Professor named to argue

By Lyle Denniston
on Apr 3, 2009 at 11:40 am

Ohio State University law professor Deborah Jones Merritt has been chosen by the Supreme Court to join in a major case on copyright infringement, to defend a federal appeals court ruling that others in the case want overturned.  The case is Reed Elsevier, et al., v. Muchnick, et al. (08-103), granted on March 2; it will be argued in the Term starting Oct. 5.

Merritt is not a specialist in copyright law, but has taught a course in patent law.  Her most recent major publication is a teacher’s manual on educating students about evidence.  The case she will brief and argue before the Court is primarily one about court jurisdiction — specifically, the federal courts’ authority to approve a settlement and release of claims over copyrights.

At issue in the case is a Second Circuirt Court ruling nullifying an $18 million nationwide settlement of claims that authors made when their free-lance articles or photos in major publications were made freely available on publishers’ electronic databases.  The publishers appealed to the Supreme Court; the Court specified the question it will review: “Does 17 USC 411 (a) restrict the subject matter jurisdiction of the federal courts over copyright infringement actions.” (A post discussing the grant and some background on the case can be read here.) Replying to the petition, two groups that had objected to the settlement joined in urging the Court to rule on the jurisdictional issue.  Thus, the Circuit Court ruling was left without counsel who would participate in the oral argument. That is the role that now falls to Professor Merritt, under an order the Court issued Thursday.

A graduate of Harvard and from Columbia Law School, she clerked on the D.C. Circuit Court for then-Judge (now Justice) Ruth Bader Ginsburg.  She then clerked on the Supreme Court for now-retired Justice Sandra Day O’Connor.

It is a common practice for the Court to name counsel to speak for a lower court ruling when the parties do not do so.  The choice of counsel is within the Court’s discretion.