Solicitor General Research Articles

Did the Solicitor General Hijack the Warhol v. Goldsmith Case?

The main dispute between Lynn Goldsmith and the Andy Warhol Foundation (AWF) between 2017 and 2022 was whether Warhol’s 1984 creation of sixteen works of visual art based on Goldsmith’s photograph of Prince under an artist reference license was fair use or infringement. Even though the trial court and the Second Circuit disagreed about whether these creations were fair use, the Court did not address that dispute at all because it interpreted Goldsmith’s merits brief as having abandoned that claim. This Article considers the influence of the Office of the Solicitor General (OSG)’s brief on the reframing of the Warhol case as only concerning the transformativeness (or not) of a 2016 license granted by the AWF to Condé Nast to the use of one of Warhol’s Prince Series works on the cover of a commemorative magazine. After reviewing the evolution of this copyright litigation and the lower court decisions, this Article speculates about how and why OSG may have chosen to narrow the question presented in the Warhol case and why Goldsmith might have acquiesced in this. The OSG’s reframing of the issue enabled the Court to avoid addressing a largely invisible issue in the Warhol case: the implications of § 103(a) of the 1976 Copyright Act for AWF’s claims of copyright in Warhol’s Prince Series works. Even though the Court only ruled that AWF’s 2016 license grant was nontransformative, the Article suggests that much of the Warhol decision’s dicta is nonetheless likely to influence future fair use analyses. It also considers the viability of AWF’s claim of copyright in the Prince Series and suggests alternative ways the Court could have resolved the Warhol case.

Fair Game or Foul Play: Public Perceptions of Solicitor General Involvement in U.S. Supreme Court Cases

Fair Game or Foul Play: Public Perceptions of Solicitor General Involvement in U.S. Supreme Court Cases

Students for Fair Admissions v. Universities for Division, Exclusion, and Inequity: The Petitions, the Arguments, and the Decision

Students for Fair Admissions v. Harvard (SFFA) will be studied by law students for generations, in much the same way that Bakke and Grutter were studied before. But there is much more to SFFA than the final decisions about Harvard University and the University of North Carolina will reveal. This Article, published for a symposium by the SMU Law Review, focuses on three stages of the litigation: the petitions, the oral arguments, and the decision. Part I recounts the complex procedural history, which began in federal courts in Massachusetts and North Carolina. The Harvard case reached the Supreme Court first, while the UNC case lingered in district court. The Supreme Court called for the views of the Solicitor General. By doing so, the Court could punt the case to the following term, which allowed the UNC case to catch up, and Justice Breyer’s replacement to be confirmed. Both cases would be argued on October 31, 2022. Part II parses the questions asked by all nine Justices during oral argument. Chief Justice Roberts signaled up front that he would rule against the universities. Justice Thomas repeated his charge that arguments in favor of racial preferences mirror the arguments made by segregationists. Justice Alito worried about discrimination against Asian-American applicants. Justice Sotomayor focused on the detailed findings of the trial courts. Justice Kagan questioned whether SFFA would favor universities with few or no racial minorities on campus. Justice Gorsuch looked to Title VI of the Civil Rights Act of 1964. Justice Kavanaugh suggested preferences could be reserved for the descendants of slaves. Justice Barrett inquired about the expiration date of Grutter. And Justice Jackson recounted how the Reconstruction Congress used racial preferences for the freedmen. Finally, Part III breaks down four aspects of the Court’s decision. SFFA eliminated the “educational benefits” rationale for affirmative action. Chief Justice Roberts continues to take inconsistent positions in similar cases during the same term. Justice Kavanaugh continues to follow the lead of Chief Justice Roberts in leading cases, including SFFA. And I defend Justice Jackson’s likely involvement in the Harvard case, notwithstanding her recusal.

"A different sense of what we do here, who we are and what we deliver": Provider perspectives on the effects of a change in governance of healthcare services in correctional facilities in British Columbia.

In 2017, British Columbia (BC) transferred responsibility for healthcare services in provincial correctional facilities from the Ministry of Public Safety and Solicitor General to the Ministry of Health. This study explored how healthcare leadership perceived the impact of the transfer on services, work-life, and job satisfaction. We conducted one-on-one interviews (n = 8) with healthcare managers and medical and administrative leadership within Correctional Health Services. Using the Two-Factor theory of job satisfaction as a framework, we applied Interpretive Description methodology to analyse interview data. Participants identified changes to four areas of the working environment: (1) staffing, equipment, and resources (2) systems of supervision and support (3) standards, policies, and quality improvement and (4) culture and orientation. These changes predominantly affected motivational factors of job satisfaction and were described as enriching the roles of managers and staff. Participants described improved autonomy and recognition of providers, increased quality of services delivered, and a shift toward patient-centred care. The perspectives of healthcare leaders provide new insight into the potential impact of transferring healthcare services in custody to a public healthcare system. Discussion of changes and their affects also provide practical learning for jurisdictions seeking to improve healthcare under a variety of governance and service-delivery models.

State Attorneys General and their Challenges to Federal Policies: Insights from the Texas v. California Litigation Regarding the Affordable Care Act

Abstract This article explains a rising trend in American politics: the increasingly prominent role the state attorneys general (AGs) play in challenging federal policies. It focuses on one particularly important case—Republican efforts to overturn the Affordable Care Act in Texas v. California. We consider how state AGs and solicitors general (SGs) drive policy efforts through litigation and the factors that contribute to their participation. We find, first, that although members of the out-of-power party in Washington are the ones who typically bring state lawsuits, the Texas litigation demonstrates that these lawsuits are also a vehicle by which members of the party in power try to achieve goals that are otherwise unattainable through the legislative process. Second, Republican AGs submerge partisan arguments in “constitution-talk” with the aim of achieving a policy goal that was defeated democratically. We reach these conclusions through content analysis of AG press releases and semi-structured interviews with litigators and other elite actors.

Mental Health Secretariat: Collaboration for public safety personnel (PSP) mental health in Ontario

Mental health issues, and more specifically suicide, within the policing community have been a growing concern in recent years. In 2018 alone, there were nine suicides among active and retired police officers in the province of Ontario. At the time, nine suicides in one year were shocking and began to raise focused awareness of mental health challenges facing the profession. In 2021, the Ontario Ministry of the Solicitor General created Mental Health Collaborative Tables comprised of key stakeholders, subject matter experts, public safety personnel (PSP) with lived experience, mental health clinicians, and researchers. The Mental Health Secretariat (MHS) is responsible for supporting the tables. The MHS is accountable to the Deputy Solicitor General and has a mandate to provide a provincial action plan to address mental health issues among PSP. This article explains key observations regarding Ontario’s innovative approach to improving mental health supports for PSP and describes the perspective offered by Karen Prokopec, Manager, MHS at Ontario Ministry of the Solicitor General, and her colleague, Zarsanga Popal, Senior Performance Measurement and Evaluation Specialist with the MHS, on the establishment of the MHS.

William Howard Taft as Solicitor General

William Howard Taft as Solicitor General

Analysis: Former Solicitors General and the Supreme Court Bar

Analysis: Former Solicitors General and the Supreme Court Bar

The Solicitor General's Mixed Record of Success in Supreme Court Copyright Cases

The Solicitor General's Mixed Record of Success in Supreme Court Copyright Cases

Defenders of Racial Justice

The best way to explore the confluence of law and literature from ratification of the Reconstruction amendments to Plessy is to focus on the career of a little known figure, the lawyer-novelist Albion W. Tourgée, and his relationship to Samuel Phillips, a lawyer who would become the second Solicitor General of the United States. This essay traces their efforts to achieve some semblance of racial justice in the post bellum South, and how eventually these two came to defend Homer Plessy in the infamous Plessy v Ferguson case (which established the separate but equal doctrine). In examining Plessy, this essay reveals how the structure of that defense could be traced to Tourgée's fiction, and how their defense, and its echoes, which extend to Brown v Board of Education and beyond, help to prove the old adage that truth often proves to be stranger than fiction.

Confessions at the Supreme Court: Judicial Response to Solicitor General Error

AbstractAs the chief litigator for the US government, the solicitor general plays a crucial role in the Supreme Court decision-making process. The justices and solicitor general share a mutually beneficial relationship that is reinforced by the solicitor general’s willingness to provide legal advice when asked. In this article, we examine whether and how this relationship changes when the solicitor general files a formal “confession of error.” Using data on confessions filed between the 1979 and 2014 terms, we find the justices are significantly less likely to support the solicitor general’s position at multiple stages of the Court’s decision-making process if the solicitor general confesses error in light of a policy change. This punishment is harshest when the solicitor general provides advice as an amicus curiae participant, but it is only temporary. These results provide new insight into the scope and limitations of benefits allotted to the Court’s “tenth justice.”

When the potted plants are missing: how justice attendance at the State of the Union influences the solicitor general

ABSTRACT Among all the institutions or organizations who give file briefs or petition the U.S. Supreme Court, the U.S. Solicitor General (SG) may be the most powerful. It is well documented that petitions with the support of the SG are much more likely to be granted certiorari, and, if the SG advocates a decision, the Court is likely to decide in a likeminded manner. We examine what influence judicial attendance at the State of the Union (SOTU) may have on the activity of the SG Others have explored the motivating factors for justice attendance; these studies have found policy disagreements and public opinion play a role. We argue and find that the SOTU is a valid public announcement of the president’s agenda and when there are fewer justices in attendance, the SG is motivated to file more amicus briefs. Our findings line up with these expectations.

Robert Jackson's Non-Delegation Doctrine

This Essay explores Robert Jackson's theory of the non-delegation doctrine, which he first articulated in a brief that he filed as Solicitor General in Currin v. Wallace. The Supreme Court decided Currin without addressing Jackson’s broader arguments and his brief was forgotten. But the Currin brief deserves careful scrutiny both for the quality of its reasoning and for its two conclusions on non-delegation. First, Jackson argued that there are no internal limits on Congress’s discretion to delegate authority to executive agencies or independent boards. Second, he thought that there were such limits on Congress’s discretion to delegate authority to the President himself. The first point confirms, albeit in Jackson’s inimitable prose style, the legal consensus since 1935. His second point, though, would transform separation-of-powers law by extending constitutional limits to the authority that Congress may confer on the President for domestic affairs rather than focusing on only what Congress may take away from the President. Jackson’s brief in Currin also clarifies his canonical concurrence in Youngstown Sheet and Tube Co. v. Sawyer striking down President Truman’s seizure of the nation’s steel mills during the Korean War. In setting forth the first of his three categories for judging the legality of a presidential act, Justice Jackson explained: “When the President acts pursuant to an express or implied authorization of Congress, his authority is at his maximum, for it includes all that he possesses in his own right plus all that Congress can delegate.” This statement can be read to mean that a presidential action based on a congressional authorization is invalid only if the act is beyond the reach of the federal government. But that reading is wrong. Jackson qualified the phrase “all that Congress can delegate” with a footnote stating that executive action could be invalid because Congress cannot delegate authority to the President. Any ambiguities on that score are resolved by reading the Youngstown concurrence in conjunction with the Currin brief, where Solicitor General Jackson claimed that congressional delegations to the President could be unconstitutional. Embracing Jackson’s non-delegation doctrine would mean that federal statutes that delegate power over domestic affairs to the President would be subject to a constitutional attack on non-delegation grounds. The best example of such a vulnerable delegation is the National Emergencies Act, which gives the President unfettered discretion to declare an emergency and hence gain extraordinary powers. Under Jackson’s theory in the Currin brief and in Youngstown, a constitutional argument can be made against the parts of the National Emergencies Act involving domestic affairs. This non-delegation challenge would also draw from Justice Jackson’s discussion of emergency powers in Youngstown, which implied that an indefinite delegation of such broad authority by Congress to the President himself would be unlawful.

A Lavender League of Their Own? Voice and Visibility of Lesbian Ballplayers

A Lavender League of Their Own?Voice and Visibility of Lesbian Ballplayers Peter Dreier (bio) In 2010, President Barack Obama nominated Elena Kagan, the Solicitor General and former dean of the Harvard Law School, to serve on the Supreme Court. The New York Post ran a seventeen-year-old black and white photograph of Kagan smiling and getting ready to swing a bat in a softball game under the headline, "Does this photo suggest high court nominee Elena Kagan is a lesbian?"1 Other news outlets quickly raised the same question, stirring a controversy over Kagan's sexuality, which was no doubt what those opposed to Kagan's nomination intended. The controversy reflected both the persistent stigma against lesbianism and the persistent stereotype that links women athletes—and particularly baseball and softball players—to lesbianism. The story of lesbians in baseball parallels the struggles of women and gay people to gain more equality in all walks of life. In the 1940s and 1950s, when lesbianism was a taboo topic, especially in the sports world, the All-American Girls Professional Baseball League—the inspiration for the 1992 film A League of Their Own—did everything it could to avoid that stigma. The rise of modern feminism in the 1970s, especially the passage of Title IX of the federal Education Act of 1972, significantly increased the number of girls and women participating in organized sports at all levels, from preteens through the professional ranks. As the gay rights movement also burgeoned, a growing number of lesbian athletes came out of the closet, and the stigma was no longer as powerful. women in baseball Since its inception in the early 1800s, baseball was known as a sport for boys and men. "Baseball is too strenuous for womankind," wrote Albert Spalding in 1911,2 reflecting the dominant views of the period. Women faced ostracism [End Page 230] and derision—including the fear of becoming unmarried "spinsters"—if they dared violate social norms about engaging in sports.3 The first women's colleges were established in the 1860s and within a few decades some of them—including Smith College, Wellesley College, and the Women's College at Brown University—fielded baseball teams.4 In 1919, New York City's school system incorporated baseball as a physical education activity for girls. Most young girls played what eventually became known as softball, but some insisted on playing by men's rules and with baseball equipment.5 Gladys Palmer's 1929 book, Baseball for Girls and Women, included a variety of rules for indoor and outdoor games.6 the aagpbl During World War II, professional baseball faced a labor shortage. Eventually, over five hundred major leaguers served in the military during the war, while others worked in defense plants. Major league owners worried that fans would not pay to watch teams with second-tier players, but Philip K. Wrigley, the multimillionaire chewing gum magnate who owned the Chicago Cubs, figured they might buy tickets to see women play baseball. He recruited businessmen to sponsor local teams in midsized industrial cities within a one hundredmile radius of Chicago. The league started with four teams—the Racine Belles and Kenosha Comets in Wisconsin, the Rockford Peaches in Illinois, and the South Bend Blue Sox in Indiana—and eventually grew to ten. Softball had grown in popularity in the 1930s and 1940s. By 1943, there were at least forty thousand women's softball teams—one quarter of all the teams in the country.7 They provided a talent pool for the AAGPBL, but Wrigley insisted that they play some version of regular baseball. Over six hundred players participated in the league, which operated from 1943 to 1954. (Even after Jackie Robinson broke baseball's color line in 1947, the AAGPBL excluded Black players). Most players were from working-class families. Their salaries—initially ranging from $45 to $85 a week—were considerably higher than most other jobs available to women, and many men, even in defense plants. Most of them still had to work during the off-season, in factories or at clerical and office jobs. In 1987, Kelly Candaele made a public television documentary about the AAGPBL called A League...

A Losing Game

A Losing Game Kenneth S. Stern (bio) As Pamela Nadell notes, she wasn't my first choice for a scholar to testify at the House Committee on the Judiciary's hearing on campus antisemitism. But that's only because I did not know her. The Judiciary committee staff had asked me to suggest academics who opposed the Anti-Semitism Awareness Act (ASAA) and would make compelling witnesses. The scholars I had worked with over the years, including fellow members of the Alliance for Academic Freedom, all had other commitments that could not be changed. "Who else would be good?" I asked the half dozen people who weren't available. One suggested Nadell. Another said Nadell would be an excellent choice, and that she was "strong and would not fold under pressure." That's how, a few weeks before the hearing, Nadell and I had a conversation. She had many questions, and asked for reading material, which I sent. She then reached out to her Jewish studies colleagues and many others for their thoughts, and came to the same conclusion as I—that the Anti-Semitism Awareness Act was ill-advised, and would damage academic freedom and the interests of those involved with Jewish studies. The committee staff, no surprise, approved Nadell, and we met, as she notes, on that November day at the House Judiciary Committee. The hearing was a study in contrasts. We're very used to seeing a partisan divide in the US today, some of it playing out before that same committee in that same hearing room. But on the Anti-Semitism Awareness Act, it was obvious that there were members of both parties who supported it, and others who opposed it. It was also clear that those who opposed it did so with less bravado and more caution, aware of the potential political costs. All the Democrats and Republicans, I believe, were supporters of Israel. The issue that divided them was how strongly they valued academic freedom and free speech. Those who testified were also divided. As Nadell writes, the witnesses supporting the legislation included my friend and former AJC colleague Rabbi Andy Baker, Simon Wiesenthal Center's Rabbi Abraham Cooper, Jonathan Greenblatt of the ADL, a representative of Christians United for Israel, and a lawyer tasked with promoting the bill, Paul Clement, a former US Solicitor General. [End Page 201] These were all people from outside the academy, each of whom had their own institutional or political interests to articulate. I'm not questioning their sincerity or good faith, only noting that none of the pro-ASAA groups at the hearing, despite their concern with the campus, were campus-based, or to any significant degree campus-linked. Those opposing the legislation, on the other hand, were stakeholders in the campus. Barry Trachtenberg, a professor of Jewish studies at Wake Forest University, Suzanne Nossel of PEN America (which includes many academic writers among its members), I, and most especially Nadell, either work on campus or directly with campus stakeholders. Those opposed to the legislation all argued that while there are indeed instances of antisemitism at some campuses, the problem was drastically overblown, that Jewish students were for the most part not victimized by antisemitism, and that the effect of the legislation would be to make matters worse. As Nadell noted, citing a recent Stanford study, when Jewish students "experience discomfort as Jews, they trace it to the stridency of both sides of the Israel-Palestine debate on campus." In other words, to address the problem, educators should work to reduce the effect of stridency, not buy into the binary of one side or the other, which the legislation does. As I pointed out in my testimony, there is debate inside the Jewish community about whether Jews who are anti-Zionist are "inside the tent" or "outside the tent." This isn't an easy question. Most Jews would likely count Satmar Jews, who are anti-Zionist, as part of the community. Why then exclude young Jews who have an ideological or theological objection to Zionism based on their understandings of Jewish values and social justice? I'm not sure this debate can be decided, but the legislation...

Racial and Ethnic Ancestry of the Nation’s Black Law Students: An Analysis of Data From The LSSSE Survey

Racial and Ethnic Ancestry of the Nation’s Black Law Students: An Analysis of Data From The LSSSE Survey

Understanding Needs, Breaking Down Barriers: Examining Mental Health Challenges and Well-Being of Correctional Staff in Ontario, Canada.

Mental health challenges appear to be extremely prolific and challenging for correctional service employees, affecting persons working in community, institutional, and administrative correctional services. Focusing specifically on correctional workers employed by the Ontario Ministry of the Solicitor General, we shed light on their interpretations of the complexities of their occupational work and of how their work affects staff. Using a qualitative thematic approach to data analyses, we show that participants (n = 67) encounter barriers to treatment seeking, which they describe as tremendous, starting with benefits, wages, and shift work. We let the voices of staff elucidate what is needed to create a healthier correctional workforce. Recommendations include more training opportunities and programs; quarterly, semiannual, or annual appointments with a mental health professional who can assess changes in the mental health status of employees; offsite assessments to ensure confidentiality; and team building opportunities to reduce interpersonal conflict at work and increase moral by improving the work environment.

Election Administration in Times of COVID-19: How the Texas Supreme Court Failed Texas Voters

On May 27, 2020, the Supreme Court of Texas (SCOTX) handed down an opinion on mail-in voting in record time, only seven days after oral argument (held via Zoom) and only 14 days after the case arrived in its inbox. The High Court’s haste, however, was to curtail voting by mail (VBM) in times of pandemic--rather than expand it--and they did so upon an emergency mandamus petition filed by Attorney General Paxton, the state’s chief legal officer, rather than in a case brought by advocates for voters. In a glaring disconnect, the members of the SCOTX voted remotely from their respective homes to deny all Texans the ability to vote remotely from their home under the absentee voting provisions of the Texas Election Code. In re State of Texas, No. 20-0394, __ S.W.3d ___, 2020 WL 2759629 (Tex. May 27, 2020). In construing the absentee voting provision as urged by the Attorney General, the Court held that lack of immunity to COVID-19 does not, without more, constitute a “physical condition” that entitles the voter to vote absentee to avoid the risk of infection at the polling place. Part I and II of this article will show how the all-Republican state supreme court went out of its way to interpret the Election Code contrary to the best interest of Texas voters when there was no good reason to do so, and will dispel the notion that the state supreme court was merely giving effect to the Legislature’s will in a nonpartisan fashion. In Part III I will argue that the Texas Supreme Court’s ruling does not have the force of binding precedent because the question of statutory construction was improperly addressed in an unsuccessful mandamus case against election clerks who had done nothing wrong. No writ of mandamus was issued against them. The Court’s interpretation of the “disability” provision to exclude a lack of immunity to COVID-19 as a valid reason to apply for a mail ballot therefore constitutes dictum because it was not essential to the disposition of the case. In Part IV and V I will explore the partisan political dimension of the dispute over absentee voting in Texas, and describe and assess the conduct of the state supreme court and the major players in the legal wrangling over mail-in voting in Texas. Integrating the various strands of analysis, I conclude that the Supreme Court did Texans a disservice by thwarting a remedy for the better management of health risks inherent in election administration under pandemic circumstances; - a remedy that was available within the letter and the spirit of the existing absentee voting provision in the Texas Election Code; that the Court ruled contrariwise for extra-jurisprudential reasons; and that the Court’s disposition of the case leaves voters and others at the risk of being criminally prosecuted for not “correctly” reading and heeding the Supreme Court’s ruling. I also conclude that the proponents of easier access to mail-in voting (most notably, the Texas Democratic Party) pursued a suboptimal litigation strategy, and should not have capitulated to Attorney General Paxton after being bested by him. AG Paxton’s successful gambit consisted of by-passing a pending state-court appeal (in the case in which he had lost at the trial court level and in the first round on appeal) so as to obtain a favorable ruling against the Democrats on an emergency basis in a separate case against different parties; a mandamus case filed directly in the all-GOP Texas Supreme Court while at the same time excluding his political nemesis from that arena. In the wake of the Texas Supreme Court’s ruling, the Texas Democrats abandoned their state-court litigation in favor of their federal strategy centered on an age-discrimination argument under the Twenty-Sixth Amendment. That bid for a federal remedy, however, does not look promising, given the current jurisprudential climate and ideological complexion of the Fifth Circuit and the U.S. Supreme Court. In the first salvo, a panel of the Fifth Circuit ruled against the Democrats on the Texas Solicitor General’s motion for stay, and the SCOTUS declined to get involved on an emergency basis so early in the game. Justice Sotomayor noted that the articulated concerns were weighty, and the arguments seemingly novel, but concurred in the denial of extraordinary relief. Texas Dem. Party v. Abbott, 2020, 961 F.3d 389 (5th Cir. Jun. 4, 2020) (staying preliminary injunction order) (motion to vacate stay denied by Tex. Democratic Party v. Abbott, 140 S. Ct. 2015 (Jun. 26, 2020)).

The political economy of restricting marketing to address the double burden of malnutrition: two case studies from Fiji.

To draw lessons from Fiji regarding the challenges and opportunities for policy initiatives to restrict (i) food marketing to children and (ii) marketing of breast milk substitutes, to inform policy for the double burden of malnutrition. Qualitative political economy analysis of two policy case studies. Fiji. Eleven key informants from relevant sectors, representing public health, economic and consumer interests. This study used two policy initiatives as case studies to examine factors influencing decision-making: Marketing Controls (Foods for Infants and Young Children) Regulations 2010, amended in 2016 to remove guidelines and restrictions on marketing in the form of labelling, and the draft Advertising and Promotion of Unhealthy Foods and Non-Alcoholic Beverages to Children Regulation developed in 2014 but awaiting review by the Solicitor General's Office. Factors identified included: a policy paradigm in which regulation of business activity contradicts economic policy goals; limited perception by key policy actors of links between nutrition and marketing of breast milk substitutes, foods and beverages; and a power imbalance between industry and public health stakeholders in policymaking. Regulation of marketing for health purposes sits within the health sector's interest but not its legislative remit, while within the economic sector's remit but not interest. Opportunities to strengthen restrictions on marketing to improve nutrition and health include reframing the policy issue, strategic advocacy and community engagement. Restricting marketing should be recognised by public health actors as a public health and an industry policy issue, to support strategic engagement with economic policy actors.

Taking Note: Justice Harry A. Blackmun's Observations from Oral Argument about Life, the Law, and the U.S. Supreme Court

Taking Note: Justice Harry A. Blackmun's Observations from Oral Argument about Life, the Law, and the U.S. Supreme Court