded by spacious landscapes.One hundred and seventy-five years later, the American Psychiatric Association—the flower of that first meeting in 1844—is marking a milestone in its remarkable history. A high point of the year will be a gala at San Francisco City Hall during APA’s 2019 Annual Meeting.The celebration in San Francisco means a lot to me—and not just because it marks the culmination of my presidential year.Remembering our roots is dear to me because I trained in Philadelphia and spent a career doing the kind of work in public mental health systems originally envisioned by the founders of what became APA. Today, there is a renewed emphasis on the social determinants of health—which I have tried to underscore during my presidency—and an understanding that real recovery depends on understanding the social context in which a person lives. I like to think that Thomas Kirkbride would smile on this development. But owning our history also means owning the fact that sometimes we have fallen short of our ideals. “Not everything that is faced can be changed,” James Baldwin famously wrote. “But nothing can be changed that is not faced.” We need to face the fact that racism mars our country’s history from its colonial beginnings and even the history of our profession. One of APA’s founders, Dr. Francis Stribling, insisted there be a Committee on Asylums for Colored Persons, assuring the segregation of treatment by race. In addition, there is no publicly available evidence that in the 1950s APA supported overturning school segregation in the case Brown v. Board of Education. In response to a request by a prominent African-American member, Dr. Charles Prudhomme, to file an amicus brief in the case, he was told to “withdraw from involvement in the case and remain aloof from such a political issue.” Dr. Prudhomme went on to become APA vice president in the 1970s. In May 1969, a group of black psychiatrists led by Dr. Chester Pierce came to a meeting of the APA Board of Trustees demanding that APA acknowledge racism as a mental health problem and work to desegregate all public and private mental health facilities in the United States. Understanding and facing our past can help us shape the future. We have an exciting opportunity to learn more about our history at the Annual Meeting in San Francisco, where APA and the APA Foundation will be sponsoring a special historical scientific program track. The track will include sessions on the history of psychiatry divided into four separate eras. Here are the four historical eras and their faculty chairs: The advent of organized medicine in caring for people with mental illness (colonial times-1844): John Oldham, M.D.The dawn of the modern era: reforms in care and treatment (1844-1944): Jeffrey Geller, M.D., M.P.H.Advancing diagnosis, treatment, and education (1944-present): Carolyn Robinowitz, M.D.Shaping the future of psychiatry: breakthroughs in research and delivery of clinical care (looking ahead): Josh Gordon, M.D., director of the National Institute of Mental Health.Additionally, the history track will include a session on the history of global psychiatry chaired by Dr. Tsuyoshi Akiyama and sessions on the history of psychiatry as related to our minority and underrepresented groups. Those groups are American Indian, Alaska Native, and Native Hawaiian psychiatrists; Asian American psychiatrists; black psychiatrists; Hispanic psychiatrists; IMG psychiatrists; LGBTQ psychiatrists; and women psychiatrists. Look for detailed information in upcoming issues of Psychiatric News.Finally, I would like to suggest that all of us have a stake in the history of our profession and can participate in its preservation. Last year, APA and the APA Foundation opened the Melvin Sabshin, M.D., Library and Archives at APA’s new headquarters in Washington, D.C. I invite you to search your personal archives for historical documents, books, and artifacts that might be worthy of preservation. Information about the library’s acquisition policy can be obtained by emailing [email protected] You can also help support the library through its Adopt-a-Book program.The history of our profession belongs to all of us. I look forward to celebrating it with you! ■ ISSUES NewArchived

Citizens for Responsibility and Ethics in Washington et al. v. FEC (New Models) - Amicus Brief for the D.C. Circuit

At issue in Citizens for Responsibility and Ethics in Washington et al. v. FEC, No. 19-5161 (D.C. Cir.), is whether government may trigger Track 1, political-committee(-like) burdens for a particular organization. Attached is a copyrighted amicus brief that the author filed with the parties' consent, as indicated on page 1, footnote 5. The Supreme Court has applied constitutional scrutiny and established the two-track system under which government may regulate—i.e., require disclosure of—political speech. E.g., Buckley v. Valeo, 424 U.S. 1, 63-64, 79-82 (1976) (per curiam); Randy Elf, The Constitutionality of State Law Triggering Burdens on Political Speech and the Current Circuit Splits, 29 Regent U.L. Rev. 35, 35-37 & nn.1-12 (2016) (“Triggering”). This action does not address Track 2, non-political-committee disclosure requirements. Instead, this action addresses law triggering Track 1, political-committee(-like) burdens. Government may trigger such burdens only for “organizations” that are “under the control of” candidates in their capacities as candidates, or for “organizations” having “the major purpose” under Buckley, 424 U.S. at 79; Triggering at 48 & n.84, and engaging in more than small-scale speech, Sampson v. Buescher, 625 F.3d 1247, 1249, 1251, 1261 (10th Cir. 2010); Triggering at 62-64 & nn.153-54. One method of determining the Buckley major purpose asks whether an organization devotes the majority of its spending to contributions to, or independent expenditures for, candidates or ballot measures, Triggering at 60-61 & nn.147-50, with “independent expenditure” meaning Buckley express advocacy that is not coordinated with a candidate, id. at 36 n.9, 61 n.150, 67 & nn.168-71. No constitutional method of determining the Buckley major purpose includes contributions other than contributions to candidates or ballot measures, or independent spending other than independent expenditures properly understood. Id. at 60-61 & nn.147-50. This excludes contributions to others. This also excludes the appeal-to-vote test. Id. at 60 n.148, 70 & n.184. Indeed, “the appeal-to-vote test—once known as the ‘functional equivalent of express advocacy’—no longer affects whether government may ban, otherwise limit, or regulate speech, and the appeal-to-vote test is vague. It has no place in law.” Id. at 77. The last page of the attached copyrighted brief is a newspaper column by the author. It summarizes Triggering and is cited in Triggering at 85 n.278.

NAMI: Arkansas' work rules trigger health coverage losses, poor outcomes

The federal government's Medicaid work requirements that make employment a condition of eligibility for Medicaid coverage continue to stir up controversy, more recently in Arkansas, which has cut more than 12,000 individuals from the program as a result of not meeting federal work reporting requirements. Mental health advocates are challenging the rule and filed an amicus brief in a Washington, D.C., federal court last month.

Comment of Professor Ryan M. Rodenberg on the Proposed Revisions to the Rules of the Supreme Court of the United States

Supreme Court Rule 33 should be slightly revised beyond the currently proposed amendments to separately account for the particular nature of merits-stage amicus briefs filed in support of neither party. In sum, my proposed revisions would create an additional sub-category under Rule 33 to differentiate — via a unique cover color — amicus briefs that do not support either party. Given that paper remains the official form of filing, creating such a new sub-category would assist the Court by making amicus briefs in support of neither party distinctly recognizable vis-a-vis amicus briefs supporting the petitioner.

Saks Fifth Avenue and Transgender Rights

In September 2014 Leyth Jamal, a transgender woman, filed suit against her employer, luxury retailer Saks Fifth Avenue. Jamal alleged that she experienced harassment from managers and other employees because of her gender identity while employed by Saks, including verbal abuse and threats of violence. At the time she filed suit, no federal, state, or local laws protected transgender employees from discrimination. However, some federal district courts had recently begun to allow such suits on the premise that discrimination based on gender identity was a form of sex discrimination. Other suits and amicus briefs brought by the Equal Employment Opportunity Commission (EEOC) furthered this trend. The EEOC is the federal agency charged with investigating and supporting claims of discrimination under Title VII of the Civil Rights Act of 1964, so district and appellate courts watched the EEOC's position on the application of Title VII. Socio-culturally, many Americans supported transgender rights, even as they voiced anxiety about transgender men in women's bathrooms. This case has students assume the role of a trusted member of the executive team of Hudson's Bay Company, which owns Saks Fifth Avenue. One Friday afternoon in late December 2014, the Hudson's Bay CEO sends an email to his executive team notifying them that he has approved corporate counsel's motion to dismiss Jamal's case based on the argument that transgender people are not a protected class according to Title VII. The motion will be filed in federal court on Monday. The CEO shares that he personally believes it is preposterous for anyone to think that Saks Fifth Avenue is anything but a strong advocate for LGBT rights, but he invites executive team members to call him if they have any concerns. Members of the executive team have a responsibility to consider the broader strategic implications for the company, so students must decide if and how to respond to the CEO.

Platforms in the Spotlight at the FTC Hearings

Over a series of three days, from October 15 to 17, 2018, the Global Antitrust Institute (GAI) hosted the third session of the FTC Hearings on Competition and Consumer Protection in the 21st Century at the Antonin Scalia Law School, George Mason University. After introductory remarks by Scalia Law School Dean Henry Butler and Federal Trade Commissioner Rohit Chopra, the panels broadly focused upon three topics: (1) multisided platforms, (2) nascent/potential competition, and (3) labor policy. The overarching focus of the hearings was clearly multisided platforms, which accounted for seven of the twelve panels. In the wake of the Supreme Court’s ruling in Ohio v. American Express, platforms are rightly the subject of significant attention and discussion ranging from the economic tools and methods to evaluate platforms to the correct legal framework for capturing and shaping that analysis. The economic research on platforms began in earnest fifteen years ago with pioneering work from Evans (2003) and Rochet and Tirole (2003). Much of the important economic learning over the past fifteen years—economic concepts such as cross-group effects, the interrelationship of demand, and the difference between transaction and non-transaction platforms—are becoming part of the antitrust lexicon. Much of the discussion at the hearings mirrored the conversation taking place among academic economists and lawyers, as well as practitioners and courts, focusing upon how to integrate that economic learning into antitrust institutions and doctrine. While the dueling set of amicus briefs for the American Express case indicates there are certainly areas of disagreement, we highlight what we believe emerged throughout the hearings as areas of general consensus in how to assess platforms in an antitrust context.

129 Million Class Members $0, Charities $6.5 Million, Attorneys $2 Million: Are Cy Pres-Only Settlements Fair, Adequate and Reasonable?

This article discusses the Supreme Court appeal in Frank v. Goas, to be argued before the Court on October 31, 2018. This appeal involves a class action settlement with Google, approved by the Ninth Circuit, where the 129 million class members received no compensation, the class action attorneys received $2.125 million in attorney fees, and Google and the class counsel agreed to contribute $6.5 million to be distributed to seven charitable and non-profit organizations as a cy pres resolution of the litigation. The Court will decide whether such cy pres-only awards in settlement classes comport with the Rule 23(e) requirement that such settlements be “fair, adequate, and reasonable.” Class action attorneys will be closely watching the Court’s attention to the issue of cy pres relief in class action settlements. Cy pres provisions have become increasingly prevalent in settlement agreements, raising heightened judicial concern and academic criticism. Notwithstanding the increasing concern, lower courts continue to approve settlement agreements with cy pres provisions, and class action lawyers continue to expand their use. The Frank appeal embodies both the ideal as well as the imperfect vehicle for the Court to address the issue of cy pres relief. The Frank appeal could hardly have embraced a more extreme exemplar of possible cy pres overreaching: a no-compensation class, cy pres-only settlement, with 25% attorney fee. The Court might adopt one of several approaches to addressing the use of cy pres relief in settlement agreements. Radically, the Court could declare cy pres provisions unconstitutional and not sustainable under Rule 23: issuing a categorical ban urged by objector Frank. This outcome would be possible if the Court’s conservative wing endorsed this result. But at least some conservative Justices will recognize that corporate defendants sometimes desire cy pres provisions – as did Google here – and therefore have little interest in a Court-mandated outright ban. A bright-line prohibition on cy pres awards, however, most certainly would not be joined by the Court’s liberal Justices. More likely, however, given the extreme nature of the Google agreement, the Court will probably choose not to throw the proverbial baby out with the bathwater. Thus, it is possible that the Court may disapprove the cy pres-only settlement in the Google litigation, but nonetheless preserve the possibility of cy pres in more limited circumstances. The Court may set forth parameters and rules governing the permissible scope of cy pres relief that acknowledge the concerns raised by the objector, but nonetheless recognize situations where cy pres relief makes sense, as urged by the Respondents and various amici. This compromise position could conceivably earn the endorsement of both liberal and conservative Justices. The complicated role that cy pres relief plays in the class settlement arena is reflected in the interesting array of amicus briefs. Normally, one would expect that the usual cohort of corporate, anti-class action groups to weigh in opposition to cy pres relief. However, corporate defendants sued in consumer class litigation do not always oppose cy pres remediation and frequently coordinate with class counsel to craft cy pres settlements that are to the defendants’ advantage. Google’s hybrid brief, urging that the Court uphold the cy pres settlement while urging the Court to address various class action abuses, captures the complex position of defendants regarding this appeal. On the contrary, the usual array of plaintiff-minded organizations have aligned to ask the Court to uphold the Ninth Circuit’s decision, and not outright ban or restrict cy pres relief, stressing the constructive benefits to society of various cy pres settlements, including support of legal aid entities otherwise publicly underfunded.

The Use of Amicus Briefs

Judicial decisions play an important role in shaping public policy. Recognizing this, interest groups and other entities lobby judges in an attempt to translate their policy preferences into law. One of the primary vehicles for doing so is the amicus curiae brief. Through these legal briefs, amici can attempt to influence judicial outcomes while attending to organizational maintenance concerns. This article examines scholarship on the use of amicus briefs pertaining to five main areas: ( a) why amicus briefs are filed, ( b) who files amicus briefs and in what venues, ( c) the content of amicus briefs, ( d) the influence of amicus briefs, and ( e) normative issues implicated in the amicus practice. In addition to presenting a critical review of the scholarship in these areas, this article also provides suggestions for future research on amicus briefs.

Brief of Professors Sant'Ambrogio and Zimmerman in Support of Complainants Motion to Certify a Class Action in the Federal Maritime Commission

Last year, plaintiffs filed the first damage class action in the Federal Maritime Commission. In this amicus brief, written in support of complainant's motions, we explain the use of aggregate procedures in non-Article III courts, like the Federal Maritime Commission. “Non-article III courts” include both administrative tribunals and legislative courts whose judges lack the tenure and salary protections of Article III of the Constitution. As we show, a wide variety of non-Article III courts have concluded that they can, and should, in appropriate circumstances, aggregate claims under statutory authority that closely resembles the authority Congress has provided to the Federal Maritime Commission. In so doing, this brief makes three points. First, Congress generally grants non-Article III courts broad discretion to craft procedures they deem necessary and appropriate to adjudicate the cases and claims that come before them. Non-Article III courts’ power to develop procedural rules reflects an appropriate and effective division of labor between Congress and administrative tribunals. While Congress creates and defines the jurisdiction of agencies, agencies apply their expertise to determine the procedures best-suited to exercise that jurisdiction. Second, relying on that authority, non-Article III courts employ a wide range of procedures to aggregate cases formally and informally. For example, non-Article III courts have adopted rules that permit joinder, consolidation, and class actions. And even in the absence of a specific rule, non-Article III courts have aggregated particular cases and claims on a case-by-case basis. Aggregating claims on a case-by-case basis may be particularly important to quickly resolve pending claims, while offering tribunals insights that will aid in developing more formal rules in the future. Third, non-Article III courts use aggregation to promote efficiency, consistency, and fairness. Aggregation enables courts to pool information about common and recurring problems efficiently, fosters more consistent outcomes in similar cases than is possible through case-by-case adjudications, and improves access to legal and expert assistance for parties who have limited resources and whose claims may appropriately be pursued through collective mechanisms.

APA Calls on Administration to Defend Patient Protections in ACA

Back to table of contents Previous article Next article Government NewsFull AccessAPA Calls on Administration to Defend Patient Protections in ACALinda RichmondLinda RichmondSearch for more papers by this authorPublished Online:17 Jul 2018https://doi.org/10.1176/appi.pn.2018.7b9AbstractThe Department of Justice deemed the individual mandate to carry health insurance along with key patient protections “unconstitutional,” threatening to gut Obamacare.APA strongly condemned the decision last month by the Trump administration to not defend the patient protections provided in the Affordable Care Act (ACA) in the case Texas v. United States.The unusual decision of the Department of Justice (DOJ) to not defend a U.S. law opens the door to allow insurers in the individual market to deny coverage or raise the premiums for Americans with preexisting conditions or a history of using more health care. Although the precise number is hard to pin down, at least 18 million individuals buy insurance outside of the group market and would be affected by such a change, according to a data analysis by the Kaiser Family Foundation. Moreover, about 130 million Americans have at least one preexisting health condition and could potentially lose coverage or face rate increases.“We strongly condemn the administration’s decision not to defend the patient protections provided in the Affordable Care Act, an established law of the land,” APA President Altha Stewart, M.D., said in a statement. “This is harmful to the health of Americans and is very short-sighted, considering the nation is in the midst of an opioid epidemic and a 30 percent rise in suicide rates. We call upon the administration to reverse this decision and defend the rights of our patients.” The Department of Justice filed a memorandum June 7, advising a U.S. District Court that it would not defend the ACA’s individual mandate to maintain health coverage. Rather, the DOJ found the mandate to be “unconstitutional” as of January 1, 2019. That’s when the Tax Cuts Jobs Act eliminates the ACA’s penalty for individuals who do not carry insurance.In a prior court battle, the Supreme Court had upheld the ACA’s individual mandate, which requires most people to carry minimum essential health insurance, but only in so far as it was a tax provision that yielded at least some revenue for the federal government. But because the Tax Cut Jobs Act eliminates the ACA’s penalty for not carrying insurance starting January 1, it will no longer generate revenue. Thus, the DOJ determined that the individual mandate will no longer be constitutional as of that date. Texas, along with 19 other states, had filed a federal lawsuit in February challenging the individual mandate and other patient protections in the law.At the same time, the DOJ also advised the court to strike down two of the ACA’s key patient protections intended to help individuals purchasing non-group health insurance: “guaranteed issue,” which requires insurers to provide coverage to those with preexisting conditions, and “community rating,” which requires insurers to charge the same premiums regardless of medical history.“The Executive Branch has a longstanding tradition of defending the constitutionality of duly enacted statutes if reasonable arguments can be made in their defense,” Attorney General Jeff Sessions noted in a letter to Congress June 7. Nevertheless, “I have concluded that this is a rare case where the proper course is to forgo defense” of the mandate for individuals to buy insurance, he wrote. Sessions wrote that the decision had been made with the approval of President Trump. APA also teamed up with five other medical organizations representing more than 560,000 physicians and medical students to lobby on the issue. “We strongly urge the Department of Justice to reconsider its decision in Texas v. United States. [We] all seek policy solutions that increase access to affordable health care that provides all individuals, regardless of their gender, race, and health status, reasonable protections against discrimination in coverage and pricing,” they wrote in a June 11 statement.California Attorney General Xavier Becerra formed a coalition with 17 attorneys general to fight to uphold the ACA and is vowing to explore all legal options to defend it. The group filed a motion to intervene in Texas v. United States and became defendants in the case in mid May. A group of patient advocates, medical associations, public health experts, economists, and legal experts also submitted amicus briefs to the court in support of the group.Next, the judge in the case will review the filings and determine whether a hearing is needed in this case. The state of Texas must respond to the democratic state attorney general’s filings this month. ■The DOJ’s brief can be accessed here. APA’s statements are available here. ISSUES NewArchived