Earlier this month, women lawyers and law students filed an amicus brief that told the story of their own abortions and the value that reproductive rights played in their careers.

Earlier this month, women lawyers and law students filed an amicus brief that told the story of their own abortions and the value that reproductive rights played in their careers.

The legal battle over reproductive rights continues to be much in the news. And the heat got turned up this week when Planned Parenthood filed a lawsuit over an antiabortion ‘sting’ video-maker. As the Washington Post reports:

“Planned Parenthood filed a federal lawsuit Thursday against the maker of a series of undercover videos released last year that sought to prove that the women’s health organization illegally profits by selling tissue from aborted fetuses.”

You can read about the allegations here.

But that reminded me, in an in-case-you-missed-it spirit, that a remarkable brief was filed at the U.S. Supreme Court in early January. As reported in the National Law Journal:

“More than 100 female lawyers joined in a brief to tell the U.S. Supreme Court about their own abortion experiences and why their reproductive freedom was pivotal to their personal and professional lives.”

“The extraordinary brief, filed last week, was signed by former judges, law professors, law firm partners, public interest lawyers and law clerks, though none who clerked for the high court itself.”

A Texas case may be "the most important Supreme Court battle over abortion in a generation."

A Texas case may be “the most important Supreme Court battle over abortion in a generation.”

The case, Whole Woman’s Health v. Cole, comes out of Texas, which enacted restrictions on abortion clinics “that could result in shuttering many facilities. [Abortion advocates] claim the regulations pose an ‘undue burden’ on women’s rights.”

Read the whole story (and the brief) here.

Wherever you stand on the question of abortion, this advocacy and the attempt to persuade the Justices are noteworthy. As the story says, attorney Janice Mac Avoy is an attorney who volunteered to tell her own story and to be a lead party on the brief. She pointed out that the drafting in the brief “responds to ‘storytelling briefs,’ often filed on the other side, that relate the stories of women who have regretted their abortions.”

Legal history is filled with examples of parties adopting the strategies of opponents. Time will tell whether this amicus brief, and the many others filed, are ultimately persuasive. “Set for argument on March 2, the case is viewed as the most important abortion rights case in nearly a decade.”

Have a terrific—and persuasive—weekend.

Opponents and supporters of Planned Parenthood demonstrate Tuesday, July 28, 2015, in Philadelphia. Anti-abortion activists are calling for an end to government funding for the nonprofit reproductive services organization. (AP Photo/Matt Rourke)

Opponents and supporters of Planned Parenthood demonstrate Tuesday, July 28, 2015, in Philadelphia. Anti-abortion activists are calling for an end to government funding for the nonprofit reproductive services organization. (AP Photo/Matt Rourke)

Notable Supreme Court cases to be discussed at Rehnquist Center Constitution Day Program on September 21.

Notable Supreme Court cases to be discussed at Rehnquist Center Constitution Day Program on September 21.

Whenever I mention Constitution Day, some legal wag is bound to contact me to remind, “But Tim, every day is Constitution Day!”

To that I say, huzzah for your enthusiasm. But accuracy compels me to remind in return: Constitution Day falls in September every year, your eager patriotism notwithstanding.

For the truly eager (and patriotic), I recommend to you the Constitution Day program planned at the Rehnquist Center at the University of Arizona College of Law. It will be held next Monday, September 21, from 1:00 to 4:30 pm.

Registration (free!) is here.

Last year, I was able to attend in person. (No such luck this year.) Here’s my story from that compelling panel discussion.

As organizers describe next Monday’s event:

The panel discussion features legal experts who will review some of the major cases decided by the United States Supreme Court during the 2014 term.

Panelists include:

The moderator will once again be the law school’s Professor David Marcus.

Hosted by the William H. Rehnquist Center in the UA James E. Rogers College of Law, the event will feature a panel of legal experts reviewing notable cases decided by the United States Supreme Court during the 2014 Term.

What will they discuss? Here are some of the seminal decisions they’ll cover:

  • King v. Burwell, in which the Supreme Court upheld a provision of the Patient Protection and Affordable Care Act that offers tax credits to individuals who purchase health insurance through federal exchanges.
  • Horne v. Department of Agriculture, a takings case involving the Fifth Amendment and the government’s responsibility to pay just compensation when it takes personal property.
  • Obergefell v. Hodges, in which the court held that same-sex couples’ right to marry is guaranteed under the Fourteenth Amendment.
  • Arizona State Legislature v. Arizona Independent Redistricting Commission, in which the court found that Arizona voters have the right to transfer redistricting power from the state legislature to an independent commission.

As always, if you attend and take any photos or decide you’d like to write a brief summary of the highlights, I’d be happy to chart about a guest blog post. Write to me at arizona.attorney@azbar.org.

Tucson attorney Stephen Kimble outside the Supreme Court, which considered his legal battle with Marvel Entertainment over royalties to a toy he patented.

Tucson attorney Stephen Kimble outside the Supreme Court, which considered his legal battle with Marvel Entertainment over royalties to a toy he patented.

Who has not dreamed of being a spider person? Spider-Man, specifically.

If you have, then your dream may have included depressing your middle finger into your palm, and so projecting web material onto your nemesis.

Stephen Kimble sculpture award in May 2006 Arizona Attorney

Stephen Kimble sculpture award in May 2006 Arizona Attorney

Sound familiar? Then you may want to thank attorney Stephen Kimble.

On Wednesday, the UA Law School features Kimble, an alum, as it kicks off its series called “Contemporary Developments in Law.” Kimble is also a previous winner in the Arizona Attorney Creative Arts Competition.

Here’s why Kimble’s the first speaker:

“Mr. Kimble, a lawyer and artist, is the inventor of the toy that Marvel Entertainment, through Hasbro, marketed as the ‘Web Blaster.’ The toy ‘makes it possible for a player to act like a spider person by shooting webs from the palm of his or her hand.’”

Stephen Kimble Web-Blaster patent

Stephen Kimble Web-Blaster patent

The Web Blaster sounds pretty cool, right? Unfortunately, that wasn’t enough to sway the U.S. Supreme Court, where Kimble was a petitioner in Kimble v. Marvel Entertainment, 135 S. Ct. 2401 (2015).

“In Kimble, the Supreme Court declined an invitation to overturn a 1964 precedent, known as the Brulotte rule. Under the Brulotte rule, a patent royalty agreement cannot extend beyond the expiration date of the patent. The rule has significant implications in many industries, though its legal and economic premises were abandoned long ago. The Court decided to use Kimble as an opportunity to clarify its stare decisis jurisprudence. It held that a ‘superspecial justification’ may be needed to overrule statutory stare decisis and that wrong precedent does not offer such a justification.”

In other words, he did not prevail. You can read more about his case here and here.

For those who want more detail, here’s more case description:

“Marvel Entertainment used Kimble’s idea and successfully marketed it, through Hasbro, as the ‘Web Blaster’ (still available in stores). Mr. Kimble fought in courts against Marvel and won. Marvel was required to pay Kimble royalties: 3% on its sales of the Web Blaster.

“Under a 1964 precedent, known as the Brulotte rule, a patent royalty agreement cannot extend beyond the expiration date of the patent. Kimble and Marvel were unaware of the rule when they settled their original dispute. Later, Marvel sought to stop paying royalties using the Brulotte rule. Kimble challenged the rule. In Kimble v. Marvel Entertainment, the Supreme Court chose not to overturn the Brulotte rule. Instead, it issued an opinion about its commitment to statutory stare decisis.”

This pilot event is co-organized by the Arizona Law Review and with the Business Law Program, and will focus on Kimble v. Marvel Entertainment, 135 S. Ct. 2401 (2015). The petitioner, Stephen Kimble (UA Law ’83), will describe the events that led to the case and its implications.

  • What: Kimble v. Marvel Entertainment: A Conversation With Stephen Kimble
  • When: Wednesday, Sept. 9, 2015, 12:00-1:15 p.m.
  • Where: The University of Arizona, James E. Rogers College of Law at the Faculty Lounge. Lunch will be served.

RSVP to Nstanley@email.arizona.edu.

Meantime, you can still buy a Web-Blaster today. Not that it’ll do Stephen Kimble much good.

web-blaster spiderman Stephen Kimble

A campaign to invite the Justices of the Supreme Court to same-sex weddings has an underlying mission.

A campaign to invite the Justices of the Supreme Court to same-sex weddings has an underlying mission.

How high profile is the pending Supreme Court decision on same-sex marriage? Pretty major. Maybe even big enough to increase the mail reaching the Court.

I’m sure the Justices regularly receive quite a bit of mail—which they cannot answer, for obvious reasons. But now that mail may include wedding save-the-dates.

A movement spearheaded by actor Jesse Tyler Ferguson (of Modern Family TV fame) aims to inundate the Justices with save-the-date wedding announcements—for same-sex couples.

Given his partnership with the website Funny or Die, there are bound to be a few funny elements to the initiative. Here’s how one news story on it opens:

“With the Supreme Court nearing a decision on marriage equality, Funny or Die has collaborated with Jesse Tyler Ferguson to encourage same-sex couples to send Supreme Court justices wedding save-the-date announcements—a reminder of the human lives its ruling will impact.”

Read the complete story here.

Supreme Save the Date with Jesse Tyler Ferguson

Adding to the humor, Ferguson has taped a video in which he plays various Justices, each of whom is baffled by the onslaught of invitations they are receiving. Here it is:

Whatever your beliefs on how the Court should rule, I’m hoping you enjoy the video. Perhaps it’s similar to a past video that portrayed the Justices as puppies. I wrote about it here, but I’ve included the video again below:

Erwin Chemerinsky Supreme Court book coverBefore November runs its course, I wanted to point out one item in this month’s Arizona Attorney you may have missed—a book review.

My fondness for book reviews—when well done—is unabashed. And this month, attorney Roxie Bacon examines a new book by Erwin Chemerinsky that dissects the U.S. Supreme Court.

Chemerinsky is Dean of the UC-Irvine law school, as well as an accomplished scholar and SCOTUS litigant. And his assessment of the Court’s standing is damning. He argues that the Court has fallen down on the job in regard to its most important missions.

You can read Roxie’s excellent review here.

Meantime, for those who think Chemerinsky and Bacon are being too hard on the High Court, consider the current thinking of someone who knows that tribunal well. Linda Greenhouse covered the Supreme Court for years for the New York Times (and I spoke with her once myself, here). Now, she merely shakes her head in dismay at the tortuous legal paths the Court’s majority have taken in significant cases.

Linda Greenhouse

Linda Greenhouse

You should read Greenhouse’s op-ed, and feel free to let me know if the assembled thinkers have overstated their case, or if you agree.

A grateful hat-tip to Kristen Senz of the New Hampshire Bar Association for mentioning Greenhouse’s essay.

Which Justice is this? You’ll have to watch to find out. Puppy and Supreme Court Last2Week_Tonight_with_John_Oliver

Which Justice is this? You’ll have to watch to find out.

Today’s post is of the type for which Change of Venue Friday was created. I’m guessing you’ll like it.

There is a video going around, viral-like, from the TV program Last Week Tonight with John Oliver. In fact, so viral it is, and so many lawyers have mentioned it to me, that I hesitated to offer it here. But finally I examined the matter and applied high editorial values, and I saw that the content includes puppies. So you’re welcome.

The challenge faced by the show’s producers—and by any American who cares about American justice—is that the U.S. Supreme Court will not allow cameras in its august chamber. So the show decided to create a courtroom mockup and have dogs sit in the justices’ seats. They then could use the official audio from the actual courtroom to make history come alive for all of us.

Watch below.

As if that’s not enough, the patriots at the Last Week Tonight show did this: They offered a video of the dogs “deliberating,” entirely without audio. Why? They explain:

“We have provided this footage for you to do your own Supreme Court reenactments. Please feel free to use it, post your videos, and tag them #RealAnimalsFakePaws so we can find them.”

Here it is:

Enjoy? Go here to see more of what the show is up to.

And be sure to get the official audio from the Supreme Court (capable of puppy-purposing) here.

Have a fun—and chew-toy-filled—weekend.

Judge George Anagnost moderates the We the People panel, Sept. 17, 2014. He gestures toward panelists Bob McWhirter and Doug Cole.

Judge George Anagnost moderates the We the People panel, Sept. 17, 2014. He gestures toward panelists Bob McWhirter and Doug Cole.

Last week, I attended the annual “We the People” CLE program, which gathers smart folks and lets them loose on the most recent High Court Term. The follow-up was complete and often enlightening.

Paul Bender, Doug Cole and Bob McWhirter offered insightful and often humorous takes on a wide variety of the cases taken by SCOTUS. Led by moderator Judge George Anagnost, they were a formidable intellectual team.

(I appreciated Professor Bender’s unintended error when he misquoted the opening words for the Court’s day: “God save the United States from this honorable Court.” Who doesn’t agree with that occasionally?)

And yet I continue to wonder about the marrying of content with the panelists who discuss it. I have covered this topic—diversity—before, and so let me mention it again.

As always, the cases explored by the panel touch on nearly all areas of human experience. But, as an example, how would the treatment of even one case—Hobby Lobby—have varied had there been even one woman scholar on the panel? Some closely held businesses apparently are untroubled by any medical product or procedure save one—and that one affects women most of all. Would a woman scholar’s view have offered a different, compelling vision?

Of course, I do not believe that all women—or all of anyone—think the same way about legal topics. But, conservative, liberal or in between, a woman panelist may have taken more than an academic interest in the issue.

Professor Paul Bender, seated, at the We the People panel, Sept. 17, 2014.

Professor Paul Bender, seated, at the We the People panel, Sept. 17, 2014.

The same is true of the Shelby case regarding the Voting Rights Act, or the Schuette case regarding affirmative action, or the McCullen case regarding abortion-clinic buffer zones, all ably examined. A mandatory number of African American scholars, or women, per panel is not what I’d expect. But their complete absence is surprising. (Imagine attendees’ surprise if they walked in and saw an all-woman panel, or an all-Black panel. THAT would be news!)

Adding to the oddity of the absence of diversity was the extended discussion on that very topic by the panel. Professor Bender, for example, took pains to note that all of the current Supreme Court Justices have had professional lives as professional judges, rather than some form of law practice (except for Justice Kagan). And he and others noted that the Court may be diverse in some ways, but not in socio-economics, or geography, or even religion (currently, the Court has no Protestants, six Catholics and three Jews).

An attendee could be excused for feeling some disconnect, sympathetic to the desire to see a diverse bench, while at the same time looking around the very room in which we sat …

Bob McWhirter presents at the We the People panel, Sept. 17, 2014.

Bob McWhirter presents at the We the People panel, Sept. 17, 2014.

Again, and in advance of the usual commenters who will say this is window-dressing (or worse): This is about excellent legal education, and a topic on which the State Bar of Arizona has pledged its focus. I found the discussion to be first-rate, but how can we know all of the excellent diverse commentary we are missing? A consistent absence of diverse voices on legal topics that disproportionately affect those very voices is odd, at best. And it makes you wonder if you are getting a full and complete examination of the issues underlying a Supreme Court docket.

That, after all, is what is promised.

OK, have at it in the comment box below.

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