Deborah Jones Merritt, law professor at Ohio State University's Moritz College of Law, readily confessed recently that she feels like "the Erin Brockovich of the Supreme Court" these days. That's because, when she rises to argue for the respondent in the copyright case Reed Elsevier v. Muchnick on Wednesday, there will be "so many lawyers on the other side."
But that's okay; at her side will be her co-counsel and husband Andrew Lloyd Merritt, who once was a law professor but now is a fulltime musician.
That's how it sometimes is for uncompensated, court-appointed counsel like Merritt. A former law clerk to Justice Sandra Day O'Connor and then-circuit court judge Ruth Bader Ginsburg, Merritt was appointed by the Court in April to argue in the case. "I got a call out of the blue, and of course I said yes," said Merritt, who will be making her first argument before the Court. She acknowledged copyright law is not her specialty; she just published a text on evidence.
So why did the Court appoint counsel in the case, which involves federal court jurisdiction over copyright infringement claims? It's the latest round in a long-running class-action dispute over copyright infringement claims by freelancers against database publishers who profit from their stories and photos. At issue in this round is whether federal courts even have jurisdiction over claims by freelancers who never registered their works for copyright in the first place. The district court said yes, certified the class and approved a settlement that had been worked out. But the U.S. Court of Appeals for the 2nd Circuit reversed, finding that jurisdiction does not extend to unregistered claims.
When the publishers appealed to the high court, the claimants joined in asking the high court to review the case. Both sides argue that the circuit court got it wrong, leaving nobody to defend the position that there is a jurisdictional bar against unregistered claims. "All the parties want to get a court-enforced settlement at some point," said Merritt.
In such cases, rather than dismissing the case, the Court often appoints counsel to advance the orphaned argument. It usually happens once or twice a term, as we discussed in this story last year. "A lot can be said" in favor of the 2d Circuit decision, she stated.
In preparing for her argument, Merritt said one of the toughest adjustments she'll have to make is standing behind the podium for a full half-hour. "That's not my style," said the professor. "I won't get to walk around the classroom and gesticulate."
Her adversaries will be veteran Charles Sims of Proskauer Rose in New York, representing the publishers, and Ginger Anders, assistant to the solicitor general, representing the United States. Like Merritt, Anders can boast she clerked for two of the Court's female justices: Sonia Sotomayor when she was on the 2nd Circuit, and Ginsburg on the Supreme Court.