Tuesday, October 06, 2009


I once had a boss who occasionally asked us to do things that we'd really rather not do. For example, he once asked my co-worker to fight a parking ticket for him.

I was reminded of this by a copyright case in which the Supreme Court will hear oral argument tomorrow, Reed Elsevier Inc., et al., v. Muchnik, et al. (08-103). As happens occasionally, the Court rejected the issues presented by the petition for certiorari and wrote its own instead. What is far more curious, however: all the parties are on the same side of the issue the Court decided to hear — they are all against the Second Circuit's ruling on it.

So the Court got Ohio State law professor Deborah Jones Merritt to argue that side. I can just imagine that phone call:


C.J. ROBERTS: Howdy Professor, this is John Roberts!

PROF. MERRITT: The Chief Justice?

C.J. ROBERTS: That's the one.

PROF. MERRITT: Oh, um, ah, hello your Honor. How may I help you?

C.J. ROBERTS: Well, see, we've got this case. We're thinking about granting a writ of certiorari, but, I'll be honest, these guys kinda missed the boat with their petition.

PROF. MERRITT: I see . . . . I don't want to tell you how to do your job, but couldn't you just deny the petition?

C.J. ROBERTS: Welllll, yeeaaaah, I suppose. But the case implicates a pretty important question they didn't raise.

PROF. MERRITT: That makes sense. Well, you're the Supreme Court! You can write the question yourselves, right?

C.J. ROBERTS: Exactly! That's what I keep telling everybody.

PROF. MERRITT: So what's the problem?

C.J. ROBERTS: Well, don't tell anyone, but we kinda want to reverse the Second Circuit.


C.J. ROBERTS: The problem is, all the parties want us to reverse the Second Circuit on our question, too.

PROF. MERRITT: Oh, that is tricky.

C.J. ROBERTS: So . . .


C.J. ROBERTS: Wouldja mind arguing the other side?

Just like my co-worker, who dutifully fought our boss's parking ticket, Professor Merritt couldn't bring herself to say no.

Good luck tomorrow, Professor!

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