FIRST ONE @ ONE FIRST

Vox Populi – 1/13/10

Posted in Vox Populi by Mike Sacks on January 13, 2010

These past three days have been among the most rewarding I’ve ever had.  F1@1F is still in its infancy and its mission still far from accomplished, but my first week at the Court has been a rousing success.  I would like to thank everyone who spoke with me on and off the record in the freezing cold as well as Above the Law for blurbing over thousands of visitors to the web site on Monday.

Today’s crowd for American Needle v. NFL featured a sports law guru; two beaming UVA 2Ls; a headlamped, brief-reading, lawn-chair sitting college senior; and a DC lawyer who works for the firm representing the NFL and clerked for the Seventh Circuit judge whose opinion was at issue this morning.  And they were only numbers two through six in line.

But for all the lawyers and law students in the general admission line before dawn this morning, two lay persons will stand head and shoulders above all in my memory.  Literally.

Jim and Meade Klingensmith, a father and son from Pittsburgh, PA, and both, by my estimate, standing about 6’6″, waited in line each day this week.  And next week, when I will be sleeping in and going to class, they will be back out there in line, making wimps out of the rest of us.

Meade, a sophomore at Oberlin College, is in DC on his winter term, where he is pursuing an independent study.  His project?

“I’m going to all five hearings,” said Meade, “and for each one, I will be writing down how I would come down in the case and how I think it will actually come down.”  Awesome.

Jim, Meade’s father, just retired and was visibly thrilled to have the time to share this unique experience with his son.  His wonder at the Court remained equally palpable since we met on Monday.

“It’s very impressive to see the judicial system at work,” Jim said through a smile.  “It really affirms your belief in the law.  Everything you’re seeing, you’d expect to see, but it’s good to actually see it.”

And for a college student who could still be on break had he so desired, Meade had a surprisingly positive attitude about his grueling mornings.  Whereas waking up at 2:30am was the hardest part for me, Meade claimed that nights are harder because he knows he’ll be sleeping for fewer hours than he’ll be standing in the cold.   But, said Meade, “once the morning comes, I just go for it.”

Nearly every person I spoke to had his or her own fear about these mornings: not enough sleep, too cold, going alone, hard to wake up, may get there too late to get in.  But once these mornings came, we all went for it.  And once we get in line and meet our neighbors, our fears melt away, even if our toes turn to ice.

“It’s been fascinating to hear each person’s story,” reflected Jim.

I couldn’t agree more.  Thanks to everyone in line who shared theirs with me.

I hope to see you all again next month for the next batch of newsworthy cases.  And if any of you readers want to come on out, well, you know where to find me.

Until then, I will continue to blog regularly, sans Court reports, here at F1@1F.  Subscribe by RSS or email, bookmark the page, or check in whenever.  I enjoy your comments and feedback, so please keep the hits coming.

Rock.

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Kennedy Doesn’t Like to Watch

Posted in Case Reports, Clairvoyance by Mike Sacks on January 13, 2010

The Court just issued its first party-line, 5-4 opinion of the term, staying the broadcast of the Prop. 8 trial underway in California to federal courthouses in San Francisco, Seattle, Portland, Brooklyn, and Pasadena.*  Read SCOTUSBlog’s write-up and download the opinion here.

The majority paints its decision in procedural terms, though I find it difficult to believe that the vote would break down similarly if the potentially broadcasted case’s substance was, say, tax evasion.  In such a case containing no hyper-charged political pretext, we could have very well seen a nearly-unanimous vote one way or the other.

Also, note Sotomayor’s vote with the dissent.  If Souter’s distaste for Supreme Courtroom cameras extended on down to the district court level, perhaps he would have voted with the majority, lending the decision a modicum of integrity.

Finally, I am intrigued as to whether this opinion says anything about Kennedy’s potential vote should (when, really) Perry v. Schwarzenegger comes up to the Court.  While one can be fairly certain that the other eight justices voted their policy preferences for Perry‘s underlying issue, something tells me that Kennedy remains eminently swingable.

On the other hand, Kennedy’s vote with the majority today could mirror his abortion jurisprudence.  That is, just as he upheld abortion rights in Casey only to limit its reach in Gonzales v. Carhart, so too could marriage exist beyond the bounds of Kennedy’s gay rights rulings.

*Thanks to commenter Mark for correcting my original statement that the Court stayed the YouTube broadcast.  They didn’t.  But the Court’s temporary stay may be the functional equivalent of a permanent stay on all broadcasting, writes Linda Hirschman for NPR/The Nation:

As a technical matter, the temporary stay is only good until the Court addresses a formal appeal for a permanent stay. But the standard for extending the temporary stay includes the requirement that the court thinks a majority of its members would vote in favor of making the stay permanent. So this 5-4 division looks like the ball game.

Post-Needling

Posted in Case Reports by Mike Sacks on January 13, 2010

Today’s argument in American Needle Inc. v. NFL offered two lessons to the packed courtroom: first, the Solicitor General’s office can rob both parties of a clear victory; second, if Justice Breyer isn’t kept on a tight leash, he will crack jokes all morning.

American Needle was a hotly anticipated case that asked whether the thirty-two teams in the NFL served as a single entity when they granted Reebok an exclusive license to market NFL apparel.  American Needle, Inc., a sportswear company that once did business with the NFL, argued that the NFL violated the Sherman Antitrust Act because the league’s thirty-two teams, all independent companies, acted together to limit the market in their agreement with Reebok.

Whereas American Needle petitioned for certiorari seeking a reversal of the Seventh Circuit’s holding that the NFL constituted a single entity for intellectual property and trademark purposes, the NFL, rather than oppose American Needle’s petition, decided to run up the score.  It urged the Court to grant certiorari and expand the Seventh Circuit’s holding beyond trademark and intellection property.  NFL wanted the Supreme Court to find that the league is a single entity in general, which could potentially shield the NFL from anti-trust scrutiny.

Faced with these two extremes, the Court called for the views of the Solicitor General’s office, which responded in amicus by adopting the Seventh Circuit’s more modest approach.  This morning, the Court made clear its ambivalence towards both parties’ arguments, suggesting its ultimate allegiance to the Solicitor General’s approach.

Indeed, at no point did any justice clearly come down for or against either party.  Rather, they all seemed interested, though non-committal, in testing the limits of the rule of reason–antitrust law’s case-by-case balancing test to determine what is and isn’t an unreasonable restraint on the market–in NFL teams’ relationship with the league itself.

For instance, during American Needle’s argument, Justice Alito wondered whether certain teams, under NFL’s rules, are allowed to schedule more games for themselves to get more money.  Chief Justice Roberts inquired whether the NFL’s rules and regulations are horizontal rules among the teams or issued by a single, central entity.  Justice Stevens followed up by exploring–and subsequently repeating throughout the argument–the idea that NFL’s licensing agreement with Reebok could actually have an overall “pro-competitive” effect on the market by giving more public attention, and therefore more sales, to less popular or successful teams.

Glen Nager, American Needle’s lawyer, responded by stating that the anti-competitive aspects of the NFL’s control over each team’s merchandizing outweigh the possible pro-competitive situations.  Teams, Nager argued, should get together to forge an agreement in which each team will individually market its own logos.

And this is when Crazy Legs Stevie Breyer grabbed the ball and ran.  After fumbling to think of the Patriots’ arch-rival, first settling on the Saints, and then inventing inter-sport play by replacing the Saints with the Red Sox, Breyer threw up his hands and proclaimed, “I know baseball better.”  Laughter filled the Courtroom.  And for the rafter-swinging Breyer, who scans the audience with satisfaction after almost every one of his questions, laughter proves a potent drug:

Breyer: I don’t know a Yankees fan who will take a Red Sox sweater if you gave it to them!

Nager: A three-year-old could be persuaded.

Breyer: They have very small allowances, those three-year-olds.

Irked by his roadshow adversary‘s getting all the guffaws, Justice Scalia grumbled, “Why am I worried about this other stuff?”  Nager dead-panned: “because Counsel has an obligation to engage justices’ questions.”  After making the case for the relevance of his comical questions, Crazy Legs Breyer took himself out of the game, giving Nager permission to “blow off” his questions.

By the time Gregg Levy, the NFL’s lawyer, took to the lectern, the courtroom had returned to its silent decorum.  Levy argued that, among other reasons, the NFL deserved single entity status because its primary purpose is to centrally and cohesively promote the game of football as authorized by all thirty-two teams.  Justice Scalia did not buy that line and pithily stated that the NFL’s purpose–particularly through its licensing deal with Reebok–”is to make money.”  Sotomayor piled on: “you are seeking through this hearing what you haven’t got through Congress: an absolute bar to anti-trust claims.”  Yet the old ambivalence soon overtook the momentary shot of antagonism.  The justices went back to their exploration of the rule of reason and Scalia admitted that the individual teams constituting the NFL would be “worthless if the NFL disappears.”

American Needle came into the Court as potentially transformative of sports law, if not anti-trust law in general, but by the time Chief Justice Roberts banged his gavel and submitted the case, it was clear that the case, to switch to Justice Breyer’s sport of choice, would be sent back down to the minors for further development.

UPDATE: The official transcript is available here.  Excoriate my own transcription prowess in the comments.

Pre-Needling

Posted in Anticipation by Mike Sacks on January 13, 2010

Back home now.  Feeling is coming back to my toes.

  • Lawyers and law students dominated this morning’s line for American Needle Inc. v. NFL.
  • The line started building in the 4am hour, earlier than the lines on Monday and Tuesday.
  • I was surprised that there were not more lay linegoers today, given the publicity American Needle has received – especially from Drew Brees’s op/ed in the Washington Post last Sunday.
  • To my great benefit, an expert sports law practitioner sat second in line.  As the clock struck 4am, he laid out three possible routes the Court may take in deciding American Needle, which I will outline in my afternoon write-up.

Be sure to come back later today for my argument recap and tonight for my Vox Populi column.

Time to suit up and get back to the Court!

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Back on top.

Posted in Uncategorized by Mike Sacks on January 13, 2010

6 at 4:30.

Posted in Uncategorized by Mike Sacks on January 13, 2010

3 and 4 now here.

Posted in Uncategorized by Mike Sacks on January 13, 2010

3 and 4 now here. 4:11am.

Second has arrived. 3:52am.

Posted in Uncategorized by Mike Sacks on January 13, 2010

Second has arrived. 3:52am.

Concrete Throne Reclaimed!

Posted in Uncategorized by Mike Sacks on January 13, 2010

First, 3:22am.

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